McAlpine v. Smith

Appleton, C. J. The writ is dated December 13, 1877, and is made returnable at the April term of this court, one term intervening between the date and the return day at which it might and should have been returnable. On the second day of the term, the defendant filed a motion to dismiss because the writ was made returnable at the April term, when it should have been made returnable at the intervening January term of this court. The motion was sustained, and the action dismissed, and to the • dismissal the defendant filed exceptions. A writ returnable upon a day out of term is voidable. Wood v. Hill, 5 N. H. 229. When a term or more intervened between the teste and the return of the writ, it was held a mere nullity. Bunn v. Thomas, 2 Johns. 190, cited approvingly in Ames v. Weston, 16 Maine, 266. In Kelly v. Gilman, 29 N. H. 385, it is assumed as unquestionable law, that a writ made returnable, after an intervening term is voidable. Such has been the uniformly recognized law of this state in accordance with the forms of process in use. St. 1821, c. 63. If one term can be passed over, it is difficult to perceive why more [425] than one may not be, at the option of the plaintiff. The difference in the superior courts for Cumberland and Kennebec counties is the result of special legislation. C. 151, § 6, Stat. of 1868. C. 10, § 6, Stat. 1878. The defect here is apparent upon inspection. It was not necessary to plead it in abatement. When the defect is apparent of record, it may be taken advantage of by motion seasonably filed. Chamberlain v. Lake, 36 Maine, 388. Mace v. Woodward, 38 Maine, 426. Here the motion was filed within the time allowed for filing pleas in abatement. Exceptions overruled. WautoN, Babbows, Viegin and Libbey, JJ., concurred.