페이지 이미지
PDF
ePub

'This return showed an attachment of the rection of Rev. St. c. 76, § 33. The sale of real estate of the Monson Maine Slate Com. land on execution was authorized by section pany-the important fact to the party exam. 42 of the same chapter. ining the title of the slate company. When But if the sale had been under the act of the examiner went to the clerk's office to as 1899 it would be good. There is no vested certain if the suit on which the attachment right to a particular form of remedy. If a was made was pending, he would find a suit substituted remedy is given, which does not against the company in favor of Rodney C. abridge the usefulness of that existing at the Penney. It can hardly be conceived that in time the right accrued, there is no cause for such case the seeker would be deceived. complaint. The act of 1899 in no way deOn the contrary, he would have ample no feated, limited, or abridged the creditor's tice of the attachment of the real estate of remedy existing under the law when his atthe slate company, and a pending action. tachment was made. Somerset Railway V. This is all the statute contemplates, and all Pierce, 88 Me. 91, 33 Atl. 772; Atkinson v. that is useful to the investigator. The cases Dunlap, 50 Me. 116; Oriental Bank v. Freeze, cited are of wrong names of the defendant. 18 Me. 109, 112, 36 Am. Dec. 701. It is much more necessary that the name of The sale on the Penney execution related the party whose estate is attached should be back to the date of attachment on the writ, correctly shown by the records in the reg. which was long prior to the attachment on istry of deeds, than that of the plaintiff. the writ of the Hide & Leather Bank. Under Whose estate is attached is the vital ques it the defendant acquired title, and the detion. It is immaterial by whom it was at mandant has none. tached, if enough is stated to enable the suit Judgment for defendant. to be understandingly traced on the docket of the court. We think this condition was met by the return here, and that the attachment

(97 Me. 278) was perfected.

Appeal of ABBOTT. Judgment in the Penney suit was rendered

(Supreme Judicial Court of Maine. Jan. 9, at the April term of the Supreme Judicial

1903.) Court, 1900. Execution duly issued, and the

PROBATE-RIGHT OF APPEALPLEADING. officer seized the lands on the 4th day of

1. The right of appeal from any decree or May, 1900, within 30 days after the rendition order of the probate court is conferred by statof judgment, and, after giving the notices ute, and is, therefore, conditioned upou à comrequired by law, sold them to the defendant

pliance with all its requirements.

2. No person has the right of appeal unless on the 11th day of June, 1900, and gave a he has a pecuniary interest in the subject-matdeed thereof in due form, which was duly ter of the decision or decree by which he claims recorded.

to be aggrieved.

3. In order to establish by proof, if denied, It is objected that as the defendant was

such interest as entitles the appellant to apdefaulted at the January term, 1897, and the peal, it must be alleged in his petition or reaaction was thence continued for judgment to sons of appeal.

4. The statement that he is interested as the succeeding term, in April, and no docket

brother in the estate of the deceased is not a entry of farther continuance for judgment at sufficient averment of legal interest, as there that term, the judgment should have been may be classes of nearer kindred entitled to the rendered then. If it had been, the lien of the

whole estate.

5. Held, that the court under this allegation attachment would have expired before the

had no authority to consider the merits of the seizure was made on the execution in 1900.

case, and the appeal in this case should be The docket shows that the action was upon dismissed, because the record of the proceedings it at the January term, 1900, and thence con

fails to show that the appellant has the right

of appeal. tinued for judgment to the April term fol

(Official.) lowing, when judgment was in fact entered. The statute preserves an attachment for 30

Appeal from Supreme Judicial Court, Knox days after judgment. For what reason the

County. action remained on the docket from the April

In the matter of the estate of C. B. Abbott,

deceased. term, 1897, to the April term, 1900, does not

Appeal of Alton C. Abbott from a appear, but it must be presumed that there

decree granting an allowance to Hattie N. was a sufficient reason for it. It did in fact

Abbott, widow of the deceased. Appellee so remain, for which various legal causes

excepted. Appeal dismissed. may be supposed. We cannot assume that it

Argued before WISWELL, C. J., and EMimproperly remained.

