52 Vt. 503 | Vt. | 1879
These are two pauper cases between these towns, which for convenience were heard together, although they involved different questions — one in regard to the removal of Jonathan Nichols, and the other in regard to the removal of Leonard Nichols. Eor convenience they are disposed of together.
Since the very recent decision in the case of Starksboro v. Huntington, 50 Vt. 599, it may be considered as settled that the copies of the order of removal left with the overseer of the town to whicíi the removal is ordered, must state every fact necessary to give the justices jurisdiction, or the order on motion will be quashed. In the case of Jonathan Nichols the pauper was removed within thirty days from making the order of removal. By section 5, c. 20, Gen. Sts., the officer executing the warrant of removal was to leave a true and attested copy thereof, with his doings thereon, with the overseer of the poor of the town to which the removal was made. Where the removal of the pauper is made on the warrant, within thirty days from making the order, the service of the order of notice appended to the order of removal, duly certified by the justices making it, is not required to be made. No. 18, Sts. 1864. The warrant, in such a case, is, if duly served, the instrument which binds the town to which the removal is made, and on its legal sufficiency that town has a right to rely. The form of the warrant is prescribed by statute (chapter 127, s. 89, Gen. Sts), and requires that the record of the judgment of the justices making the order be inserted therein. If the statute is complied with in this respect, the copy of the warrant left with the overseer of the town to which the removal is made, will furnish such town full notice of the adjudication which has been made against it. The proceedings prior to such service are ex parte, and are not binding upon such town, unless had and made in substantial compliance with the statute. Hence, the record of the judgment of the justices required to be inserted in the warrant should set forth such facts and adjudications as show that the proceedings have been legal and valid from their inception, and that the justices making the order had jurisdiction in the premises. The warrant served upon the defendant town was fatally defect
Hence, in the case of Jonathan Nichols the judgment of the County Court quashing the order of removal is affirmed.
In the case of Leonard Nichols, the plaintiff has attempted to avoid the effects of the defendant’s motion to quash the order by replying thereto and setting up facts which do not appear on the face of ttje papers. Motions to quash reach only defects apparent on the face of the papers, and are not adapted to nor do they allow of the joining and trial of any issuable fact thereon. Such has been the uniform holding of this court. Waterford v. Brookfield, 2 Vt. 200; Culver v. Balch, 23 Vt. 618; Barrows v. McGowan, 39 Vt. 238. Hence, upon the face of the papers, should the proceedings be quashed ?
The defendant insists that the officer’s return does not show that he served a duly certified copy of the order of removal, with the order of notice appended, on its overseer of the poor, but only a copy of the notice. From the appeal, which was made, on the copy served by the officer, it is apparent that the officer in fact delivered the overseer of the poor of the defendant a copy of the certified copy of the order of removal, as well as of the order of notice appended thereto. In his return the officer states, “ by virtue of this precept, ... I made service ... by delivering ... a true copy of the within notice, with my return hereon and thereon endorsed.” It is insisted that the words “ precept” and “ notice ” can refer to only that part of the paper served in which the officer is commanded to notify the overseer of the poor of the defendant of the order of removal. The order of notice is in the form prescribed by No. 18, Sts. 1864. The act requires the justices making the order of removal to make and certify a copy of the order of removal, and append thereto a notice in the form prescribed. By the form the officer is commanded to notify the overseer of the poor of the town to which the pauper is ordered to remove, that the pauper was ordered to remove to such town by a day named by the subscribing authority, “ as by the above copy of record appears.” Thus we have the statute requiring the order of notice to be appended to a duly cer
From the certified copy of the record of the order of removal, it appears that the complaint of the plaintiff’s overseer of the poor was against Leonard Nichols ; • that the adjudication of the justices thereon was, that he had come to reside, had not gained a legal settlement in, and was likely to become chargeable to, the .plaintiff, when in fact his legal settlement was in, and he ought to be removed, to the defendant; and that the court ordered him, his wife Cornelia, his daughter Josephine, and his son Charles to remove to the defendant by a day named, and on their failure to comply with said order, “ that the said Leonard Nichols,” Cornelia his wife, Josephine his daughter, and Charles his son, “together with their effects, be removed and transported with his family and effects.” The order of notice states that Leonard Nichols with his family, to wit, Cornelia Nichols his wife, Josephine Nichols his daughter, and Charles Nichols his son, and effects were ordered to remove. The defendant contends that the
We think that the maxim, “ omnia rite aeta prcesumuntur ”, applies to judicial proceedings in pauper cases, as well as in other cases, and when the persons named to be removed with the pauper whose settlement is under adjudication are of a class that would be involved in and take the settlement adjudicated to him, the court is not to presume, because the words son and daughter are used rather than child, or children, that the persons named have therefore attained such an age that they are no longer a constituent part of the pauper’s family. No presumption was made in the cases heretofore cited, against the regularity of the proceedings. The case of Derby v. Barre, 38 Vt. 276, is relied upon by the defendant as establishing a contrary doctrine, and that the order should be quashed in toto, because the son and daughter are named in the order. In that case the complaint stated that “ Nancy Webb and her family, to wit, Sarah A. Webb, have come to reside in the town of Derby.” The order, among other things, stated “ that the said Nancy Webb and Sarah A. Webb have come to reside in,” and become chargeable to, the town of Derby, and that their legal settlement was in Barre, and then proceeds: “ Wherefore said court do order and direct that the said Nancy Webb and Sarah A. Webb, her daughter, do remove with their effects to said town of Barre.” The order was quashed on the ground that the order was for the removal of two persons who, so far as appeared when the order was made, had severally attained the age of majority, and were neither of them the husband or wife of the other. The majority of the court held that it did not appear that the daughter named was a minor, or that she was
The judgment of the County Court in the case of Leonard Nichols is reversed, the motion to quash overruled, and the cause remanded.