Lumbert v. Lumbert , 44 Me. 85 ( 1857 )

Cutting, J.

The only question properly presented is, as to the correctness of the ruling regarding the pleadings, since the whole evidence does not appear to have been reported, and there is no motion to set aside the verdict as being against evidence.

We have decided in the case of Redington v. Frye, 43 Maine R., 578, that under the statute of 1855, ch. 144, it is imperative on the plaintiff, who would enforce his lien claim on lumber, to cite the owner into court, that he may have an opportunity to defend the suit, and unless the notice prescribed by that statute has been given, or the owner has appeared, before judgment rendered, the lien is dissolved; that the owner having appeared and defended, or having had the notice and neglected, the lion judgment is conclusive upon him and his property, to which the lien is alleged to have attached; that the proceedings, so far as it regards the owner, are in rem, to protect which against the claimant, he may controvert any fact necessary to establish the lien; that to do this successfully, he must be allowed to become a party to the pleadings; otherwise his appearance might be more expensive than beneficial.

In this case the owners appeared and took upon themselves the defence, as they were authorized to do by force of the statute; and the case finds that “ they filed two pleas; one in behalf of the defendants, that they never promised, and one on the part of themselves, denying the existence of any lien claim ;” thereby presenting two issues to the country which would require two verdicts. This was not in conformity with the provisions of R. S., ch. 115, s. 18. Under the general issue and the appropriate brief statements, one’verdict and special findings, under the direction of the court, would be sufficient to establish the rights of all the parties. For instance, on such an issue the jury might return a verdict for the plaintiff against the defendants, and at the same time find specially that the lien claim did or did not attach, which verdict and findings would be incorporated into the judgment, and thereby enlarge or limit ulterior proceedings. The second plea offered was not in bar of the action, and was properly excluded by the presiding judge.

Exceptions oevmded.