ERY, STROUT, PEABODY, and SPEAR, JJ. It is also objected that the sale on the J. H. Montgomery, for appellant. R. I. execution was made under chapter 115, p. Thompsou and E. K. Gould, for appellee. 119, Pub. Laws 1899, which was not in force when the attachment was made; and it is PEABODY, J. This case is on exceptions 'urged that the remedy existing at the time by the appellee, Hattie N. Abbott, to the of the attachment was a vested right in the ruling pro forma of the presiding justice plaintiff, which must be preserved on the overruling two motions to dismiss the apfinal process. It is sufficient to say that the pellant's appeal from a decree of the judge officer, in making the sale, followed the di of probate for the county of Knox, granting

her an allowance as widow of Calvin B. Abbott, deceased.

1. The ground of the first motion is that the appeal recited that the appellant, Alton C. Abbott, appealed from said decree of the probate court “to the Supreme Judicial Court, being the Supreme Court of Probate, to be held at Rockland within and for the county of Knox on the 3d day of September, A. D. 1901." There is no term of said court held on the 3d day of September, but the term of said court at which the appeal, if valid, was cognizable was held on the third Tuesday of September.

2. The ground of the second motion for dismissal is that neither the appeal nor the reasons of appeal show any right of appeal on the part of the appellant, and that they are, therefore, insufficient in law.

We think it unnecessary to decide the technical point presented in the first motion. The appellee was in court, and seasonably made the second motion, and the conclusion we reach upon the question thereby raised is decisive of the case.

The statute provides, with reference to appeals from decrees of the probate court, as follows:

"Any person aggrieved by an order, sentence, decree or denial of such judge may appeal therefrom to the Supreme Court to be held within the county, if he claims his appeal within twenty days from the date of the proceeding appealed from." Rev. St. C. 63, § 23.

The right of appeal from any decree or order of the probate court is conferred by statute, and is, therefore, conditioned upon a compliance with all its requirements. Bartlett, Appellant, 82 Me. 210, 19 Atl. 170; Moore v. Phillips, 94 Me, 421, 47 Atl. 913; 2 Woerner's Am. Law of Adm. § 543.

No person has the right of appeal unless he has a pecuniary interest in the subjectmatter of the decision or decree by which he claims to be aggrieved. This interest must be shown, or the appeal will be dismissed. Briard v. Goodale, 86 Me. 100, 29 Atl. 946, 41 Am. St. Rep. 526; Pettingill v. Pettingill, 60 Me. 411; Deering V. Adams, 34 Me. 41; Norton's Appeal, 46 Conn. 527; Cecil v. Cecil, 19 Md. 72, 81 Am. Dec. 626; 2 Woerner's Am. Law of Adm. § 544.

In order to establish by proof, if denied, such interest as entitled him to appeal, it must be alleged in his petition or motion claiming an appeal. Zumwalt v. Zumwalt, 3 Mo. 269; Jenks v. Howland, 3 Gray, 536; Briard v. Goodale, 86 Me. 100, 29 Atl. 946, 41 Am. St. Rep. 526.

In Deming's Appeal, 34 Conn. 201, it is held that the interest of the appellant must either appear on the face of the proceedings in the probate court, or it must be a verred in the notice of appeal.

in Veazie Bank v. Young, 53 Me. 555, Barrows, J., says: "It is the duty of every appellant from a decree of a probate judge, as

the preliminary proceeding, to establish his interest in the subject matter of the decree from which he claims an appeal."

The appellant has not, either in his reasons of appeal or notice, affirmatively alleged such facts as, if proved, would show that he is aggrieved within the meaning of the statute as construed by the decided cases. In his reasons of appeal he states that "any allowance is an injury to the balance of the estate," but he does not show that he is interested in the estate. In his notice of appeal he states that “he is interested as brother in the estate" of the deceased, but this is not a sufficient averment of a legal interest, as there may be several classes of nearer kin. dred.

