McLain v. Fowler

Haskell, J. This is an action of assumpsit to recover $22.40, brought in the Bangor Municipal Court which had jurisdiction thereof. The act of 1895, c.,211, § 4, provides: “If any • defendant in any action in said court, where the amount claimed in the writ exceeds twenty dollars, or his agent or attorney, shall, on the return term of the writ, file in said court a motion asking that said cause be removed to the supreme judicial court, and deposit,” etc., “the said action shall be removed into the supreme judicial court for said county,” etc. The action is there to be entered upon the docket of the preceding term, or upon the docket of the court if [271] then in session, and stand in order for trial at the next term. The pleadings in the Bangor Municipal Court are to be the same as in the supreme judicial court. This statute gives the defendant a right of removal at the return term of the writ. But it is contended that the filing of pleadings by defendant is a waiver of such right. We do not think so. The defendant should have a right to file pleadings and then remove the case, so that such issue as he raises may be in order for speedy trial. The plaintiff surely cannot be prejudiced by such course. On the contrary, he is apprised of the issue tendered him, and given time to meet it. Again, pleas in abatement must be filed, if at all, within the first two days of the term, meaning of course, of the return term in the municipal court; and unless the defendant may raise questions of abatement, and then remove the case, he cannot have tbe benefit of abatement decided by the supreme court at all, for when the case shall be entered there, ordinarily the time for abatement will have elapsed. We think the proper construction of the act is to allow defendants to file such pleadings as they wish at the return term of the writ, and then remove the case; or to remove the case without pleading and thereby be debarred of all matters that should have been raised within the first two days of the return term. In other words, all matters in abatement must be pleaded in the lower court or waived. In the case at bar, the defendant, on the first day of the return term, pleaded in abatement, and on the third day the- plaintiff demurred and the defendant joined in demurrer and moved to remove the case. This motion should have been granted, but was refused, to which refusal exceptions are brought to us. They must be sustained. When the motion to remove the case was filed the court had no further power over it than to grant the motion with the appropriate orders. Exceptions sustained. Motion granted.