Sons v. Griggs, 52 Vt. 460

Sons v. Griggs

52 Vt. 460 | Vt. | 1880

The opinion of the court was delivered by

Barrett, J.

The plaintiffs duly petitioned the Court of Insolvency to proceed against the defendant as an insolvent, according to the provisions of the law in that behalf. It was for the court to issue a citation upon such petition to require and compel the defendant to appear and answer. The court appended a citation, and it was served and returned. Thereupon it was discovered by the judge that said citation was not such as the law required, and was supposed by him to be void. He removed that citation from the petition, and appended a citation such as the law required, and had service thereof duly made — that service being preceded by a notice to the defendant, given by the sheriff who had the process for service, that the first petition was discontinued. As matter of fact the court had discontinued it of its own motion by reason of the failure of the court to issue such a citation as the *462law required. When such discontinuance was made by the court, and notice thereof given to the defendant, the first petition ceased to be pending. When the second citation was served there was no obstacle to it, on the score of the pendency of the former petition. It is to be presumed that the sheriff was requested by the judge to give the notice of the discontinuance of the former petition ; and this presumption was rendered, as matter of fact, as nearly conclusive as could be, by the fact that the judge had issued a new citation bearing the seal of the court. If defendant had been brought in question for not appearing in answer to the first citation, the production by him of the second citation served on him, would have been ample for his defence and protection. The ground of the plea did not exist, as alleged therein. This comprehensive view renders needless any debate of the subject, on the score of the reasons, rules, and cases bearing upon it. See 21 Vt. 362; 42 Vt. 552; 15 Vt. 645.

As to the motion to dismiss for want of recognizance for costs. The subject of costs is wholly of statutory provision. The statutes requiring recognizance for costs do not apply to petitions in insolvency. The law of such petitions is entirely and exclusively the statute providing for the proceeding. The general statutes in their provisions as to recognizance for costs did not contemplate petitions in insolvency, when enacted; and their language does not indicate their applicability to such petitions. The Statute of Insolvency makes no provision either in terms, or by reference, or by implication.

Judgment reversed, with costs, and cause remanded.