Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1901-04-17
daily Ksnnsbec journal
THE LAW COURT
Hands Down Decisions in
Several important Cases.
wateviIIe Loses in Suit Of G. c.
Adams for Services Rendered.
lndrssccssiu. Cumberland. Knox and Pcnob'
scot Gases Also Settled.

Krrnebec SIS. George q. Adams VS.
the Inhabitants of Waterville. Re
script. Wiswell, c. j.
7, an action against a municipality
N recover for services performed
where the employment of the p1a!ntifl
by nroncr authority and his perform
ance of the services are admitted, and
ubarc the defense set up is that the
city could not create this liability I'M
dor the cons titution of this state, be-
,ausc of the fact that its debts and Ii
abilities in the aggregate already cX-
cee,led 5 per ccntum of the last reyu-
lar valuation of the city exclusive OF
,emporarv loans to be paid out of II? IN
ev raised by taxation during the y"ar
in which they were made. the burden
of proving this fact is upon the defend
ant.
1eld. that the evidence in this ease
did not show this to be a fact, Gnd
that consequently 4 verdict for the
paintifr was properly ordered.
Exceptions overruled.
Androscoggin SIS. Maria Z. Colder VS..
Carrie f. Colder. Rcscript.
In writ of entry by a mortgage to
recover possession for the purpose of
foreclosure for condition broken. of
premises mortgaged by deceased
mortsagor to secure an obligation Civ
on by him conditioned for the mort
caree's support during life. the admin
;strator of the deceased mortgagor
cannot be made a party defendant.
In such an action against the widow
of the deceased mortgagor, in posses
sion and claiming title, the mortgagee
1.-THE Plaintiff is competent witness in
her own behalf
Chapter 15.. Public Laws of 1895, pro-
ydes that the real estate of person
deceased. interstate, shall descend. so
far as his widow is concerned, as fol-
hws: IF he leaves widow and is
sue, one-third to the widow; is no is
/ sue, one-half to the widow" does not
constitute the widow an heir of her
deceased husband. Since the passage of
that act. as before, she takes as widow
and not as heir.
Exceptions overruled. Judgment on
the verdict.
Cumberland. S. Lucy NJ. Flint, Ad-
ministratrix. In Ed. VS.. Robert Comfy
ct ais Rescrpt. Wiswell, c. J.
A nonresident defendant, upon
whom service has not been made in
this State, by causing general and
unconditional appearance to be made
for him by his attorney. submits him
self to the jurisdiction of the court, II
the court has jurisdiction fof the sub
ject matter, although independently OF
this voluntary action by the defendant,
the court might have had no jurisdic-
ton over him. This is as true in causes
in equity as in actions at law
In the absence of anything to the
contrary, the presumption is that an
attorney has full right, power and au-
thority to make such appearance. The
court will not require, in addition to
such an appearance and an answer
signed by counsel, an answer person
ally signed by a nonresident defend
ant, before assuming jurisdiction over
the person of such defendant. II
defendant who thus voluntarily
submits himself to the jurisdiction o.
the court, must be held to have done
so subject to the method of procedure
in this State and to all statutory prOvl-
sons in relation to procedure, inclpd-
ing. among other things, the power OF
the court under Chapter 211, Public
Laws of 1893, in an equity proceeding
10 strike out the pleadingS in equity
and require the parties to plead at law
IN the same cause, whenever it appears
mat the remedy at law is plain, ade-
quate and complete and that the rights
OF the parties can be fully determined
and enforced by a judgment and exc
eution at law, and to then hear and
Qetermlne the case at law. If non
resident defendant has voluntarily sub
United himself to the jurisdiction of the
court, the procedure must in all re-
Spects be the same as if the defendant
was resident of the state.
lie procedure provided by Chap. 2ll
puohc laws of 1883. may he ordered by tn;
eouft without any motion or reques
mefcicr BY either party. If it appears e
me court during the progress of the hear
nae mat the conditions named in the ac
US. Consequently the form of writ
MI ni motion bT one of the parties tina
'lhtI tt Htdut Is II1fildttllti-
aaathough the act provides that this or
We, ,es may be made upon reasonable
" ,r,aaS' this does not make it obligatory
,a pon me court to impose terms Any
Ms might lie unreasonable in Il partic
is Ge case The matter of imposing term,
Srrsit to the discretion of the court.
pa enc sitting justice did not in his ordcl
Ss, me language Of the statute, bu
S,tu thls entry to be made upon TIN
mehet: Motion TO convert cause int.
nd M ac,on of law granted. Held: That /
mus ne assumed that before the justice
| naa aa. me order to convert the cause II
D n NY in'o an action at law. it was mad
w.s9frar to him that the remedy at Law
ne ram. adequate and that the rights
srI 'he parties could be fully determined
no n h'orced by a judgment and cXecu
IN IN. .o al law and that. although the cnur
IN "rms did not order that the pleadin =
aruuluity be stricken out and that tn
r raaues should plead at law in the sam
orJe' mis- was the precise effect of tn
an 10 convert the cause in equity int
ana ac c. at law. and was in suhstanc
meet what was authorized by tn
Exceptions overru,ed. Case remande'
Ensl prius for further proceedings.
1 vs NroX SIS. Jamie a. Munroe. in equity
To nopnia M. Barton. Rescript. Powers
1 frnu, sustain bill in equity to redeem
1 bir, NOR nortsasee or person claiming unde
1 ida. resides without the State. or his res
/ lesade Is unknown. or the mortgage IS al
4 NJ ana proved to be fraudulent i
and e or in part. the plaintiff must alleg
mo-, prove either a prior tender or pay
fenac, or such facts as show that the d.
4 refuHh, upon demand has unrea sOnab
corr. 20 render in writing a true az
or ~ OF the sum due upon the mort2ae
nre, nSs IN some other way by his defau
p,,t,eh tn" Plaintiff from per.ormir
Of .hpde'lng performance OF the conai'ic
II '" re NOR gage
Tho h e, PROVISION in r. S. c. 81. c. II. til.
in T;e I.