Smith v. Hunt , 91 Me. 572 ( 1898 )

Haskell, J.

Assumpsit upon an account for $12.20 with a quantum meruit for the same cause of action, brought before the Bangor Municipal Court. That court has concurrent jurisdiction with trial justices against defendants residing in the county, outside of Bangor, when the debt or damages demanded do not exceed $20 and exclusive jurisdiction when either party does reside in Bangor. It has concurrent jurisdiction with this court when the debt or damages demanded exceed $20 and do not exceed $300. Act of 1895, c. 211, § 2; R. S., c. 83, §§ 3 and 9.

This defendant resided in the county of Kennebec. The ad damnum is $50. The defendant pleaded in abatement to the jurisdiction of the court, in substance, that the debt sued for does not exceed $20, whereby the court had no jurisdiction over him, a resident in another county and within the jurisdiction'of another court. To this plea plaintiff demurred and the court overruled the demurrer and ordered the defendant to answer over, and he, instead of so doing, not only took exceptions but at once sent them to this court.

The exceptions are to the overruling of a plea in abatement, a dilatory plea, and regularly should not have been brought up until after trial upon the merits. R. S., c. 77, § 52. But, inasmuch as the defendant did not choose to accept the privilege of pleading over that was accorded him, he thereby waived all such right and the decision here must be final. Furbish v. Robertson, 67 Maine, 35.

It is common learning that pleas in abatement to the jurisdiction must be pleaded in person and not by attorney. However, the gravamen of this plea appears upon the face of the writ, and therefore it may be treated as a motion and the point it makes decided upon the merits.

Cole v. Hayes, 78 Maine, 539, is directly in point. There the plaintiff resided in Oxford county, the defendant in Piscataquis. The action was assumpsit upon a promissory note for $12 and interest. The ad damnum was above $20. The judgment is that the court had jurisdiction. The court says: “It appears to be

well settled that in all actions sounding in damages as assumpsit and tort, the jurisdiction depends upon the ad damnum which is the amount of damages demanded.” We cannot distinguish this case from that one. Here, the demand is $12.20. There, it was $12. Here, the ad damnum is $50. There, it was above $20. Here, it is unnecessarily large. There, it may have been. It would be impracticable to fix a reasonable limit. Quarter costs apply in that case, here not. It is a matter that the legislature may regulate. It is impracticable for the court to attempt it.

Exceptions overruled. Defendant defaulted.