Weigley v. Teal

Opinion, Me. Justice Sterrett : There was no error in entering judgment against defendant below for so much of the plaintiffs’ demand as was not covered by defendant’s affidavit of defence. On October 24, 1888, two days after summons was issued and service thereof was accepted, and twelve days before return day, plaintiffs’ statement of claim, in due form under the act of May 25, 1887, was filed and served on defendant. On November 3d, his affidavit of defence, as to part of the claim, was filed ; on November 14th, rule for judgment as to the residue was taken, and on November 24th, nineteen days after return day, the rule was made absolute and judgment entered in favor of plaintiffs for $993.90. It is contended that the judgment, thus based on statement of demand filed and served less than fifteen days before return day, was unauthorized; that plaintiffs, having failed to file and serve their statement of claim at least fifteen days before return day, had no right to either file or serve the same until “ on or at any time after the return day; ” in other words, that the act does not authorize either the filing or service of the statement during the period of fourteen days immediately preceding the return day of the writ. We do not so understand the act of 1887. While it is not as clearly expressed as it might have been, we think it was intended to authorize the filing and service of plaintiff’s statement with the writ or at any time thereafter, and the entry of judgment, for want of an affidavit of defence, or for want of a sufficient affidavit of defence, at any time on or after the return day and after filing and fifteen days’ service of the statement of claim and service of the writ. The third section of [501] the act provides that plaintiff’s declaration shall consist of a concise statement of his demand as provided by the fifth section of the act of March 21, 1806, etc. The fourth section declares he shall be at liberty to serve a copy of bis statement on the defendant; and, this permission appears to be given without any restriction as to the time when or within which it may be done. The last clause of the sixth section provides, as to tlie action of assumpsit, that unless the defendant shall file a sufficient affidavit of defence within fifteen days after notice that the statement has been filed, the plaintiff may move for judgment for want thereof. In the present case the judgment was entered more than fifteen days after the return day and service of the statement. The filing and service before the return day was certainly as effective as would have been a filing and service on the return day. To hold otherwise would be sticking in the bark. Tbé act should be so construed as to effectuate the intention of the legislature. It was never intended that there should be an hiatus of fourteen days, next preceding tlie return day, in which the plaintiff can neither file nor servo his statement of claim. Tlie assignments of error are not sustained. Judgment affirmed.