Inhabitants of School District No. 6 in Dresden v. Ætna Insurance , 1877 Me. LEXIS 154 ( 1877 )

Walton, J.

It is the settled law of this state that the non-existence of a plaintiff corporation can only be taken advantage of by plea in abatement. It cannot be set up as a ground of defense by a brief statement filed with a plea in bar, nor can it be given in evidence under the general issue. We are aware that a different rule prevails in some of the states, but that is no reason for disregarding our own rule. Such a defense, if made at all, should be made promptly. JBy holding that it can only be made by plea in abatement, and within the time allowed for filing such pleas, (which is the first two days of the first term,) this promptitude is secured. The rule is therefore a good one, and should not be departed from. Trustees v. Kendrick, 12 Maine, 381. Penobscot Boom Corporation v. Lamson, 16 Maine, 224. Savage Man. Co. v. Armstrong, 17 Maine, 34. Brown v. Nourse, 55 Maine, 230.

A petition for the removal of a cause from the supreme judicial court of this state to the circuit court of the United States, for any of the causes mentioned in the act of Congress of March 3, 1875, must be filed “before or at the term at which said cause could be first tried, and before the trial thereof,” or it will be too late and must be rejected. Such is the express language of the statute. In this state an action can be tried in the supreme judicial court at the first term, provided the writ has then been fully served and all the parties to the suit are legally before the court. True, it is not usual to try actions at the first term, but there is no law or rule of court now in force to prevent it. They can be then tried and that is sufficient under the act of congress above cited, to render a petition, filed at a subsequent term, too late to be effectual.

Our attention has been called to a recent decision of Judge Ballard of the circuit court of the United States for the district of Kentucky, published in the Chicago Legal News of May 19, 1877, in which he holds that the act of Congress of March 3, 1875, does not repeal sub-division 3 of section 639 of the Revised Statutes of the United States, and that, by virtue of said sub-division 3, a cause may still be removed to the circuit court of the United States at any time before a final trial is had, provided the petitioner makes affidavit of “prejudice or local influence.” This may be true. But the petition for removal in this case is not based upon sub-division 3 of section 639 of the Revised Statutes of the United States, and the petitioner did not make the affidavit therein provided for. The petition was in substance and in terms based upon the provisions of the act of March 3, 1875, and, as such, was, as already stated, filed too late to be effectual.

We discover no error in the rulings excepted to. The brief statement setting up the alleged non-existence of school district No. 6, in Dresden, was properly struck out and disregarded, for the reason that such a defense can only be made by plea in abatement. The petition for the removal of the cause was properly denied for the reason that it was not seasonably filed.

Exceptions overruled.

Appleton, C. J., Virgin, Peters and Lusbev, JJ., concurred.