40 Vt. 59 | Vt. | 1867
The opinion of the court was delivered by
This is an action of debt on judgment.
The defendant pleads:
1 st. Nul tiel record.
2d. That the cause of action did not accrue within eight years, etc. ..
3d. That the action was not brought within eight years after the rendition of the judgment declared upon.
Upon the first plea no question arises.
To the second and third pleas the plaintiff replied ,- and to the replication the defendant put in a general demurrer, and the question is as to the sufficiency of the replication.
In chapter 63 of the General Statutes, relating to the limitation of actions, section 11, it is provided that all actions of debt on judgment shall be brought within eight years next after the rendition of such judgment. In the 17th section it is provided that, “ if in any action duly commenced within the time in this chapter limited and allowed therefor, the writ shall fail of a sufficient service or return, by any unavoidable accident, or by any default or neglect of the officer to whom it may be committed, or if the writ shall be abated, or the
The plaintiff in his replication alleges that within eight years next after the rendition of the judgment declared upon, he duly commenced an action on said judgment, before a justice of the peace, but that he failed to obtain a judgment against the defendant in such action, in consequence of the neglect of the' magistrate, before whom the suit was brought, to attend, with the writ, at the time’and place of trial, and without any fault or neglect on the part of the plaintiff, and that this action was brought within one year after such determination of the former suit.
The defendant has raised several questions as to the form in which the alleged facts are set out in the replication. If these objections had been presented by a special demurrer they might have merited a different consideration, but they are of such a character that it is clear that advantage cannot be taken of them upon a general demurrer.
It is further claimed by the defendant that, although the replication professes to answer both the second and the third pleas, it does not, in fact, answer the second plea, for the reason that it does not allege that the cause of action did accrue within eight years, etc.
If this objection is well taken it applies with equal force as to both pleas, for it is not alleged in the replication either that the cause of action accrued within eight years, or that the action was brought within eight years after the cause of action did accrue. But it was not the object of the pleader by his replication to take issue upon either of these points, but to confess their truth, and then, by presenting the" new matter set forth therein, to bring the case, within the provisions of the 17th section of the statute above referred to, and thus avoid the legal, effect of both. Hence, if the matter alleged is sufficient to bring the case within the provisions of that section, it operates as a full answer to both pleas. The question then arises, are the facts alleged sufficient for that purpose ?
The defendant insists that the failure of the suit for the cause-alleged does not bring the case within the provisions of the statute. In Phelps & Bell v. Wood, 9 Vt. 399, a question depending upon facts almost precisely like the present came before the court, under a provision of the statute, that was somewhat different in its phraseology, but in its substantial features and objects the same as that now in force. In that case the first suit failed in consequence of the. neglect of the magistrate to appear at the time and place of trial. Judge Redeield, in his opinion, admits that the case does not come-within the terms of the statute, yet he says, it is evident this exception or proviso of the statute was intended to reach all those cases where a suit was brought, and the merits of the action failed to be tried, without the fault of the plaintiff, and the period of limitations had become complete during the pendency of the suit. So that the present suit is clearly within the equity of the proviso, although not strictly within its terms. It may be said too, that should a suit be abated without a plea, but on motion, as may sometimes be done, the case would not come within the exception. The same is true when the plaintiff is compelled by some error in pleading, variance,, or otherwise to become nonsuit without his own fault. And no doubt these cases and many others, not coming within the terms of the proviso, would still be held to come within its equity.”
The statute of Massachusetts, which, on this subject, is identical with our present statute, has received the same liberal construction, by the courts of that state. In Coffin v. Cottle, 16 Pick. 386, Ch.
The statute is a remedial one, and should be liberally construed in favor of the object sought to be accomplished by it, and that object is to give the party the right to maintain a new suit, when, without his fault, the first, which was brought before his claim was barred by the lapse of time, has failed before he could bring it to trial upon its merits. In this case, if the officqy who served the writ had neglected to return it to the magistrate, that would have been within the terms of the statute. The neglect of the magistrate to appear with it at the place of trial is of the same character, and although not within the strict letter of the statute, yet is so clearly within the spirit, equity, and object of the statute, that we think it must be regarded as fairly embraced within it.
Judgment of the county court is affirmed.
