Monaghan v. Longfellow , 82 Me. 419 ( 1890 )

Peters, C. J.

This case is between the holder of a Holmes note and an officer who attached a wagon upon which the Holmes note was secured. After the attachment, the holder of the note possessed himself of the wagon by a replevin writ against the officer.

One question is whether a Holmes note is so much of the nature of a chattel mortgage, that the holder cannot maintain an action of replevin for' the property against an attaching officer until he has given to the officer forty-eight hours’ notice in writing of his claim and the amount of it, as required by R. S., c. 81, § 44. No notice is shown to have been given in the present instance. We think notice was necessary. The language of the section is broad. It covers property, “mortgaged, pledged, or subject to any lien created by law, and of which the debtor has the right of redemption.” A Holmes note has been placed by the statutes in all respects on the footing of a mortgage. Without form of a mortgage, it is in effect a mortgage. The condition precedent contained in the note is by statute substantially converted into a condition subsequent. It must be recorded, and may be foreclosed or redeemed in the same manner that common mortgages may be. R. S., c. 91, § 7; R. S., c. 111, § 5. There is exactly as much propriety in requiring a notice to the officer, in a case like this, as where the instrument is in the literal form of a mortgage.

Then comes the question whether, in the present case, the necessity of a notice has been waived. When the case came up at the first trial, two questions of a technical character arose, and it appears that some discussion occurred between -the counsel and court in relation to the disposition of the questions. The two questions were whether the notice to the officer was necessary, and whether the note had been legally recorded or not. The counsel for the plaintiff contends that, as the first point stood in the way of a decision on the second point, being preliminary to it, the first point was expressly waived by counsel. The counsel for the defendant denies this and contends that there was no waiver and no intention on his part to admit any such thing. The counsel on both sides have testified about the matter and understand it differently. The presiding justice ruled that the record of the note in the town book of mortgages was not legal on account of informality, and ordered a nonsuit on that point. Exceptions were filed and sustained, and a new trial was ordered, as may be seen in Monaghan v. Longfellow, 81 Maine, 298.

Now, while we are not satisfied that the counsel for the defendant expressly consented to a waiver of any objection presented by him, nevertheless we are of opinion that the point has been in effect waived by the course of the trial. The counsel for defense examined the plaintiff’s bill of exceptions before they were presented for allowance, and made no objection against them to the court. It does not change the matter that the plaintiff’s counsel induced', if he. did, the counsel of the defendant to permit the exceptions to be allowed, omitting therein all mention of the objection that notice was not given, and all facts on which such objection could be founded. It was the duty of the defendant’s counsel to see that the bilí of exceptions contained all necessary facts and statement. A case should not be sent to the law court, when several law questions are presented at nisi prius, to decide one of such of questions at a time, and be sent up as many times as there are questions presented. Both questions could have been as well disposed of at nisi prius, and in this court as one matter, as in any other way. This result involves no more than the question of costs, inasmuch as the plaintiff could have returned the property to the officer, and then given the required notice, and brought his action anew.

Judgment for plaintiff for one cent damages and costs.

Virgin, Libbey, Emery and Foster, JJ., concurred.