Annis v. Gilmore , 47 Me. 152 ( 1859 )

The opinion of the Court was drawn up by

Mat, J.

If there was a sufficient direction in the- plaintiff’s writ against Marsh to authorize the attachment of the logs, masts and spars, upon which the plaintiff claims to have a lien, they being the property of Rufus Dwinel; and if said Dwinel had the necessary legal notice of the pendency of that suit, that he might appear and show cause why the plaintiff should not have judgment as upon a lien claim, of which we give no opinion; still, it appears that no, lien judgment was in fact rendered, the only judgment being against the defendant Marsh, in the same manner as if no lien had been claimed. It is not apparent, from the record, that any notice was taken by the Court of any such claim. The validity or invalidity of the lien should have appeared in the judgment of the Court. Such a judgment may follow the brief statement or other pleadings of the claimant, if he appear, or, if he does not appear after notice, it may be made up as in other cases upon a default.

No such -judgment appearing of record, the defendant cannot now be estopped from showing that the lien did not, in fact, exist; or, if it ever existed, that -it has been lost. The reason why the owner of such property, alleged to be subject to a lien, may be notified, is that the question of lien may be settled in the same suit wherein the attachment is made. The want of such notice vitiates the lien, if any existed. Redington v. Frye, 43 Maine, 578. And, for the same reasons, a judgment touching the validity of the lien, whether the general owner of the property appear or not, is absolutely necessary. In the case of Redington v. Frye, just cited, it is said by Cutting, J., “that the defendant having appeared and defended, or having had the notice and neglected, the lien judgment is conclusive upon him and his property to which the lien was alleged to have attached.” In the case before us, there being no lien judgment, the lien is lost; and, under such circumstances, the defendant is excused for not keeping the property attached, and for not selling it upon the execution, or producing it for that purpose.

It further appeárs that the execution against Marsh was in common form, containing no direction to the officer other than to satisfy it out of the goods, chattels or lands of the said debtor, and for want thereof, upon his body. It contains no allusion to the logs, masts or spars, which are the subject of this controversy. They could not therefore have been legally seized by virtue of it. Cunningham v. Buck, 43 Maine, 455. Eor this reason, also, the attachment was lost; and the defendant, even if the lien had continued to exist, was justified in his neglect to make sale of the property upon the execution, and for any official neglect in not keeping it for that purpose.

The writ, as now amended, contains a count for not returning the execution according to its direction. The writ, as originally drawn, was very imperfect. It sets forth, in substance, that the defendant Marsh was indebted to the plaintiff for personal services upon the lumber in controversy; that it was sued out to secure his lien claim thereon; that it was directed to, and placed in the hands of the defendant, as sheriff of’ Penobscot, for service, and by him was duly served by an attachment of the lumber, and returned into court; and that judgment thereon was duly rendered in his favor; and then alleges that neither the defendant or any of his deputies, for whose defaults he is answerable, did retain and keep the said logs, masts and spars, for the space of thirty days after the rendition of said judgment, to the end that the same might be taken on execution to satisfy said judgment, the same being no otherwise satisfied within that time.

By the amendment, the plaintiff was allowed to allege a new breach of duty, to wit, that the defendant never returned said execution. To the allowance of this amendment, the defendant seasonably excepted, and the question now is, whether it was within the authority of law to allow it.

The rule of law undoubtedly is, that where an intended cause of action is defectively set forth, and yet so as clearly to be distinguished from any other cause of action, in the manner it would be if the declaration was perfect, then the amendment may properly be allowed. Pullen v. Hutchinson, 25 Maine, 249. In the case before us, we think it is apparent that the cause of action, and the only cause, originally set forth in the writ, was the neglect of the defendant to keep the property attached for the satisfaction of the judgment upon the execution. Not. the slightest reference is made to any other neglect. So far from being alleged in any manner, that the execution had not been returned, the original count did not even allege that one had been obtained. The amendment was improperly allowed. Exceptions sustained, and Plaintiff nonsuit.

Tenney, C. J., and Rice, Appleton, Cutting, and Goodenow, JJ., concurred.