Opinion
Decided October 19, 1932.
Carleton Carleton, for plaintiff.
Herbert E. Foster, for defendant.
This action of assumpsit, begun by trustee process, was entered at the October Term, 1931, of the Superior Court for Kennebec County, and at the following term the defendant, appearing specially, filed a plea to the jurisdiction denying legal service of the process. At the June Term, 1932, the defendant's plea was overruled and an exception, then allowed, was forthwith certified to this court. The defendant did not plead over, nor was the case closed.
The exception is brought to this court prematurely. When his plea, directed to the jurisdiction, was overruled and an exception taken, the defendant had the right to answer over on the merits. R. S., Chap. 96, Sec. 37. Unless he refused to exercise that right or otherwise waived it, the duty of the presiding Justice was to "proceed and close the trial," whereupon the case would stand continued on the docket of the Trial Court, marked "Law." R. S., Chap. 91, Sec. 24. The case could not be properly certified to the Law Court until its rescript would be decisive and final. This rule of practice was approved under earlier statutes in pari materia in Stowell v. Hooper, 121 Me. 152. It remains in force under the present statutes. Exceptions dismissed.