At the hearing on the appeal the appellant offered to show that he was an heir to the estate, but the presiding justice upon this motion to dismiss properly declined to consider evidence affecting the validity of the decree of the judge of probate. The court had no autority, under the allegation, to proceed to consider the merits of the case. The appeal should be dismissed because the record of the proceedings fails to show that the appellant has the right of appeal. Moore v. Phillips, 14 Me. 421, 47 Atl. 913; Briard v. Goodale, 86 Me. 100, 29 Atl. 946, 41 Am. St. Rep. 526; Gray v. Gardner, 81 Me. 554, 18 Atl. 286; 2 Woerner's Law of Adm. § 544.

We do not decide whether the reasons of appeal might be amended in accordance with the reasoning of the court in Smith v. Chaney, 93 Me. 214, 41 Atl. 897, for that question is not presented. No amendment was of. fered.

Exceptions to ruling on the second motion sustained.

Appeal dismissed, with costs for appellee,

(97 Me. 315) EVELETH v. GILL, (Supreme Judicial Court of Maine. Feb.' 11,

1903.) FORCIBLE ENTRY AND DETAINER-PLEADING -FORFEITURE-NUISANCE-RE

PORTED CASE. 1. In a case reported to the law court on the pleadings and the evidence, judgment cannot be rendered for the plaintiff unless the declaration contains allegations showing a cause of action, and the evidence amounts to proof of the particular cause of action alleged.

2. Rev. St. 1883, c. 17, § 3, authorizing the owner of a building or tenement to maintain the summary process of forcible entry and detainer to eject a lawful tenant or occupant because of his using the premises for any purposes denominated a common nuisance in section 1 of the same chapter, is a statute penal in its nature, and requires strictness of allegation and proof iu the use of such summary pro

3. A mere general statement in the declaration in a forcible entry and detainer process that the defendant had lawful entry into the lands and tenements of the plaintiff, and that his “estate in the premises was determined" on a given date, is not a suficient statement of a case under the statute above cited.

cess.

4. Even if the evidence adduced under such a building stands, and wbose estate in the defective declaration amounts to proof of a case premises was determined on the 15th day of under the statute, it cannot be given effect, for want of necessary allegations in the declaration.

February A. D. 1900, then and still does (Official.)

forcibly and unlawfully refuse to quit the

same." Report from Supreme Judicial Court, Piscat

The plaintiff thus acknowledges that the aquis County.

defendant was originally in lawful possession Action by Hattie Eveleth against Louis

under a lawful estate, but alleges that his Gill. Case reported, and plaintiff nonsuit.

estate was terminated on February 15, 1900. Forcible entry and detainer begun in the To prove such estate and termination thereDover municipal court to recover possession of, the only evidence adduced by her was of the St. Germain House, in Greenville. that on the day named the defendant was The defendant pleaded the general issue, using the building or tenement, or some part and, by way of brief statement, that be held thereof, for one of the purposes forbidden a lease of the land, upon which the rent had by section 1, c. 17, Rev. St. (the Nuisance been fully paid, and was owner of the build Act). The plaintiff contends that upon such ing; and, second, that Rebecca W. Crafts evidence she is authorized to make immedi. was owner of two-thirds of the real estate, ate entry without process, or to avail herself and that he was occupying under her. Judg- of the process of forcible entry and detainer ment having been given for the defendant, provided by Rev. St. c. 94, and cites section the plaintiff appealed to this court, sitting at 3, c. 17, Rev. St., as follows: pisi prius.

“If any tenant or occupant, under any lawArgued before WISWELL, C. J., and EM ful title, of any building or tenement not ERY, WHITEHOUSE, STROUT, SAVAGE, owned by him, uses it or any part thereof and POWERS, JJ.

for any purpose named in section one, he C. W. Hayes and W. H. Powell, for plain

forfeits his right thereto, and the owner tiff. Henry Hudson, for defendant.

