Morrell v. Cook , 31 Me. 120 ( 1850 )

Howard, J.

A constable is authorized “to serve upon any person in the town, to which he belongs, any writ or precept, in any personal action, where the damage sued for and demanded shall not exceed one hundred dollars.” R. S. chap. 104, § 34. It is evident that the term “precept,” as used in this, and other sections of the same chapter, was designed to include executions. By section 19, sheriffs, and their deputies, are required to serve and execute, within their counties, “ all writs and precepts;” and the same terms are used in conferring and regulating the authority of those officers, and of coroners, in sections 20, 21, 22, 60, 61. In section 35, the word “ execution” is employed, showing that the authority conferred by section 34, was manifestly intended to embrace executions issued in personal actions, when the amount demanded in the execution did not exceed $100. So, in section 27, as amended. Act of amendment, 1841, chap. 1, sect. 14.

Being authorized to serve such executions, a constable must obey the legal mandate of the precepts in making the services. His power or authority, in this respect, is not diminished or varied, by being restricted to precepts in personal actions. The levy on real estate does not constitute a service of the process in a real action ; nor does the form of proceeding change the character of the process, although it may affect the title to real estate. The duty and authority of constables in levying executions, within their jurisdiction, upon real estate, are coextensive with those of sheriffs, and their deputies, in executing such precepts, in like manner. As the Legislature has made no distinction in this respect, there is none which we can make.

The original writ, on which the attachment of the real estate, taken by the levy, was made, was directed to, and served by a constable of Parsonsfield ; but the execution, when levied by a constable of that town, was not directed to that officer. About three months afterward, the District Court, on application, ordered an amendment to be made in the execution, by inserting a direction to any constable of Parsonsfield, which was accordingly done by its clerk. It is contended that the District Court had no power to amend its record, so as to affect the rights acquired by the defendant, a stranger to that record.

That court had authority to correct mistakes in its records, and errors in its processes. It could readily determine whether there was an omission in the direction of the execution, from its own records and files, and could supply the defect, when discovered. .But the legal effect of the amendment is a proper subject for consideration in this case. The constable had official power to serve the execution, if it had been directed to him, and he made the levy as the case assumes, in conformity with the forms and requirements of law. The omission to direct the process to him, as it appears, was an error of the court, or of its clerk, and was, in fact, a judicial error. Such errors are never suffered to operate to the prejudice of a party, when they can, properly, be corrected by an amendment. The defendant purchased the land subject to the attachment, and the rights that might flow from it. He might have known from the record, and the proceedings, that the title acquired by the plaintiff, under the levy, would be complete, when the omission in the direction of the execution should be supplied, and that, as a judicial error, it would be corrected by the court, in furtherance of justice. Under such circumstances, he acquired no rights by his purchase, which were injuriously affected by correcting the direction of the execution ; and the amendment was, in our opinion, competent and sufficient to sustain the levy, upon the facts presented. R. S. chap. 115, sect. 9, 10; Sawyer v. Baker, 3 Greenl. 29; Colby v. Moody, 19 Maine, 111; Rollins v. Rich, 27 Maine, 557; Hearsay v. Bradbury, 9 Mass. 95; Holmes v. Williams, 3 Caines, 98; Phelps v. Ball, 1 Johns. 31; McIntyre v. Rowan, 3 Johns. 144; Cramer v. Van Alstyne, 9 Johns. 386, n. a; Laroche v. Wasbrough, 2 Term Rep. 737; Newnham v. Law, 5 Term Rep. 577; Atkinson v. Newton, 2 Bos. and Pul. 336.

According to the agreement, the nonsuit is to be taken off, and the cause is to stand for trial.