Swift v. Hawkens , 103 Me. 371 ( 1907 )

Peabody, J.

The writ in this case issued from the clerk’s office of the Supreme Judicial Court for the County of Knox. It was in form a regular and ordinary writ of attachment commanding the officers to whom it was addressed to attach the goods and estate of the defendants therein named to the value of five hundred dollars.

The officer’s return showed the attachment of "a chip the property of the Rockland Thomaston & Camden Street Railway, the within named defendants.” The defendants, Hawkens and Chisolm, each seasonably filed a motion to dismiss the action as to them for want of sufficient service of the writ, they appearing for that purpose only. Thereupon the sheriff petitioned the court for leave to amend his return to this writ by inserting after the words "a chip the property of the Rockland Thomaston & Camden Street Railway,” and before the words "the within named defendants” the additional words and names "Thomas Hawkens and Valentine Chisholm,” in accordance with the facts, alleging that the facts were that in each instance he severally attached a chip as the property of each of the defendants named in the writ in this action.

Upon the petition to amend the return the defendants requested a hearing and evidence as to'what the sheriff in fact did, but this request was refused, and the officer was permitted upon his statement of the facts to amend the return in accordance therewith, and the defendants’ motion to dismiss was denied, by the presiding Justice.

To this ruling and action the defendants excepted and the case is before this court on the exceptions.

The bill of exceptions states that a summons was duly served upon each of the defendants within the county. There was therefore a legal service of the writ upon them if the officer has complied with the precept, so far as to give the court jurisdiction over the excepting defendants. The return shows an omission on the part of the officer to attach property of all of the defendants as directed by the writ, or it is defective in not stating the fact of an attachment if made. If defective in this respect it was clearly amendable to accord with the fact. A nominal attachment was, with the service of the summons, a compliance with the form of the writ. The sheriff in his official capacity states that he made a nominal attachment of property as to all the defendants. His act in changing the printed word defendant to defendants in his return, by writing the letter "s” with a pen indicates that the attachment applied to a plurality of defendants, and confirms his statement.

A hearing as to the physical fact of attaching a chip as the property of the defendants would be an idle ceremony. It was a legal fiction which cannot be denied when stated in the amended return ; and the amended return shows a full compliance with the form of service of the writ of attachment on defendants.

Exceptions overruled.