124 A. 74 | Vt. | 1924
The plaintiff obtained judgment against the defendant before a justice of the peace in Bennington County on August 1, 1923, from which the defendant appealed to the county court for that county. The appeal was entered and docketed with the clerk of that court September 11, 1923, without the knowledge or consent of the plaintiff, and on November 6, following, the plaintiff not having entered an appearance, the defendant moved for a nonsuit, which we assume from other facts that appear in the exceptions, the clerk entered in accordance with the provision of G.L. 1696. On the first day of the next *456 term of the county court, the plaintiff's attorney, by leave of court, entered a special appearance for the purpose of filing a motion to strike off the nonsuit, and to dismiss the appeal because not entered within the time allowed by statute, and immediately filed such motion. The defendant opposed the motion to strike off the nonsuit on the ground that no affidavit of merit had been filed, and resisted the motion to dismiss because it was not filed within the time required by the rule — meaning, we assume county court rule 4. The court struck off the nonsuit, and dismissed the appeal, to all of which the defendant excepted.
G.L. 1693 provides that, except in certain cases, either party may appeal from the judgment of a justice of the peace to the county court, if an appeal is claimed within two hours after the rendition of such judgment.
G.L. 1695 provides that the appellant shall, "on or before twenty-one days from the time of taking such appeal, cause to be entered and docketed with the clerk of the court to which the appeal is taken, certified copies of the original writ, process and record of judgment."
G.L. 1696 provides: "The appellee shall cause his appearance to be entered with the clerk of the court on or before the expiration of thirty days from the time of taking such appeal. If the appellee does not appear in person or by attorney within such time, the clerk shall, on motion of the appellant, enter a nonsuit in case the plaintiff is appellee, and a default in case the defendant is appellee. At the next regular term, judgment shall be entered by the court in accordance with such nonsuit or default, but such nonsuit or default may be stricken off on such terms as to costs and the time of filing pleadings as the court directs."
The plaintiff contends that since the defendant failed to enter his appeal within the time fixed by statute, the county court was without jurisdiction in the matter. If so, jurisdiction could not be conferred by waiver, or even by consent or agreement. EssexStorage Electric Company, Inc. v. Victory Lumber Co.,
This brings us to the question whether, as claimed by the defendant, the plaintiff waived such defect by failing to file his motion to dismiss earlier. This Court has repeatedly held that dilatory objections must be raised at the earliest opportunity, and cannot be later than the time allowed by the rule of court for filing dilatory pleas, in cases governed by the rule (Mack v. Lewis, supra; Wade v. Wade's Admr. et al.,
The defendant insists that it must be presumed, the contrary not appearing, that the plaintiff had notice of the filing of the motion for nonsuit on November 6, and that he failed to act seasonably thereafter; but such presumption cannot be indulged where it affirmatively appears, as in this case, that the party had no notice of the pendency of the suit wherein such motion was filed. It must be held, in the circumstances, that the motion to dismiss was timely filed. It must be held, too, that this motion was properly entertained, unless, as claimed by the defendant, the plaintiff by asking the court to strike off the nonsuit enlarged his qualified appearance to a general one, and thereby lost his right to insist on his motion to dismiss. A large number of cases showing what acts have been held to, and what acts have been held not to, constitute a general appearance may be found collected in 4 C.J., p. 1333 et seq., and in 2 R.C.L., p. 327 etseq. Suffice it to say that no infallible test exists for determining this question in all cases. The test adopted inMerchant's Heat Light Co. v. J.B. Glow Sons,
The provision of county court rule 9 requiring the filing of an affidavit of merit in the defense relates to default entries only, and has no application to the situation before us.
Judgment affirmed.