National Publicity Society v. Raye , 115 Me. 147 ( 1916 )

King, J.,

dissenting. The facts involved in the case.have been fully stated in the majority opinion of the court and need not be restated.

The plaintiff’s writ, although admittedly in due and sufficient form, properly served, and duly entered in the supreme judicial court for Washington county, which court had complete jurisdiction of the parties and of the subject matter of the action, was quashed under a plea in abatement. The sole alleged reason for quashing the writ was that the plaintiff’s cause of action came within the concurrent jurisdiction of the said supreme court and the Eastport municipal court, and that Judge Pike, the Judge of 'the latter court, had acted as counsel in the preparation of the writ in violation of a provision in the charter of his court whereby the Judge thereof is prohibited to act as counsel in any action within its jurisdiction.

We entertain much doubt if it should be held that Judge Pike in doing what he did in this case violated the inhibition in the charter of his court prohibiting the Judge thereof to act as attorney or counsel in any action ‘‘within the jurisdiction of said court.” But assume that his act in preparing the writ was a violation of that prohibition, does that go to the abatement of the plaintiff’s writ? W’e think not. To so hold must be to decide that his so acting in violation of the prohibition vitiated and invalidated the writ. And indeed that appears to be the conclusion of the majority opinion, for it declares that the prohibition “must extend to both the actor and the act if the intended result is to be accomplished.” But the prohibition itself does not so provide. The Legislature did not declare that if any thing should be done in violation of the prohibition it should be null and void. And we perceive no support either in reason or authority for a conclusion that it was the legislative intent that this prohibition should be enforced by a sacrefice of the rights of innocent parties, the language of the prohibition itself not so providing.

If the prohibition extends to the act as well as the actor, as the majority opinion holds, how shall that theory be applied in a case where such prohibited counsel acts with other counsel ? Would this writ have been subject to abatement just the same had Judge Pike acted only in conjunction with some other counsel in its preparation ? An affirmative answer would be in accord with the reasoning of the opinion. But it does not seem to us that a construction of the prohibition which leads to such results is justifiable.

We are of the opinion that the plaintiff’s writ should not have been quashed. It had been issued by the court itself, under its seal and teste, signed by its clerk, and served and returned to the court as directed. It was before the court as its own legal process, complete and sufficient in every particular, and should not have been quashed as a nullity simply because one forbidden to act as counsel in the case had in fact acted in the preparation of the writ. The plaintiff was innocent. It was unaware that its counsel, Judge Pike, was prohibited, if he was, to act for it. The plaintiff was without any fault in the premises. It was in fact represented in court, before the writ was quashed, by other counsel, C. B. & E. C. Don worth, who requested that the writ be adjudged good and the defendant be required to answer over, but that request was denied. As we have pointed out the plaintiff’s writ was admittedly sufficient and entered in the court having jurisdiction of the action. We think it was the plaintiff’s legal right to have its writ remain in court, and to be permitted to prosecute its action either in person or by other counsel, at least. Holding .otherwise, and that the plaintiff should be turned out of court, with costs against it, under the circumstances disclosed in this case, is we think a decision out of harmony with those sound and liberal principles which underlie and promote the present-day progress and advancement in judicial procedure.

It is therefore our opinion that the exceptions, should be sustained.

Mr. Justice Haley and Mr. Justice Madigan concur in this dissent.