State v. Reed , 107 Me. 435 ( 1910 )

Whitehouse, J.

This is an action of scire facias brought in behalf of the State against the respondents who acknowledged themselves to be jointly and severally indebted to the State on a recognizance in a criminal prosecution in the Supreme Judicial Court against the defendant Reed as principal and the other defendants as sureties. The action was made returnable at the April term, 1910, of that court. The officer’s return on the writ shows that March 28, 1910, service of the precept was made on the defendant Alpren only, and states no reason for the failure to make service on the other two defendants. The action was duly entered at the return term and continued to the next September term, when on the 29th day of the term, the death of the defendant Thornton was suggested on the docket and the State discontinued as to him. On the same day the defendant Morris Alpren filed a demurrer, in which it is alleged that "the plaintiff’s declaration is insufficient in law in this, that the plaintiff in its writ has declared upon a joint and several indebtedness and its form of action in this suit is a joint action against Fred Reed, Fred Thornton and this defendant jointly, whereas the record of the officer’s return of said writ shows that this defendant alone has been summoned to answer to this writ and no reason is shown why the other two defendants should not be summoned.”

The demurrer was overruled by the presiding Justice and the case comes to the Law Court on exceptions to this ruling.

It is the opinion of the court that the ruling was correct. The defendants’ demurrer goes wholly to the plaintiff’s declaration, and he prays judgment for want of a sufficient declaration. The officer’s return is no part of the declaration, and is not reached by the demurrer. State v. Walsh, 96 Maine, 409. In that case it was held that upon demurrer to the complaint only in a criminal case the court is not authorized to consider alleged defects in the warrant or return. See also State v. Kyer, 84 Maine, 109.

In the case at bar it is not in controversy that the writ and declaration are in proper form. The defendants only complaint is that the officer’s return fails to disclose the reason for not serving the precept on all of the defendants. In State v. Chandler, 79 Maine, 174, cited by the defendant, it appeared from the face of the declaration that the suit was against two of three joint contractors, and there being no averment of the death of the third one who was not made a defendant, it was held, under the familiar rule, that such non-joinder was ground for demurrer as well as abatement. But in the case at bar there is no claim or suggestion that any defect appears on the face of the plaintiff’s declaration.

If the defendant had any legal grievance, his remedy therefor if any, was not by demurrer. 1 Chitty on Pl. (16th Ed.) 51; Bank v. Treat, 6 Maine, 207 ; Sawtelle v. Jewell, 34 Maine, 543 ; Nickerson v. Nickerson, 36 Maine, 417; Richardson v. Rich, 66 Maine, 252.

The certificate must accordingly be,

Exceptions overruled.

Judgment for the State.