Hubbard v. Dubois

| Vt. | Mar 15, 1864

Poland, Ch. J.

It is now well established law, that where the record of a judgment shows that the defendant appeared by attorney, such fact cannot be traversed or denied by him, nor will he be permitted to show that such attorney had no authority to so appear, and the judgment will effectually conclude him. St. Albans v. Bush, 4 Vt. 58" court="Vt." date_filed="1832-01-15" href="https://app.midpage.ai/document/town-of-st-albans-v-bush-6571360?utm_source=webapp" opinion_id="6571360">4 Vt. 58 ; Newcomb et al. v. Pech et al., 17 Vt. 302" court="Vt." date_filed="1845-02-15" href="https://app.midpage.ai/document/newcomb-v-peck-6573114?utm_source=webapp" opinion_id="6573114">17 Vt. 302.

In this case, the sole question is upon the proper construction of the record given in evidence ; does it show that the defendant Dubois did appear by attorney ? The record incorporates at length the writ and return of service thereon. From this it appears that the writ issued against Lamson, Hobart, Newell and Dubois as defendants, but service was made only on Lamson and Hobart. Immediately following the recital of the .writ and return of service the record proceeds as follows: “And at the same term come the said defendants by their attorney, J. P. Kidder,” &e., and proceeds to state the proceedings to a 'final judgment against the defendants. The defendants are not named in the record, after the recital or copy of the writ and return. Now what is the fair and reasonable interpretation of the word defendants, taken in connection with all that appears in the record; does it mean all the persons named in the writ as defendants, or only those upon whom service had been made, and who had been legally brought before the court ? The court had no proper jurisdiction over those upon whom its process had not been served, and could render no judgment against them, unless they voluntarily waived their right to be legally notified of the suit, and submitted to the jurisdiction of the court, by appearing in the cause either in person or by attorney. The whole power of the court over them rests upon their appearance, and therefore it seems just to hold that the record should show clearly and unequivocally that they did appear, and should not be assumed upon any doubtful or questionable construction of language. The word defendants is just as properly applicable to two defendants as to four.

The language follows the writ and return, which shows that two of the persons against whom the writ issued had been properly notified, and were properly before the court, and the others had not been notified and were not before the court at all, unless they had volunteered to come in. In this condition of things it seems to us that the more natural and reasonable interpretation is, that the appearance was for the former only, and not for the latter. At any rate it is too doubtful and uncertain to furnish that positive and conclusive bar upon those defendants not served, which is created by the record of an appearance in a suit.

The case of Blood v. Crandall, 28 Vt. 896, is conceded to be the strongest authority for the plaintiff which our -reports contain. In that case the record showed that the writ was served on one defendant named in the writ, and not upon the other. The record stated that “ the defendants came by A. B., their attorney, and the defendants confessed that they ought to account, &c., and it was considered by the court that the plaintiff recover of the defendants, >&c.” It was decided by the court that this record shew an appearance for both defendants — as well the one not served as the one who was. But the use of the plural, defendants, throughout the entire record, was not consistent with the fact of the appearance being for one-only, and there being but two persons named as defendants in the entire proceeding, the fair and reasonable intendment was that the word defendants referred to both, and that the appearance was for both. The point seems to have received but slight consideration in that case, but we are not prepared to say it was not correctly decided. But the case is so clearly distinguishable from this, that giving it its utmost force, it will not warrant a holding that this record shows unequivocally and clearly an appearance for those defendants upon whom the writ had not been served.

It appears from the exceptions that on the trial the defendant Dubois introduced a duly certified copy of the rule to the auditor, the citation from the auditor to summon the parties to appear before him, and the service of it, and also the auditor’s report. These papers were objected to by the plaintiff, but admitted in evidence by the court. But the court say that in making their decision, they made it solely upon the record which the plaintiff had introduced, and without reference to the copies of the papers introduced by the defendant. But these papers are referred to in the exceptions, and sent up as a part of the case. We do not see why they were not admissible. Properly they should be made a part of the record, as they were a part of the proceedings which resulted in the judgment, and though they were not incorporated into the record, still, when duly authenticated, we do not see why they were not admissibíe, as a part of it, or in connection with it.

The more usual course is not to incorporate the original writ and return into the record, but to refer to it as on file, but the constant practice is to send with the record, and as a part of it, an exemplification of the writ and return.

It may be true that these should not be allowed to contradict the record proper, but they may be considered in connection with it, and as aiding to explain the meaning of the record itself, when that is doubtful or equivocal.

In these papers Lampson and Hobart alone are named as defendants in the suit, making it clear that the appearance of Mr, Kidder was for them alone, and not for Newell and Dubois.

But without this, and upon the record alone introduced by the plaintiff, we think the court correctly decided.

Judgment affirmed.