Cassidy v. Ken. & Portland Railroad , 45 Me. 263 ( 1858 )

The opinion of the Court was drawn up by

Davis, J.

The petitioner appealed from the determination of the County Commissioners in assessing the damages sustained by him in consequence of the location of the K. & P. Railroad across his premises. He entered his petition before tbe Commissioners, at an adjourned, term, in Nov. 1857, to have his damages assessed by a jury. A warrant was issued thereupon, directed to the sheriff, and a jury duly summoned. No suggestion is made that the proceedings of the jury were not in conformity to the requirements of the statute. Their verdict was sealed up, directed to the County Commissioners, and delivered to the sheriff, who returned it to the Commissioners, according to the directions of his warrant. It was afterwards ascertained that the warrant and verdict should have been returned to the Supreme Judicial Court. The verdict had been opened; but it was handed back to the foreman of the jury, who again sealed it up, and directed it to this Court, where it was subsequently returned at the next term, as the statute requires. R. S., c. 18, § 13.

The petitioner caused the case to be duly entered, and, upon his motion, the verdict was confirmed. There was no hearing upon the motion; but the respondents claimed that, the warrant being returnable before the County Commissioners, this Court had no jurisdiction of the case. Eor the purpose of presenting this question to the full Court, the case is brought forward on exceptions.

The direction in the warrant to the sheriff was as follows: “Hereof fail not, and make return of this warrant, with your doings, and also the doings of the jury thereon, to the Court of County Commissioners, next to be holden at Portland, within and for said county, on the third Tuesday of December, A. D. 1857.”

This was in accordance with the statute prior to 1857. But an Act was passed that year making such warrants returnable to this Court. It is said, however, in argument, that since the sheriff disregarded the directions in his warrant, and returned it to this Court, it is not material that he was directed to return it elsewhere; that, because the statute required the warrant and verdict to be returned to this Court, the respondents were bound to take notice that it would be so returned.

This, at first view, appears plausible; but it will hardly bear examination. A petition for increase of damages is a distinct proceeding, by which the party respondent is impleaded in a suit at law. The warrant must not only provide for summoning a jury, but also for notice to the adverse party. What this notice shall be is not particularly prescribed by statute; but it would appear to be reasonable that the respondent should be notified, either by a copy of the warrant or otherwise, not only of the time and place of the hearing before the jury, but also of the tribunal before which the process would be returned, and the time and place of hearing thereon. Such notice does not appear to have been given in this case. If we may infer that any notice was given in regard to the time and place of return, we must presume that it was in accordance with the warrant, which was by its terms returnable to the County Commissioners.

Nor can the fact that the statute prescribed a different time and place of return, and a different tribunal, remedy the defect in the warrant. The respondents had no reason to suppose that the sheriff would return the process to any other Court than the one to which he was directed to return it. There they might go to answer; they were bound to go nowhere else. It was held, in Massachusetts, that a writ returnable before “the next term” of the Court of Common Pleas, in which the day specified was a week earlier than the day of the term fixed by the statute, could not be amended; and that no judgment could bo rendered upon it. “As this is the foundation of all further proceedings, and the only mode of notice to the adverse party that he is impleaded, it seems reasonable that he should be distinctly informed, as well of the time as of the place at which his appearance is required to save his rights.” Bell v. Austin, 13 Pick. 90.

In cases like the one before us, the warrant issued upon the petition is, in some respects, analogous to an original summons. Upon it, the respondents receive their first notice. They answer to it as in other suits at law. If, in a suit at common law, a writ should be issued by this Court and be made returnable before the County Commissioners, the defendant could not be held to answer thereon in this Court, if the writ should be returned and the case entered here. Nor would it make any difference that the statute requires such a writ to be returned to this Court. The difficulty would be, that such a process would contain no notice to the adverse party to appear here to answer thereto. So the warrant in the case at bar gives the respondents no notice to appear before this Court. The warrant and return were but preliminary; the foundation of further proceedings. “ If a mistake of the time of the return of a process is a fatal error, a fortiori is a mistake of the forum, before which it is returnable.” Canal Company v. Ashley, 15 Pick. 496.

The exceptions must be sustained, and the verdict be set aside.

Tenney, C. J., Hathaway, Cutting, May, and Goodenow, J. J., concurred.