39 Vt. 163 | Vt. | 1866
The opinion of the court was delivered by
The motion to dismiss assigns as a reason for dismissing the action that the writ purports to have been served by S. 33. Darling, an authorized person, and by no other person or officer; that it does not appear that Darling was in any wise authorized to serve the writ, and it avers that the defendants have never accepted service. If the defect complained of is a total want of authority in the person who undertook to serve the writ it may be taken advantage of upon motion to dismiss. In Bliss v. Connecticut & Passumsic Rivers Railroad Company, 24 Vt. 428, the return on the writ was signed “ William Barker, indifferent person,” but the writ was not directed to him, nor did it appear that he was in any way authorized to serve it. The court held in that case that the defeat was one of substance, that it might be taken advantage of, upon motion, and dismissed the action. It is claimed by the plaintiff that the motion should not prevail, because it does not allege a total want of authority in Darling to serve the writ. The motion alleges certain facts, and upon the facts alleged and admitted by the pleadings, the question of Darling’s authority to serve the writ is to be determined. In Washburn v. Hammond, 25 Vt. 648, the plea in abatement allege that the writ was served by one Samuel Cady, who was not authorized according to the laws of this state to serve the writ, and that it was never served by any person authorized to serve it. In that case the authorization was on the back of the writ, in the form authorized on writs returnable before a justice. ' The court in that case say : “ It has always been considered that the justice form of authorizing one to serve a writ would not confer authority to serve a county court writ. It omits almost
The result is that the judgment of the county court is affirmed.
