Mace v. Woodward

Tenney, J. — A special appearance was entered for the defendant, in order to present the motion to the Court to dismiss the action for want of a legal service. [427] Pleas in abatement must be filed within two days after the entry of the action, the day of entry being reckoned as one. Rule 17, Regulen Generales, 1 Greenl. 416. Motions in the nature of pleas in abatement should be presented in the same time. The motion in this ease was too late by the rule, and could not avail, if the action could proceed, provided none had been made. But the return on the writ, in which the damage sued for is the sum of $8,000, purports to be signed by a constable, and it does not constitute a service, such as the statute requires. R. S., c. 104, § 34. A judgment in the action would be erroneous. Hart v. Hutchins, 5 Mass. 260. The Judge had the power, ex officio, to dismiss the action. Lawrence v. Smith, 5 Mass. 362; Tingley v. Bateman, 10 Mass. 343. An entry should be made that all further proceedings stay. Shepley, C. J., and Howard, Appleton and Hathaway, J. J., concurred.