32 Vt. 148 | Vt. | 1859
The first question raised by the defendants is, as to the validity o'f the judgment in favor of Wires & Peck v. R. Landon & Co., under the proceedings in which the property was attached.
The suit was brought originally in the county court, the plaintiff there claiming in damages only one hundred dollars, there being no allegation in the writ or declaration, as to the amount of the debtor side of the plaintiff’s account; but no motion to dismiss -or objection was made to the proceeding on that account. The matter was referred to an auditor, who made his report of the accounts of the parties, and the balance 'which he found due. From this report as now of record, it appears that the debtor side of the plaintiff’s account did exceed one hundred dollars.
In the case of Bates v. Downer, the question was raised on a motion to dismiss. The plaintiff offered -evidence to show that the debtor side of his account exceeded one hundred dollars. This evidence was rejected. No exception appears to have been taken to that ruling, and no notice is taken of it in the decision. It is not perfectly obvious on what ground the evidence was rejected-, inasmuch as the jurisdiction is not made to depend on the amount of the ad damnum, the balance due, or upon any fact that it is necessary for the plaintiff to allege in order to show his 'cause o'f 'action-. The question of jurisdiction in actions on book often depends upon the proof '; if the party claims over one hundred dollars-, that does not give the court jurisdiction, if the proof shows the debtor side of his account to be less. If the proof of the debtor side of the account will oust the jurisdiction, why will it not confer it, inasmuch as the jurisdiction is by statute made to depend solely upon that ? The proof was not offered to contradict any allegation in the writ, neither was it inconsistent with anything in it. It is conceded that the plaintiff was not bound to claim any more than was actually due, but that he should have alleged that the debtor side of his account was more than one hundred 'dollars. The omission of that fact was a defect in the pleading, but the jurisdiction does not depend upon that, but upon the amount of the account, and when it can be made to appear that that is within the jurisdiction of the court, so that they in fact have jurisdiction of the subject matter and of the parties, what practical or legal objection can there be to the court permitting an amendment of the declaration by an insertion of the necessary allegations, inasmuch as the jurisdiction is not made to depend upon its existence in the declaration, but upon its truth; and if the amendments were made, and it afterwards turns out in proof that the allegation is not true, the court still has no jurisdiction.
If, upon the face of the writ and declaration, it had appeared affirmatively; that the case was without the jurisdiction of the court, it might have merited a different consideration.
We are inclined therefore to think the judgment in this case is not to be held void, even though the court might have dismissed the suit, if a motion for that purpose had been made, as in Bates v. Downer.
It is next claimed that Wires & Peck did not take out their executions, and charge the property attached upon their writ within thirty days from the time their judgment was rendered; It appears that the execution was put into the hands of the officer on the 11th of January, 1858. It also appears that the November Term of the Chittenden county court, in 1857, at which the judgment was rendered, continued its session until the 7th of December, 1857, when it took a recess, or adjourned to the 21st of December lor the purpose of completing the business of the session. The court finally adjourned on the 24th of December, 1857. It is insisted that the regular term of the court closed on the 7th of December ; and that at the expiration of twenty-four hours thereafter the party was entitled to his execution, and not having issued it within thirty-days thereafter) the property was discharged.
Was the term of the court on the 7th of December so closed and completed that its subsequent session on the 21st is to be regarded as an adjourned term of said court, within the meaning of the statute authorizing an adjournment P Wé think it was not. It can be regarded only as a suspension of the business of the term for a definite period, adopted from considerations of convenience, and for the purpose of completing the business of the session, witlibut any intention on the part of the court of making it an adjourned term, separate and distinct from the regular term, when parties, attorneys) fclerk and court would be entitled to tax
That the county court so regarded it, is apparent from the fact that they felt it necessary or proper to make an order in relation to the issuing of executions, which would have been wholly unnecessary if they had regarded the regular business of the term as closed.
The question then arises as to the effect of such order, The statute provides that the day on which the plaintiff shall first, by lam without leave of the court, be entitled to an execution on any judgment, shall be deemed the time of rendering such judgment in all cases so far as relates to holding property attached, &c. If the plaintiff in that judgment was entitled to an' execution before the final adjournment of the court, it must have been by virtue of the leave of the court granted for that purpose, and not by virtue of law, as the statute declares that executions shall not issue until twenty-four hours after the rising of the court, unless by special permission of such court. And although the order of the court may have authorized the party to take out his execution at an earlier day, still his lien upon the property would continue until the expiration of the thirty days frqm the day after the rising of the court, and the lien of any subsequent attaching creditor is to be ascertained by computing from the same period ; so that the execution in this case was issued in season to charge the property.
But it is further insisted that no lien was created on the coal in controversy by the plaintiff on the writ in favor of the Farmers & Mechanics’ Bank v. Wilkins.
So far as an attempt was made by the plaintiff to attach the coal in question, by leaving a copy of the writ in the town clerk’s office, with a return thereon that he had attached all the coal in the town of Burlington, without anything further to indicate the •quantity, the kind or locality of the coal, we think it altogether insufficient to create any lien whatever, and if this were all there
This, we think, brings the case clearly within the principle established in Fletcher v. Cole, 26 Vt. 170, and -was sufficient to constitute a valid attachment; at all events, it is sufficient to. make the officer liable to the creditor for the property, and to enable him to maintain this action.against the receiptors, to whom he delivered the property, and who agreed to return it to him on demand.
The fact that Burton purchased the property from Wilkins cannot avail him here ; he bought it knowing of the attachment, and that the plaintiff held the property in his possession by virtue of it; all this appears on the face of the receipt, itself.
The judgment of the county court is affirmed.