Ferris v. Ferris

25 Vt. 100 | Vt. | 1853

The opinion of the court was delivered by

Isham, J.

The present trustee act, Comp. Stat. 256, provides, that upon all contracts, express or implied, made since the first day of January, 1839, and upon all contracts where the principal defendant has absconded from, or is resident out of this State, or is concealed within it, a suit may be commenced thereon by a trustee process. This mode of relief is unknown at common law. The remedy itself, the form of the process, and mode of procedure, are given and prescribed by statute, and when adopted, its provisions are to be strictly pursued, and unless the case is expressly provided for by the act, it cannot be sustained. These principles are illustrated and confirmed by the case of Park et al. v. Trustees of Williams, 14 Vt. 213.

It is evident, therefore, that this suit cannot be sustained as a trustee process, for the cause of action against the principal defend- and does not arise ex contractu. It is only in cases of that character, that this process is given by statute. And indeed, it has not been contended in argument before us, that as a trustee process it can be sustained. It is insisted, however, that the writ and declaration are good, in form and substance, in trespass against the principal defendant, and that as against him, the suit can be sustained by discharging the trustee, or striking that part of the writ from the record, and proceed thereon against the principal defendant, as upon a common law process, the same as if no trustees had ever been summoned. It is obviously true, that if the trustees were discharged, and that part of the process struck from the record, there would still remain a legal process and declaration, in form at least, against the principal defendant; and whether we can so treat this process, is the question before us. It is equally evident, that as the case now stands, the principal defendant has a full and substantial defense to the action. The court has no jurisdiction of the case. The subject matter of this suit cannot be prosecuted in this form of action, under the provisions of this statute. There is, therefore, a manifest impropriety in principle, in so changing the action,however trifling the alteration may be that effects it, as to authorize a recovery upon a subject matter that could not be the subject of investigation in the original process. The case of Hill v. Whitney et al. and Trustees, 16 Vt. 461, is analogous to this, and the principles there decided must exert a controlling influence in the decision of this case. The suit in that case was commenced by a trustee process under the Revised Statutes, upon a cause of action that occurred before the first of January, 1839. The subject matter of that suit, therefore, like tins, was not within the trustee act, and though, it arose ex contractu, a trustee process could not he sustained thereon, and on motion of the principal defendant, the case was dismissed. It was urged in that case, with the same propriety and force of reason as in this, that there was a good process against the principal defendant, and that the suit might be continued against him, by dropping the trustee, and discontinuing the proceedings against him; but it was held otherwise, and that as the suit was not within the law, it was an abuse of the process, and no authority existed to use it in the commencement of the suit. For these reasons, that alteration of the process was not allowed, and the suit was dismissed. The same doctrine is held in Bradley v. Cooper, 6 Vt. 121; Emerson v. Paine and Tr., 9 Vt. 271; and Austin v. Grout and Tr., 2 Vt. 489. These authorities are decisive that this action cannot be sustained, and that it cannot be rendered available, by discontinuing the proceedings^ainst the trustee.

The question arises upon a demurrer J*|Pplea in abatement, and it is insisted, that the plea is defective asHsuch in form — without deciding any questions of that character, which have been raised in the case ; the plea is unquestionably good, as a motion to dismiss ; and as the question involves the jurisdiction of the court over the subject matter of the suit, and the ground of objection appearing on the face of the record, the question is properly presented in thatform.

The result is, that the judgment of the County Court, dismissing the suit, must be affirmed.