thereof may make immediate entry without

process of law, or may avail himself of the EMERY, J. The case is this: John H. remedy provided in chapter ninety-four.” Eveleth in his lifetime executed to the de Granting her contention as to her rights fendant, Gill, a written agreement to sell under section 3, c. 17, we think it clear that, and convey to him a building in Greenville in resorting to the legal process authorized for $1,628, to be paid in monthly installments, only by the statute, she must state, as well with interest, and also to lease to him the as prove, a case within the terms of the land upon which the building stood, for 15 statute, and this she has not done. years, at a rental of $10 per year. Also, by The summary process of forcible entry and the terms of the agreement, Mr. Gill was to detainer at common law was a criminal or have possession of the premises until he quasi criminal process, and was only allowed failed to perform the conditions of the agree where the entry and detainer were with ment. Mr. Gill immediately entered into force--the strong band. The legislature of possession of the premises under this agree this state has devised a process of the same ment, which was dated May 1, 1895, and name, but now purely civil in form and nahad made all the payments called for by the ture, for the cases specified in the statute. agreement up to the beginning of this litiga It follows, under the general law of pleadtion.

ing, that the plaintiff in such a process should John H. Eveleth died November 7, 1899, allege in his declaration the facts declared and the plaintiff, Hattie Eveleth, became the by the statute to be an occasion where the owner of the one-third of his interest or title process may be used. Thus it was said by in said building and land. February 21, this court in Treat v. Bent, 51 Me. 478, “This 1900, the plaintiff began this process of forci process of forcible entry and detainer is one ble entry and detainer against Gill in the created and regulated by the statutes, and, Dover municipal court to remove him from in order to be maintained, must come clearly the premises. Judgment was rendered for within their provisions." In that case the the defendant in that court, and the plaintiff process was quashed because it did not "disappealed; and the whole case, with the plead close enough upon its face to give the court ings and evidence, is reported to the law jurisdiction.” In Woodman v. Ranger, 30 court for determination.

Me. 180, the second section of Rev. St. 1811, The plaintiff's declaration is as follows: c. 128, authorized the process for a forcible "In a plea of forcible entry and detainer, for entry or forcible detention. The fifth section that the said Louis Gill, at said Greenville, authorized the process for a landlord whose on the 15th day of February A. D. 1900, tenant unlawfully refused to quit after his having before that time had lawful and tenancy had been terminated by a 30-days peaceable entry into the lands and tenements notice in writing. The plaintiff apparently of the said Hattie Eveleth, situated in said alleged a case under the second section, but Greenville, to wit, a certain building sit was unable to prove that case. He then of. uated on the south side of West street in fered to prove a case under the fifth section, said Greenville, and known as the 'St. Ger but was nevertheless nonsuited because he main House,' and the land on which said bad not alleged a case under that section.

In the case at bar it is clear that the plain the lessee's continued occupation is lawful, and tiff has not alleged a case under section 3,

the subsequent grantee of the lessor cannot

maintain forcible entry and detainer based upC. 17, Rev. St., which is the only case she

ou such forfeiture. has adduced any evidence of. There is in 2. It is the owner of the premises at the her declaration no allegation that the defend time of the forfeiture who may bring forcible ant is a "tenant” or “occupant," no allega

entry and detainer, and he alone.

3. Such a lease will remain in force until he tion of what particular purpose named in who is owner at the time of forfeiture detersection 1 he had used the building for, and, mines the right of possession by entry or 110indeed, no allegation that he had used it for

tice or suit within seven daye, under Rev. St.

c. 94, & 1. any of those purposes. There is no allega

4. The word “forfeited,” in Rev. St. c. 17, § tion to apprise the court or the defendant that 3, has the same meaning and effect which the evidence will be offered of a case under that commou law gives the same word in leases.

Hence, if a lessee "forfeits" his lease under statute. The statute is highly penal. It

Rev. St. c. 17, § 3, the lease is not ipso facto works a forfeiture of possibly valuable rights absolutely void, but is voidable at the option of purchased by large expenditure. There the lessor or owner. should therefore be full particularity and cer

5. When a lease for a term of years provides

that "if either party should see fit to terminate tainty of allegation in all legal proceedings

this lease before it expires he shall pay the to enforce it. The statutory case should be other fifty dollars," held, that either party has fully and clearly stated. Want of allegations a right to terminate the lease by paying $50 to

the other. necessary to show a case within the terms of

6. Held, that the evidence in this case fails the statute is as fatal as want of evidence

to show that the lease in question was so terof such a case.

