Lewiston Steam Mill Co. v. Merrill , 78 Me. 107 ( 1886 )

. Haskell, J.

Writs of error to reverse, for errors in law, four several judgments of this court, rendered in the county of Oxford.

The transcripts presented at the trial prove records, that comply with the requirements of the statute, 34. S., c. 79, § 11, and show the nature of the judgments rendered. The records of the judgments sought to be reversed are sufficient in form for abbreviated records under the statute, however defective they may be without its aid. Writs of error, for errors in law, lie only for defects apparent upon the face of the record. Valentine v. Norton, 30 Maine, 194; Paul v. Hussey, 35 Maine, 97; Starbird v. Eaton, 42 Maine, 569 ; McArthur v. Starrett, 43 Maine, 345; Wood v. Leach, 69 Maine, 555.

' If there be error in law, that would appear from an extended, full record, which either party desires to avail himself of upon a writ of error, he should, before trial, require the clerk to make a full, extended record of the judgment sought to be reversed, and if he refuses so to do, pi’ocure an order from the court directing such record to be made, and then present a transcript of such extended, full record, that the court may know from inspection of it whether an error exists.

In the case at bar, the parties have agreed, that the pleadings omitted from the records, may be treated as properly included in them, and under the peculiar circumstances, that agreement will be regarded by the court.

Two errors in law are assigned.

1. That the accounts annexed to the writs are insufficient. The actions were assumpsit, according to the accounts annexed. The accounts set out claims for labor performed and the price demanded. The plaintiff in error was duly cited to become party defendant in those actions, but interposed no defense. The insufficiency of the declarations, it might have availed itself of. It did not do it. The objections presented come too late. They are not available in this action. They were proper subjects of amendment, and are cured by default. Enough is shown by the declarations to sustain the judgments l’endered. Full and complete averments show, that the services sued for were rendered upon the logs attached, and that the suits were seasonably brought. The statute provides that no proceeding shall be reversed for error, that by law is amendable. R. S., c. 82, sec. 10.

2. That there was no sufficient attachment of the logs. The record recites a command in the writs, for the officer to attach certain specified logs, upon which a lien is claimed, and a return of the officer, that he did attach the same and put his mai'k upon them, and that, within five days thereafter, he filed in the clerk’s office of the town where the logs lay the usual copy of his attachments. Attachments of chattels are made by gaining possession of the property attached ; and in certain cases may be preserved by recording the attachments and abandoning the actual possession, or control.

In these cases the property attached was logs on the bank of a river, clearly, property that could not have been immediately removed to a place of keeping within the absolute control of the officer, by reason of its bulk; and actual possession of it, he could only retain by his presence, or the presence of his servant, at unnecessary cost. The record discloses an attachment within the express terms of the statute, followed by judgment in rem, without error, or fault. The defendants have interposed no plea, and the order is,

Plaintiffs nonsuit.

Peters, C. J., Walton, Virgin, Libbey and Poster, JJ., concurred.