32 A.2d 123 | Vt. | 1943
The writ in this case bears the date of February 28, 1942. It was served on the defendants March 19, 1942, and entered in the county clerk's office on March 30, 1942. The defendants appeared specially by their attorney and filed a motion to abate the process for the reason that the same had not been entered and docketed within the time required by P.L. sec. 1512. At the hearing on the motion the plaintiff offered to show by the master in chancery who had signed the writ and taken the recognizance that the writ was in fact signed by him on March 18, 1942, and the recognizance taken by him on that day and that the writ was delivered to the officer on the following day. This offered evidence was excluded, the motion was granted and the process abated. Exceptions were allowed the plaintiff and the cause passed to this Court under the provisions of P.L. sec. 2072.
In order to determine the effect to be given to P.L. 1512 it is necessary to read it in connection with P.L. 1511. These two sections are as follows:
Sec. 1511. "Every writ and process returnable before the Supreme or county courts, except as *244 otherwise provided, shall be served within twenty-one days from the date of issuing the same, including the day of service and excluding the day of issuing, and shall contain the following direction to the officer, viz: `Fail not but service and return make within twenty-one days from the date hereof.'"
Sec. 1512. "The party suing out such process shall cause the same to be entered and docketed in the county clerk's office on or before the expiration of such twenty-one days, or the process shall, on motion, abate."
These sections were originally enacted as parts of No.
It would seem a reasonable construction of these statutes leads to the conclusion that the Legislature did intend that a writ should be docketed and entered within twenty-one days of the date of its issuance. It is equally clear, however, it was also intended that the date of issuance and the date appearing in the writ should be the same for it is apparent this should be the fact of the matter. It is also apparent from the wording of sec. 1512 the Legislature *245 intended that the date appearing in the writ should be conclusively taken as showing the date of its issuance. To hold otherwise would permit the making of a claim as to every writ that it was issued at a time different from that appearing on the process itself and thus result in much delay due to the necessity of taking oral evidence in the matter and in a virtual nullification of the statute.
In support of her claim that the date of the writ is to be considered only as prima facie evidence of the date of its issuance the plaintiff relies on Day v. Lamb,
*246Judgment abating the process is affirmed.