Miller v. Potter

54 Vt. 267 | Vt. | 1881

The opinion of the court was delivered by

Ross, J.

The single question presented for consideration, is ? whether the justice had jurisdiction to issue the writ, and render the judgment sought to be set aside by the writ of audita querela. If he had such jurisdiction then what the guardian did in that suit, might probably be a waiver of the failure of the justice to appoint a guardian ad litem for the ward. The plaintiff in this suit, and defendant in the judgment sought to be vacated, is an insane person, under guardianship, and was at the time the writ was issued in the justice suit. By s. 2476 R. L., which was in force when the justice suit was brought, it is enacted: “No writ or execution shall be issued against a ward for a debt while he continues under guardianship.” This is as plainly prohibitory as language can make it. The justice suit was for the recovery of an alleged debt of the ward. Other provisions of the statute point out the method by which the debts against the ward at the time of the appointment of the guardian are to be adjusted. While under guardianship the control of the person and property of the ward is committed to the guardian, and it is made the guardian’s duty to provide for the ward. The statute quoted took away the jurisdiction of the justice of the peace over the process against the ward. All his proceedings were as though no writ had been issued. Want of jurisdiction of the process is as fatal to the further proceedings of the magistrate, as want of jurisdiction of the subject-matter. Aiken v. Richardson, 15 Vt. 500; Whitcomb v. Cook, 39 Vt. 585 ; Adams v. Whitcomb, 46 Vt. 708. The latter case fully illustrates and decides this principle. Where the court has jurisdiction of the process, and the subject-matter, and only lacks jurisdiction of the person of the defendant, the appearance of the defendant and participation in the suit gives jurisdiction over the person, by waiving the want of proper service. But no such waiver can be made of want of jurisdiction of the process, or subject-matter. Whenever and however knowledge of such lack of jurisdiction is brought to the court, it is its duty to stay further proceedings. All its proceedings from the beginning are coram non judice. Consent cannot confer jurisdiction in such a case. Glidden v. Elkins, 2 Tyler, 218 ; Thayer v. Montgomery, 26 Vt. 491; Rindge v. Green, 52 Vt. 204. It was, therefore, the duty of the justice court to have rendered judgment for the costs of the ward, as provided by statute, on its attention being called to the fact that it had not jurisdiction of the process, and for that reason no jurisdiction to render judgment against the ward. Its judgment is wholly void, and will be set aside on audita querela. Hastings v. Webber, 2 Vt. 407 ; Ball v. Sleeper, 28 Vt. 573 ; Glover v. Chase, 27 Vt. 533.

The judgment of the County Court refusing the relief prayed for is therefore erroneous, reversed, and judgment rendered that the justice judgment is set aside and held for naught, and that the plaintiff recover as damages the amount of his taxable costs in the justice suit, to be ascertained by the clerk, and for his costs of this suit.