Spear ex rel. Curtis v. Town of Braintree

47 Vt. 729 | Vt. | 1875

The opinion of the court was delivered by

Barrett, J.

The guardian brought a suit in 1869, against the defendant, in his own name as guardian of Spear, instead of the name of Spear by himself as guardian. The statute, ch. 72, § 28, enacts that a guardian “ shall have power to receive, sue for, and recover, in the name and right of his ward, all debts,” &c. So it is apparent that in that suit, he did not sue in the name, though it is equally apparent from the face of the writ that he sued in the right, of the ward. On objection taken, it was held that that suit could not be maintained, because it was not brought in compliance with the provision of the statute in respect to the name. The present suit was brought by the same guardian, in the same right, to recover for the same cause, as in the former suit. The only question is, whether the former suit went out by way of abatement, or was otherwise defeated, or avoided, for any matter of form, so as to avoid the effect of the Statute of Limitations upon the present suit. It seems difficult to be shown that it was for matter of substance. We are referred to the charge, as showing the facts. In that it is stated, that “ the suit was defeated by a defect in the writ — it being brought in the name of the wrong party — brought in the name of Mr. Curtis as guardian, instead of in the name of Lucy A. Spear by her guardian and next friend. This case, it seems, went to the supreme court, and they held it was a defect in the writ, and the suit went out.” As we have no other showing as to the going out of that suit, we assume that it was upon some plea or motion that asserted, for cause, this failure to comply with the letter of the statute. It was asserting a right strictissimi juris, while it seems obvious that mere delay, or an experiment with the Statute of Limitations, could have been the only object of interposing the objection. We have no doubt that, had that case proceeded to judgment on its merits, it would have been a conclusive adjudication of the subject-matter as to the liability of the town, and would have ended all right of further action on the claim. This would seem to test and determine whether the defect was one of form or substance ; for the judgment rendered in that suit, is not invoked in this as precluding the right to maintain this. The defence here is the Statute of Limitations. The case seems to us to fall within the express terms of the statute, without extension of operation in view of existing equities, as was the case in Phelps v. Wood, 9 Vt. 399, and Spear v. Curtis, 40 Vt. 59.

The ground and argument that this case is excluded from the salvo of the statute, because the defect in the former writ shows that it was not “ duly commenced,” carry verbal criticism beyond practical tolerance. In the line and sense of that criticism, any action that should result in defeating a judgment for the plaintiff, for any of the causes, or by any of the means named in the 17th section, except the death of the party, would show that the action was not duly commenced. The cases cited by the defendant’s counsel, do not come to the point on which this case hinges. In Bennington v. Densmore, 2 Gill, 348, it would seem that by the law of Maryland, if a writ is sued out before the statute has run, the statute would not prevail to bar a recovery, for the same cause of action under subsequent writs, provided they are successive continuances of each other. In that case, a writ had been sued out by an administrator before the statute had run. He was discharged, and another administrator caused a writ to be issued in his own name as administrator, for the same cause, after the statute had run. It was held that the writ issued in his name, was not in regular continuance of the writs issued in the name of the original administrator, and so did not save the cause from the operation ot tlie statute. This bears no analogy to the case in hand. The case of Williams v. Council, 4 Jones, Law, 206, holds that in ejectment, the second suit, in order to prevail against the statute, must be upon the same title, b_v the same real plaintiff. Our case answers to that. The real plaintiff is the same in both suits. The only defect in the first suit, was in the form of expression. The form in which the plaintiff party was named in the first suit, as plainly and fully signified that the suit was brought by the guardian in the right of the ward, as the form in the last suit expresses the same thing. They show that the real plaintiff is the same in both cases. There is no occasion to pursue the matter further in this line.

No point is made in the argument upon the point in the exceptions, namely, “ that the ground on which the former action failed, being the fault of the plaintiff, does not come within the exceptions of the Gen. Sts.” ; nor on any other point, save that already discussed in this opinion.

Judgment affirmed.