46 Vt. 108 | Vt. | 1873
The opinion of the court was delivered by
This action is assumpsit to recover pay for building a school-house.
I. The defendant moved to dismiss the suit for want of legal service. The motion to dismiss was filed on the 11th of July, and more than a month after the time for filing dilatory pleas, by the rules of practice, had elapsed. The defendant claims that the case was entered on the docket, out of time, and that the motion was filed seasonably after the case was entered. The case could
II. But, waiving all exceptions to the time of filing the plea or motion, and to the sufficiency of the motion (which may well be questioned), we think the service of the writ good. The statute provides that “ all writs against a corporation shall be served by leaving a copy with the clerk thereof, unless he be absent from the state.” This writ issued and was served as an attachment. The 22d sec., ch. 33, Gen. Sts. provides, in such case, that “ a copy of the attachment, and a list, &c., shall be delivered to the party whose goods or chattels are so attached, or left at the house of his then usual abode, as is directed in case of summons.” The attachment of property of the defendant gave jurisdiction to the court over the subject-matter of the attachment. There is no suggestion or reason to believe that the clerk was absent from the state, and, therefore, the service could not have been made otherwise than upon the clerk. And it cannot reasonably be assumed that when the clerk, by severe sickness or temporary insanity, was rendered incapable of receiving a copy ; or when temporarily absent from home, the officer, perhaps on the last day of service, had made an attachment and was unable to find him, that the statute had made no provision for serving the process. The twenty-fourth section provides upon what officer or person, process against a corporation shall be served; and if it be impossible to deliver a copy of the attachment to such officer in person, then the officer shall leave it, under the general direction of the statute for serving process, “ at the house of his usual abode, with some person of sufficient discretion then resident therein ” ; and if there be no such person, then he shall lodge the same therein, “ in such situation as the defendant will most probably receive it.” And the manner of service is required to be
III. It is admitted that the charge of the court properly stated • the defence to the jury, and that an acceptance of the house would conclude the defendant, unless there were secret defects which inspection would not discover. But.the defendant excepts to the remark of the judge, that “ he did not recollect of any evidence of such defects, unless it- was that the lumber was not properly seasoned.” It is not apparent that there was other evidence properly bearing on that part of the case; and if there had been such evidence, the remark of the court would be a mistake, but not a subject of error. In the resume of evidence, it cannot be expected that every circumstance will be remembered and stated to the jury by the court. But when the court, in recapitulating the evidence, states that it is all he “ remembers,” but leaves the jury to determine the fact, upon the weight of evidence as they had heard it, it cannot be assigned as error, if the court should overlook some testimony bearing upon the issue.
We find no error, and the judgment of the county court is affirmed.
