Ward v. Curtiss

Church, Ch. J. This writ is dated on the 10th day of November, 1845, and, as appears by the return of the officer, indorsed upon it, was duly served, on the 14th day of January, 1846, and was legally returned into court, with that and no other certificate of service. Every thing appears in the usual and legal form. To this writ and declaration the defendant has made no objection, but has appeared and pleaded the general issue, and proceeded to trial. And upon a trial to the jury, for the first time, the defendant objects, that this action was in truth commenced on the 10th day of November, 1845, and so that a cause of action which accrued after that date, as it is conceded this did, cannot be proved and sustained under this process. The conceded facts, relied upon, as sustaining this objec [293] tion, are, that this writ, which was served on the 14th day of January, and returned and certified as served on that day,had in fact also been served, by the same officer, by an attachment of the same property, on the 10th day of November previous, at which time, a copy had been legally left in service with the defendant. It is also admitted, that the plaintiff, after the proceedings of the 10th day of November, and while the writ was in the hands of the officer unreturned, discovered, that the claim which he intended to recover by his suit, was not yet due, and therefore, that these proceedings were entirely ineffectual to secure his debt. He had obtained nothing by his attachment. In this state of things, the plaintiff could have suppressed or destroyed his writ, and by procuring a new one, he could, without legal objection, have served it, on the 14th day of January. Instead of doing this, however, before the writ had been returned, the officer, by his direction, erased the original certificate or indorsement of service, and made use of the same writ, for the purpose of securing his debt, by a new attachment. The only process which we can recognize, and which has become one of the files and records of the court, and which has been returned as having been served at all, is this one served on the 14th day of January, 1846; and it is to this which the defendant has made answer, and upon this proceeded to trial. The acts done on the 10th day of November before, as it seems to us, no more affect this proceeding, than if this were a new writ and process, served after the former one had been destroyed. There was no stamp or other duty payable, which made it necessary for the plaintiff to obtain a new writ. It would be well to look at the effects which might follow upon the present state of this record, if the objection of the defendant should prevail. Suppose no articles of charge which fell due between the 10th day of November, 1845, and the 14th day of January, 1846, could be recovered in this suit, and the plaintiff should commence another action to recover them. We think it certain, that this record would bar their recovery ; for this judgment, upon the present condition of the record, would embrace all book debt claims existing before the 14th day of January, 1846. We think also, that this objection, if of force, should have [294] been interposed at an earlier day, and in a different form. Judge Swift, in his Digest, vol. 1. p. 610. says, that if it appear, that the suit was commenced before the cause of action had accrued, this may be pleaded in abatement. Whether this be so or not, if the rights of the defendant had been essentially affected, by the act of the officer, in erasing his first indorsement of service, we think he might have been compelled to restore it, either upon motion, or writ of mandamus, so that the whole of his proceedings under the writ should appear upon the writ itself. Moreover, as it appears, that the service of the 10th day of November, was made under a misapprehension, and that the second service was necessary to secure the debt, we are clearly of opinion, that the just principle so often recognized by our courts, is strongly applicable ; that if the action first commenced be misconceived, or was ineffectual to secure the demand, it will not abate a second suit instituted bona fi.de and without vexation. The only complaint of the defendant, therefore, is, that the plaintiff made use of the same writ on both occasions. And inasmuch as this has produced no injury to the defendant, nor violated any principle of law known to us, we cannot advise a new trial. In this opinion Waite, Stores and Ellsworth, Js., concurred. Hinman, J. dissented. New trial not to be granted.