Opinion
Opinion January 22, 1930.
EXCEPTIONS. PLEADING AND PRACTICE. ACTIONS. SCIRE FACIAS.
When exceptions are sustained by the Law Court the case comes back to nisi prius to be tried de novo unless it has been otherwise expressly decided and stated in the rescript. An action can not properly be dismissed by reason of any defect or omission in the declaration which in the discretion of the presiding Justice may be cured by amendment. Motions for dismissal are not permitted to usurp the office of demurrers. A writ of scire facias may be amended like any other writ.
On exceptions by defendants. An action of scire facias against trustees. Defendants' motion that the action be dismissed was denied by the presiding Justice. To this ruling defendants excepted. Exceptions overruled.
The case sufficiently appears in the opinion.
Frank A. Tirrell, Jr., O. H. Emery, for plaintiff.
J. H. Montgomery, for defendants.
SITTING: DEASY, C. J., DUNN, STURGIS, BARNES, FARRINGTON, JJ.
Action of scire facias against trustees. The defendants moved that the action be dismissed. The presiding Justice refused the motion. To this ruling the defendants except.
After unfortunately protracted litigation this court held in Bean v. Ingraham, 128 Me. 238 — 147 Atlantic, 191, that upon the facts as stated in the bill of exceptions which were the same as stated in the writ, the action failed — failed because it did not appear that as required by R. S., Chap. 91, Sec. 73, a demand had been within the required thirty days made upon the trustees.
Thereupon, exceptions being sustained, the case came back to nisi prius to be tried de novo, it not having "otherwise been expressly decided and stated in the rescript." Merrill v. Merrill, 65 Me. 79.
Upon the facts which were before the court in 128 Me. 238, the plaintiff must fail but if there is error a Justice sitting at nisi prius may allow an amendment.
A writ of scire facias may be amended like any other writ. Marsh v. Bellefleur, 108 Me. 354.
"A writ of scire facias is unquestionably amendable in the same manner as declarations in other cases." 24 R. C. L., 678.
An action can not properly be dismissed by reason of any defect or omission in the declaration which, in the discretion of a sitting Justice, may be cured by amendment.
"Motions for dismissal are not permitted to usurp the office of demurrers."
R. C. L., Sup. Vol. 2, Pg. 768; R. R. Co. v. Adams, U.S., 45, L.Ed., 410.
A motion to dismiss is appropriate when upon the record there appears to be a lack of jurisdiction or want of sufficient service, but
"Defects apparent on the face of the declaration, independent of any reference to the writ or its service are not pleadable in abatement or the subject of a motion to dismiss." Littlefield v. R. R. Co., 104 Me. 126 -132.
The ruling of the presiding Justice in the instant case in refusing to dismiss the action was unquestionably correct.
Exceptions overruled.