90 Vt. 312 | Vt. | 1916
This is an appeal from a decree entered on a petition to foreclose a mortgage. The appellant was a resident of the City of New York, and copies of the process were delivered to her personally at that place under an order of notice issued by the clerk. She appeared specially by a solicitor, and moved to dismiss the petition on several grounds specifically stated. The most important objection is that the copies were delivered by a person not named in the order of notice.
The provision for giving notice to an absent defendant in any action at law or in equity by the delivery of copies outside the State, dates from No. 48, Acts of 1878. Ye do not find that the question before us has arisen in connection with this statute. Our decisions regarding the sufficiency of special au
The statute under which these copies were delivered relates solely to the giving of personal notice outside the jurisdiction. The importance of the duty imposed is obvious, for the giving of the notice charges the property of the defendant in the State the same as if there had been service within the State. The statute requires the delivery of copies of the process and pleading, and of the order for such delivery, to the defendant personally, by a person not a party. The proof thereof is to be by affidavit, stating the time and place of delivery, the age of the defendant or that he is above the age of twenty-one years, and the reason why the affiant knew the person to whom the copies were delivered to be the person named therein as a party. P. S. 1997, 1998. It is true, as urged by the petitioner, that this statute contains no express requirement that a person to make the service be named
It is objected that there is no recognizance for costs. The claim is based on the fact that the name of the recognizor is typewritten. The name is that of one of the firm of solicitors who brought and prosecuted the petition, and in so doing must have presented it for filing and secured the order of notice. In these
It is claimed that the order of service was defective because made returnable to a term of the court of chancery, and also defective because it required the defendant to cause her appearance to be entered with the clerk on or before forty-two days from the date of the writ, when there was no “writ” in the case. These objections can easily be obviated in drawing a new order of notice, and need not be considered.
A question arises as to the status of certain depositions on file in the case. A motion to shorten the time of redemption was made a part of the petition as required by the rule, and a notary’s notice to the defendant to be present at the taking of depositions to be used on this motion, addressed to any sheriff or constable in the State or to any indifferent person, was attached to the original petition, summons and order of notice, and was included in the papers certified to by the clerk and delivered to the defendant under the order of notice. The defendant claims that there was no legal service of the citation.
"When the adverse party resides out of the State, notice of the taking of a deposition may be given him by a citation served like a writ of summons on his attorney, if his attorney resides in the State; or, if he has no attorney in the State, the deposition may be taken without notice; in which case it must be filed in the court where the cause is pending at least twenty days before the time of trial. P. S. 1615, 1616. The attorney intended is the attorney in the cause. Brintnall v. Saratoga, etc., R. R. Co., 32 Vt. 665, 677. The deposition may be taken at any time after the suit is commenced. P. S. 1614. It seems that the suit is to be considered commenced for this purpose when the process is so served “as to render the defendant subject to the consequences as a party.” In re Foster, 44 Vt. 570. No distinction can be made between the petition and accompanying papers, and the notary’s citation, as regards the failure to name a person to make the delivery. A citation to attend at the taking of a deposition is put on the same footing in this respect as writs of attachment. St. Johnsbury v. Goodenough, 44 Vt. 662.
Decree reversed and cause remanded.