Graves v. Severens

37 Vt. 651 | Vt. | 1865

Kellogg, J.

We have no doubt that this action is, both in form and substance, an action ex delicto, and that, as it is not an action “ founded on any contract,” it could not be “ commenced by the trustee process,” under the provisions of the statute. (G. S., p, 305, § 1.) The writ was served on the defendant as an ordinary writ of attachment, but no service was made, or attempted to be made, on the trustee named in it. We do not think that a suit should be regarded as “ commenced by the trustee process,” unless that process is used to bring the trustee into court as a party to the suit. No service having been made on the trustee in this case, he was not a party to the suit, and no trustee process against him could be considered as pending in court. That part of the plaintiff’s writ in respect to the trustee should, consequently, be treated as being merely surplusage ; and, as such, it may properly be rejected or stricken out. The case is unlike that of Ferris v. Ferris & Trustee, 25 Vt. 100, because, in that cases, the trqstee process was used by service thereof on the trustee. It has been held in this court that a writ of attachment, if served as a writ of summons, will operate as such, and be sufficient to hold the defendant to bail, although these writs are different in form, and are recognized in the statute as distinct precepts; and it has also been held that a writ which improperly issues as an attachment against the body of the defendant, but which is served as a writ of summons or by attachment of property only, is not tor that cause abatable. Brewer et al. v. Story et al., 2 Vt. 281; Langdon v. Dyer, 13 Vt. 273 ; Bowman v. Stowell et al., 21 Vt. 309.

Judgment of the county court (by which the suit was, pro forma, dismissed,) reversed, and the defendant’s motion to dismiss overruled, and the case remanded to the county court for further proceedings.