20 A.2d 675 | Vt. | 1941
This is an action of contract brought by Earle C. Hayden against the Caledonia National Bank to Washington County Court. The defendant appeared specially and, after the time for dilatory pleading had expired, filed a motion to dismiss. This motion was denied and the plaintiff's motion to amend the writ was granted. The case is here upon the defendant's exceptions to the action of the court in denying its motion to dismiss.
Insofar as material here the United States Code, 12 U.S.C.A. § 91, provides that: "* * * and no attachment * * * shall be issued against such association or its property before final judgment in any suit, action or proceeding, in any State, county, or municipal court."
No question is made but that the word "association" as used in this statute includes the defendant National Bank. *32
The writ by which this suit was instituted was in the form prescribed by statute for writs of attachment but was served as a writ of summons.
The defendant's motion to dismiss was based upon the contention that the writ issued as an attachment and was therefore contrary to the provisions of the above quoted statute and that for this reason the court was without jurisdiction to proceed to a trial of the case.
Because of the provisions of P.S. 2081 (now P.L. 2170), prohibiting arrest in actions of contract except as otherwise provided, the question here is similar to that considered by this Court in the case of Roy v. Phelps,
That was an action on the case for an alleged false warranty in the sale of a horse. "The writ issued as a capias and was served by arresting the defendant's body." The declaration contained four counts; the second and third essentially like those inCaldbeck v. Simanton,
It was argued that that case was distinguishable from theCaldbeck case because the first and fourth counts were of such a nature as to warrant the issuance of a capias and the arrest of the body, and that liberty to amend by dropping the objectionable counts could be granted and the case proceeded with upon the others. In reply to this argument this Court stated: "Were it the mere case of a declaration containing two good counts and two bad counts this could be done. But it is not. It is not even a case of a declaration containing counts a part of which are within and a part without the jurisdiction of the court, — though in one view it resembles such cases, of which we have several." The Court then proceeded to discuss Chadwick v. Batchelder,
In another view Roy v. Phelps was said to resemble Hill v.Whitney et al. Tr.,
It was held in Roy v. Phelps, supra, 177, that the case was commenced under a process which issued without authority of law and was so defective as to be absolutely void. This holding is placed upon authority of Pike Bros. v. McMullin,
From the foregoing authorities it follows that the writ in the case at bar was issued without authority of law and was in violation of the federal statute hereinbefore quoted. The fault exists in the process itself and therefore the fact that it was not served as an attachment can not save the action. In Roy v.Phelps, supra, 178, 179, it is shown that the decisions inLangdon v. Dyer,
The plaintiff relies upon the case Pacific National Bank v.Mixter, supra, in support of his contention that the writ in question here was sufficient to give the court jurisdiction. An examination of that case shows the following facts:
Mixter and several others were each creditors of the Pacific National Bank of Boston. Each brought a suit against the bank in the Circuit Court of the United States for the District of Massachusetts. In each of these suits attachments were made before final judgment. These attachments were released by the bank executing a bond to each of the plaintiffs with one Coleman *34 and one Shepard as sureties in accordance with the provisions of Massachusetts law. This being done the bonds stood in place of the attachments as security to the plaintiffs. Certain assets of the bank were turned over to the sureties on the bonds to secure them against the liability they had assumed.
By statute in Massachusetts when these suits were brought civil actions were begun by original writ which might be framed either to attach the goods or estate of the defendant, and for want thereof to take his body; or it might be an original summons with or without an order to attach the goods or estate. Mass. Pub. Stat. 1882, c. 161, § 13, 14.
Soon after the attachments above mentioned the bank went into the hands of a receiver who appeared for the bank in these cases, filed motions to discharge the attachments and to dismiss the actions. These motions were denied and each case proceeded to a judgment for the plaintiff.
The receiver brought a bill in equity in the Circuit Court against the several attaching creditors and the sureties on the bonds given to dissolve the attachments, the object of which was to reduce to his possession the securities which were held by the sureties for their protection, and to restrain the several attaching creditors from enforcing the attachment bonds on the ground among others "that the attachments made in said actions were unauthorized, illegal and void." This bill was dismissed by the Circuit Court and the case went to the United States Supreme Court for determination.
It was held that "the attachments in all the suits were illegal and void, because issued without any authority of law." The sureties were held not to be liable on the bonds and they were left free to turn over to the receiver the securities of the bank which they held as protection against liability on the bonds. It was stated that these holdings would not affect the judgments which the creditors had obtained, any further than to limit their operation, so far as the receiver and the sureties on the attachment bonds were concerned, to the adjudication of the debts as claims entitled to dividends from the proceeds of the assets of the bank. The judgment in each of the law actions was affirmed and the decree in the equity suit was reversed and the cause remanded with instructions to enter a new decree in accordance with the views expressed in the opinion. *35
It appears that the basis of the decision in the above case in affirming the judgments at law was the wording of the Massachusetts statute then in force where in speaking of original writs it was stated "or it may be an original summons, with or without an order to attach the goods or estate." That is, the order to attach was considered as separate from the summons. When it was found that the order to attach issued without authority of law the summons was left in force.
Also, see Posselius et al., Exrs. v. First NationalBank-Detroit, Ernest Kern Company, Garnishee,
P.L. 1486 provides that: "The ordinary mode of process in civil causes in the courts shall be by writ of summons or attachment and substantially according to the form prescribed by law."
Also P.L. 1488: "Writs of attachment may issue against the goods, chattels or estate of the defendant and, in certain cases for want thereof, against his body."
P.L. 9111, form 2, sets out the form for a writ of attachment and form 3 of this section sets out the form for a writ of summons.
From the foregoing it follows that since the process by which the suit at bar was commenced, namely, the writ of attachment, issued without authority of law and was therefore absolutely void, nothing remains by which the court has authority to proceed in this case. That is, the court being without process it is without jurisdiction of the subject-matter and of the person of defendant. Aiken v. Richardson,
The plaintiff contends that in considering the case Posseliuset al., Exrs., v. First National Bank-Detroit, Ernst Kern Co.,Garnishee, mentioned in the opinion, (
The plaintiff also contends that the defendant is not in a position to claim in this Court that the county court was without jurisdiction to hear the case at bar. This contention is based upon the following facts.
It appears that after the writ in question had been returned to the county court, the plaintiff brought a second suit for the same cause of action, using as process in the latter case a writ of summons which was duly served and returned to the county court. This latter case was dismissed upon defendant's motion based upon the ground that the case at bar was pending in said court. The plaintiff contends that this action by the lower court amounted to a ruling that that court had jurisdiction of the case at bar and since it was not appealed from, right or wrong, the ruling stands.
There is no merit in this contention. If the court below did not have jurisdiction of the case at bar, it could not acquire jurisdiction by any ruling which the court might make in some other case and the defendant could raise this question of jurisdiction at any time. Howe v. Lisbon Savings Bank TrustCompany et al.,
Motion for reargument denied. Let full entry go down. *37