68 Vt. 490 | Vt. | 1895
The action was commenced by trustee process, returnable before the city court of Rutland. The principal defendant being a non-resident and absent from the state, the writ was served on him by leaving a copy thereof with the trustee, as is required by V. S., s. 1319. The court continued the cause, pursuant to V. S., s. 1645, for notice to the defendant, and judgment was finally rendered against him by default, and the trustee adjudged liable. The only question presented for consideration by counsel for the trustee, is whether notice should have been given to the defendant by serving the writ upon him without the state, as is authorized by V. S., s. 1641.
This section provides, that, when an action is commenced, an absent defendant, residing or being without the state so that process cannot be served on him, may be notified of the pendency of such action and given opportunity to make defense therein, by the delivery to him personally, at any place without the state, of copies of the process and pleadings, and of an order for such delivery,, stating the time and place when and where he is required to appear, all under the hand of the clerk, or judge of the court, or a justice. V. S., s. 1643, was enacted at the same time as section 1641 and provides that, upon such notice, so given to a party at least twenty days before the time when he is required to appear, the same proceedings may be had, so far as to affect the title or right to the possession of goods, chattels, rights, credits, land, tenements or hereditaments in the state, as if such process or pleading had been served on a party in this state.
These sections were first enacted in 1878. Before their enactment the statute did not provide for personal notice to
These statutes were first enacted long before the passage of the enactment providing for the service of the process or pleading upon an absent defendant, without the state; and they were in- force at the time the process in this case was served, and the proceedings had before the court below, unless the act of 1878, providing for service of process 01-pleadings without the state, by implication, repealed some of them. We think that the passage of this act did not have the- effect to repeal any of the statutes then in force, relating
The act of 1878 does not require that the process or pleading shall be served on an absent defendant, without the state. If his whereabouts were unknown, it would be impossible to do so. It only provides that they may be served ; and, when so served, the same proceedings may be had, so far as affecting the title or right to the possession of goods, chattels, rights, credits, land, tenements or hereditaments in this state is concerned, as if such process or pleading had been served on the party in this state. When a writ is served on a party in this state, execution or writ of possession may lawfully issue without giving security for the payment of such sum as may be recovered^by writ of review. Since the passage of this act, a party plaintiff may have his writ served on an absent defendant, without the state; and, if this is done and judgment is recovered upon default, or otherwise, he may have execution and appropriate the property of the debtor, found in this state and taken on the original writ by attachment or trustee process, to the payment of the judgment recovered, without giving security by way of recognizance, conditioned for the payment of such sum as the absent defendant might recover by writ of review. If this is not done, and judgment is rendered upon default, without proof
We, therefore, hold that the service of the writ and procedure in the court below were in conformity to the mandatory requirements of the statute.
Judgment affirmed.