PLEADING AND PRACTICE. DEMURRER.
Sustaining a demurrer to a dilatory motion to dismiss a writ, in effect overrules it. An exception taken to a ruling, whereby a demurrer is sustained overruling a dilatory motion to dismiss an action, should await conclusion of trial of the case on its merits, and if, before then, it is presented to the Law Court, should be dismissed as prematurely brought up. When defendant's dilatory motion to dismiss is overruled, he has the right to answer over on the merits and, unless he refuses to do so or waives his right so to do, the case should proceed to trial and be concluded on its merits. Neither the filing of exceptions to the sustaining of such a demurrer nor the erroneous certification of the case to the Law Court is a waiver of the right to plead anew. An exception to a ruling on a preliminary motion for an order of new service being dilatory in its nature, unless the ruling is adverse to the proceedings, is prematurely before the Law Court, if presented before the conclusion of the trial of the case on its merits, and hence should be dismissed.
HUDSON, J.
Law on exceptions. Action of assumpsit. Defendants' real estate was attached on the writ but no service of it was made before entry. On motion of the conservators of the plaintiff company, who were permitted to come in and prosecute the action, at the return term the Court ordered notice given to the defendants, in consequence whereof summonses, not bearing its seal although signed by its clerk, were served on the defendants. At the following term, the defendants appeared specially and filed a motion to dismiss the action for lack of legal service, to which motion the plaintiff demurred. The Court sustained the demurrer and at the same time on proper motion for an order of new service, based on Section 23 of Chapter 95, R. S. 1930, granted it. Defendants except to both of said rulings.
The effect of sustaining the demurrer was to overrule the motion to dismiss which in its nature was a dilatory plea. Plaintiff contends this exception is prematurely brought forward, which contention we uphold. R. S. 1930, Section 28, Chapter 91; Klopot v. John Scuik and Augusta Trust Company, 131 Me. 499; Jordan et al. v. McKay, 132 Me. 55, 56.
The motion overruled, the defendants had the right to answer over on the merits and unless they refused to do so, or waived their right so to do, the case should have proceeded to trial and been concluded on its merits. Neither the filing of exceptions to the sustaining of such a demurrer nor the erroneous certification of the case to the Law Court is a waiver of the right to plead anew. Stowell v. Hooper, 121 Me. 152. Nothing in the record discloses a refusal by the defendants to plead over.
Like objection is taken to the consideration now of the exception relating to the order for new service. That the motion therefor was preliminary to the consideration of the case on its merits is without question, even though it, it might be claimed, does not, strictly speaking, constitute a dilatory plea within the meaning of the statute above referred to. Reasons, however, that could be urged for the enactment of such a statute would demand that the practice be the same with reference to preliminary motions, dilatory in their nature, as is provided by the statute.
"It is the better practice to allow exceptions to rulings on preliminary motions in cases of this kind (unless the rulings are adverse to the proceedings) to rest in the Court below until trial is had and all questions considered when all issues can be finally determined once for all by the Law Court. A case should not be brought to this Court by piece meal when it can be avoided."
Perley v.
South Thomaston,
101 Me. 538, 540.
In conclusion, we hold that both exceptions are prematurely before the Law Court and hence must be dismissed "so that the case may be restored to the docket to be proceeded with 'as if no exceptions had been taken.' "
Exceptions dismissed.