Mack v. Lewis

67 Vt. 383 | Vt. | 1894

MUNSON, J.

It is provided by s. 18, No. 28, Acts of 1892, that an appeal from the judgment of a justice shall be entered and docketed in the county clerk’s office on or before twenty-one days from the time such appeal is taken. This appeal was not entered within the time limited, and the question is whether the county court should have dismissed the appeal on motion.

Before the passage of this act an appeal could be entered only in term time ; and it was provided that if the appellant failed to enter the appeal at the next stated term of the county court, execution might issue on the justice judgment after the county court adjourned. The requirement that all cases should be entered by the second day of the term was merely a provision of the rules, and an entry could be had at any time during the term by special leave of the court.

We think the present law is intended to limit the time within which the appeal must be docketed to be of any avail. As to all original process it is provided in terms that if not filed in the clerk’s office within the prescribed time, the process shall be of no avail. The purpose of each requirement is to bring the case to a speedier determination by affording an opportunity for completing the pleadings in vacation. We think it would be inconsistent with the spirit of the act, and a serious interference with its beneficial design, to give this provision a different construction.

But the appellant contends that whatever construction be given the statute, the refusal of the county court to dismiss this appeal was correct, because the motion to dismiss was not filed at the earliest opportunity, nor within the time limited by the rule. It was within the discretion of the court to permit the filing of the motion out of time as regards the rule; and the court, having passed upon the motion, must beheld to have permitted its filing.. But the motion was then to be overruled if not seasonably made according to the principles of pleading. It is well understood that a defect of process that can be waived will be treated as waived if not complained of. The requirement is that the objection shall be taken at the earliest opportunity. The time available for this purpose does not necessarily extend to the taking of a continuance or the filing of some other plea. It is clear that this objection was not taken at the earliest opportunity if not taken within the time allowed by the rules of court for the making of dilatory motions. An entry out of time will not prevent an application of the rules if the defendant sees fit to appear. The appellee’s entry of an appearance must be held to have subjected him to the running of the periods limited, at least upon a calculation made from the date of his appearance. Treating this appearance as entered upon the first day of the fourteen allowed by the statute, the motion was not made within the rule. This delay was a waiver of the defect in the appeal, if the defect was one that could be waived.

This holding is but the application of an ancient doctrine to modern practice. All dilatory pleas were held to be waived by the general imparlance of the old law. A general imparlance was the time allowed a party for pleading upon an application in which no right of exception was reserved. The general rules fixing periods for the filing of pleas have taken the place of these special leaves. If the allowance of a general imparlance on application was a waiver oí the right to file dilatory motions, the running of the entire time allowed by rule for that purpose must have the same effect. Gould Plead., ss. r6, 17 ; Pollard v. Wilder, 17 Vt. 48.

The defect was one that could be waived. It was not anything affecting the jurisdiction of the court over the subject matter of the suit. The appeal was not absolutely void, but void until confirmed. The appellee could concur in submitting the case to the decision of the court, although not regularly entered. He did this by appearing, and permitting the time allowed for dilatory motions to pass without raising the objection. Huntley v. Henry, 37 Vt. 165.

Judgment affirmed and cause remanded.