Cairns v. Whittemore

Emery, J.

The present defendant was summoned, in a former action against one Creighton, to show cause why execution in that action should not issue against Creighton’s goods, effects and credits in his, the present defendant’s, hands. He did not appear in that action but was defaulted. He is now summoned in this action of scire facias to show cause why the plaintiffs should not have execution directly against him for the amount of their judgment against Creighton, which is some eighty dollars. In obedience to this latter summons, he has appeared by attorney, and by way of answer, or as showing cause, has filed by attorney a written allegation in the form of a plea, that at the time of the service upon him of the writ in the original action he had in his hands belonging to Creighton the sum of nineteen dollars.' The plaintiffs filed a general demurrer to this written statement, and *503asked for a ruling upon the issue thus formed. The ruling being against them, they have brought the same issue before the law court upon exceptions.

The plaintiffs now contend in argument that the defendant, being a resident of the same county, could not appear and answer by attorney, but could only appear in person, and could only defend by answer or disclosure signed and sworn to by him in person. They claim that the paper filed by the defendant’s attorney should be disregarded and the defendant defaulted as if no defense had been offered.

But, at nisi prius, the plaintiffs took no steps to have the defendant’s written statement struck out of the case, or taken from the files as an unauthorized mode of making a defense ; — nor did they move for a default for want of a properly offered defense. They sought no further discovery from the defendant. They took the ground that the matters alleged showed no cause against their claim. They demurred to the allegation and thus themselves tendered the issue formed by the demurrer, which is, whether the matters alleged in the statement show any cause why execution should not issue against the defendant personally for the full amount of the original judgment.

The plaintiffs, as against this defendant, are entitled to execution only for the amount of Creighton’s property they attached in his hands at the time of the service upon him of the original writ. His default in the original action does not estop him from alleging and showing the truth. That default is only evidence against him which may be rebutted. Townsend v. Libby, 70 Maine, 162. He now alleges, in writing, even if informally, that the amount of Creighton’s property then attached in his hands is nineteen dollars. The general demurrer admits this to be true. It follows that execution against him must be for nineteen dollars with costs.

Exceptions overruled.