minated. True, the language of the statute is "may

7. Also, that the lessor, after he had convey. avail himself of the remedy provided in

ed the premises, had no power to terminate the

lease, unless hé in some way still had an inchapter ninety-four," but the language quot terest in the lease, or acted by authority of the ed only designates the process. It does not owner, of neither of which facts is there any prescribe the allegations to sustain it. It

proof. does not imply that the process provided in

8. The plaintiff obtained judgment in the

lower tribunal against the defendant, and the chapter 94 may be framed to describe the defendant having recognized to the plaintiff as cases heretofore named in that chapter, and

provided in Rev. St. c. 94, § 8, the plaintiff yet be sustained upon evidence of an entirely

recognized to the defendant as provided in sec

tion 9 of the same chapter, whereupon a writ new and different case not named in that

of possessiou was issued, and the defendant was chapter. On the contrary, the effect of the removed from the premises. Subsequently the language is to make section 3, c. 17, an ad

buildings which were the_subject of the lease dition to chapter 94. By the new section

were destroyed by fire. Held, that a writ of

restoration ought not to issue. thus added, the process is authorized upon 9. Held, that the defendant is entitled to reanother state of facts, different from all cover as damages for his unwarrantable eviction those before specified. As stated in Wood

the difference between the rental value of the

premises and the rent reserved. from the date man v. Ranger, supra, there must be allega of the eviction to the end of the term, or to tions of these facts to authorize evidence of the termination of the lease otherwise. them, and a judgment thereon, and this even (Official.) though the case is reported to the law court

Report from Supreme Judicial Court, on the evidence. Loggie v. Chandler, 95 Me.

Waldo County. 220, 229, 49 Atl. 1059.

Action by Allen M. Small against Daniel H. · It should be observed that the variance is

Clark. Case reported, and judgment for denot a mere technical one, which would ordi

fendant. Darily be waived by reporting a case to the law court. Pillsbury v. Brown, 82 Me. 450,

Forcible entry and detainer for the purpose 19 Atl. 858, 9 L. R. A. 94. The variance of obtaining possession of a hotel called the here is wide and substantial. The declara “Lake House," in Freedom. tion, if of any case at all, is of a case under The trial justice found for the plaintife, one statute. The proof is of a different case and issued a writ of possession, upon which under a different statute.

the defendant was ejected from the premises. For want of necessary allegations to which I'rom the proceedings of the trial justice the the evidence can be applied, the entry must defendant appealed to this court, sitting at be:

nisi prius; and, after the testimony before Plaintiff nonsuit.

the jury had been taken out, the case was, by agreement of the parties, reported to this

court. (97 Me. 304)

Argued before WISWELL, C. J., and SMALL V. CLARK.

EMERY, WHITEHOUSE, STROUT, SAV. (Supreme Judicial Court of Maine. Feb. 10, AGE, and SPEAR, JJ. 1903.)

R. F. Dunton, for plaintiff. C. E. & A. S. FORCIBLE ENTRY AND DETAINER-LEASEFORFEITURE-EVICTION-DAMAGES.

Littlefield, for defendant. 1. If the forfeiture of a lease by using the premises for the unlawful sale or keeping of intoxicating liquors, as provided by Rev. St. c. 17, SAVAGE, J. Action of forcible entry and $ 3, be not takeu advantage of by the lessor, | detainer. April 3, 1901, J. I. Watts, then the

