41 Vt. 611 | Vt. | 1869
The opinion of the court was delivered by '
The principal question involved in this case is whether the writ in the original action of King v. Fairfield
The writ was served upon the town by leaving a copy thereof with Augusta Soule, the assistant town clerk of said town of Fairfield, who had charge of the town clerk’s office and discharged the official duties of the town clerk. At the time the service was so made, the town clerk was not out of the state, but was in the town of Fairfield, where he resided. The said assistant clerk gave no notice to any of the officers of the town of such .service, and they had no notice in fact of the pendency of the suit ..until after the judgment was rendered.
The statute provides “ that all writs against a corporation shall be served by leaving a copy with the clerk thereof, unless he be absent from the state.” * * * “ If such clerk be absent from the state, such copy shall be left with one of the principal officers of such corporation.” , (Gen. Sts., 292, § 24.) It is also provided “ that during the sickness, absence, or other temporary disability of the town clerk, his official duties may be discharged by .an assistant clerk, for whose official acts such town clerk shall be responsible as for his own. Such assistant clerk shall be sworn, and all records and copies made and certified by the assistant clerk .shall, to all intents and purposes, be as regular and valid as if made .and certified by the town clerk.” (Gen. Sts., Ill, § 42, § 48.)
The provision first referred to prescribes the mode in which service shall be made upon a town or other corporation, and no ¿provision is made in the statute for service in any other manner, except when the clerk is absent from the state. The 24th section •has no reference to the duties of the town clerk ; nothing is required of him, and there is nothing in the statute that imposes upon him any duty in respect to the writ or suit, where service -is made upon the town by leaving a copy with him. He is simply made the officer to whom notice is to be given, and through him -to the town, not by any act of his, but by operation of law. When the copy is left with him, the town has legal notice of the pendency of the suit, and the plaintiff in the suit can proceed to take his judgment by default, if the town does not appear to defend. The
Under the statute, is the assistant clerk a proper person on whom to make service of a writ against the town, and can legal service be made upon him ? An assistant clerk is not strictly an officer of the town ; he is not appointed by the town, or responsible to the town; he is appointed by the clerk, and the clerk is responsible to the town for his acts. The statute does not permit service to be made upon him when the town clerk is absent from the state, but it must be made upon one of the principal officers of the corporation. Why then should service be made upon him when the town clerk is within the state and accessible ?
The question was before the court in Charleston v. Lunenburgh, 21 Vt., 488. In that case the town clerk was out of the state, leaving an assistant. The writ was served upon one of the principal officers of the town, as provided in section 24. It was insisted that the service was illegal; that the town clerk in the statute included assistant clerk, and that service should have been made upon him. But the court held otherwise, and that the term “ cleric” did not include the assistant clerk, and that the service was legally made upon the principal officer of the town. We think the decision in that case fully covers the question involved in this, and must be considered decisive of it.
We think the county court erred in holding the service in this case to be legal.
The decision of the county court that the petitioners were not unjustly deprived of their day in court, etc., and that their failure to appear and defend resulted from the negligence of the petitioners, and the negligence of their clerk and assistant, for which they are responsible, was based upon the decision that the service was legal. If the county court had regarded the service illegal, they would undoubtedly have granted the prayer of the petitioners.
The decision below was made upon legal grounds, and not as á ihatter of discretion, hence it may be reviewed by this court.
Judgment of the county court reversed, and judgment entered that the judgment of the justice be vacated, and a trial granted to the petitioners, and the case remanded to the county court to be there proceeded with.