73 Vt. 273 | Vt. | 1901
Burbank had obtained a judgment against Hunt before a justice of the peace, and Blunt brought this petition to the County Court to set aside the judgment on the ground that he had lost his day in court through mistake. The petition was demurred to, and the case was heard below upon the petition and demurrer without testimony. The court filed a statement of facts found, as if the case had been heard upon testimony and had been one that might have been tried by the jury. V. S. 1627. . There was probably some reason for this departure from regular procedure, but what it was we are not advised. In the bill of exceptions it is stated that the court “sustained the demurrer, adjudged the petition insufficient, and as a matter of discretion dismissed the petition with costs.” In the .statement of facts found, which is printed with the record, it is stated: “Prom the foregoing facts the court as a matter of discretion adjudged that the petition should be dismissed with costs.” In a case heard upon demurrer there could, of course, be no finding of facts, for the law treats all facts well pleaded as admitted by the demurrer. Therefore we look alone to the statement in the exceptions proper, disregarding the irregular finding of facts, and the question is: Did the court err in dismissing the petition, treating the facts well pleaded as true ?
The petition alleges in substance that Burbank took out a justice writ against Hunt returnable at North Hyde Park, February 19, 1900, at 1 p. m.; and had it served by the attachment of property; that Hunt told the officer he might send him his copy by mail; that “if said copy was sent, which the peti
The statute requires the petition in these cases to be verified by oath. Hence the allegation upon information and belief, even if it be material, is not admitted by the demurrer and must be disregarded. Woodworth v. Coleman, 57 Vt. 368.
It was necessary that the petition should set forth such facts as bring the case within the statute. It was not enough to say that the petitioner had lost his day through mistake; but the character of the mistake, how it happened, must appear. The present statement of how it happened is vague and perfectly consistent with the supposition that the writ was received by the petitioner and afterwards mislaid or lost by him. He knew the return day. Not knowing or remembering whether the hour was in the forenoon or the afternoon he had no right
Judgment affirmed.