owner of the premises in question, leased out notice, if commenced within seven days them to the defendant for the term of four from the forfeiture of the term. Rev. St. C. years at a rental of $130 a year. The lease 94, § 1. But the plaintiff does not seek to contained the following stipulations, among maintain the action under that clause. The others: "Be it understood and agreed that, only other provisions in chapter 94 which can if either party should see fit to ter ate by any construction of its terms afford a lesthis lease before it expires, he shall pay the sor a remedy in cases of this sort is that other fifty dollars, and the said Clark shall which relates to tenants at will, and of these have the first refusal when sold;" also “be it we shall speak hereafter. further understood that said house shall not Assuming that the defendant forfeited the be used for any other purpose than a hotel, lease as claimed, while Watts was the owner, and no intoxicating liquors shall be sold on unless he became ipso facto a mere tenant at the premises." The other provisions in the will, Watts alone could take advantage of lease are unimportant here. Watts conveyed the forfeiture, and his right would not pass the premises to the plaintiff July 8, 1901. On to his grantee by conveyance of the premises July 10, 1901, the plaintiff gave notice to the Fenn v. Smart, 12 East, 444; Bennett v. defendant, in writing, that his tenancy in the Herring, 3 C. B. (N. S.) 370; Trask v. Wheelpremises would terminate August 10, 1901. er, 7 Allen, 109; Rice v. Stone, 1 Allen, 566. This action was commenced August 19th fol. The statute says the tenant "forfeits his lowing, was heard before a trial justice, and right thereto.” The more explicit language judgment was rendered for the plaintiff. The of the original act (St. 1858, c. 54, § 3) says, defendant appealed to the Supreme Judicial “Such use shall annul and make void the Court, and the case is now before us on re lease or other title under which said occuport.

pant holds, and without any act of the owner The plaintiff seeks to maintain this action, shall cause to revert and vest in him the notwithstanding the defendant was occupy right of possession thereof." The earlier ing the premises under a lease for a term of phrase means no more, we think, than the years, upon two grounds:

later one. In either case it is the "owner" 1. He contends that the defendant's right who may make immediate entry-entry imto the premises as tenant or occupant bad mediately upon the forfeiture; that is, when been forfeited by him, prior to the commence the forfeiture becomes effective. It is the ment of the action, by using it or a part of it "owner" at the time of the forfeiture, not as a liquor nuisance, contrary to the provi- his subsequent grantee. It is the "owner" sions of Rev. St. c. 17, § 1. The lease itself who may make immediate entry, or may stipulated that no intoxicating liquors should have the alternative remedy of forcible enbe sold on the premises, and that the lessor try and detainer. The statute does not read might enter and expel the lessee if he should that the "owner" may make immediate entry, violate any of the covenants of the lease. Rev. or his grantee may resort to forcible entry St. c. 17, § 3, provides that “if any tenant or and detainer. It is the owner at the time occupant, under any lawful title, of any build of forfeiture all the way through. This aping or tenement not owned by him, uses it or pears to be so from the language of the any part thereof for any purpose named in statute. Extraneous considerations support section one, be forfeits his right thereto, and this position. The statute we are discussing the owner may make immediate entry, with was enacted in pari materia with that other out process of law, or may avail himself of which makes the lessors of buildings used as the remedy provided in chapter ninety-four," liquor nuisances liable, under some conditions, which is forcible entry and detainer.

to indictment, fine, and imprisonment. And Waiving the questions whether the plain one purpose of section 3 undoubtedly was to tiff's pleadings should not have set forth spe enable the landlord to dispossess bis liquorcifically the statutory ground on which his dealing tenant immediately upon discovery, claim is based, and whether proof of forfei and thereby avoid the risk of prosecution ture under the statute is not a fatal variance himself. Way V. Reed, 6 Allen, 364. And from the allegations in the declaration before this reason would not apply to a subsequent us (Eveleth v. Gill, 97 Me. 315, 54 Atl. 756), grantee. we are of opinion that the plaintiff must fail Moreover, although the lease is forfeited upon this statutory ground for want of proof. or annulled and made void by the act of The only evidence in the case having any the tenant, the owner is not compelled to tendency to prove that the defendant used take advantage of it. He is not compelled any part of the premises as a liquor nuisance to act. He is not obliged to make immediate relates to June 14, 1901, while Watts was still

entry. He may never resort to the remedy the owner, and 25 days before the plaintiff by forcible entry and detainer. He may purchased the hotel. After that, and while waive the forfeiture, and waive the privilege Watts continued to own the premises, the lat. of ousting the tenant. He may be content ter did no act to terminate the tenancy, either that the tenant shall remain, and, if he is under the provisions of the lease or under the content, no one else can complain. And if statute.

he permits the tenant to remain, the tenant's The remedy by forcible entry and detainer occupation is lawful. The tenant's occupagiven by the statute may be maintained with. tion is at no time unlawful unless and until

« 이전계속 »