Town of Poultney v. Town of Sandgate

35 Vt. 146 | Vt. | 1862

Peck, J.

This is an appeal by the town of Sandgate from an order of removal of Rebecca Williams, a pauper,'and her family of five children (named in the order,) from Poultney toSandgate, made December 24th, 1859. Trial in the county court upon an issue of fact whether at the time of the order the last legal settlement of said Rebecca Williams was in Sandgate. The county c(>urt found .the issue in favor of the town of Poultney, and rendered judgment accordingly. The facts are stated in detail, presenting a number of questions for the consideration and decision of this court.

To prove the issue the plaintiff introduced a previous order of removal of the same pauper, Rebecca Williams, from Poultney to Sandgate, dated July 11th, 1854, under which it appears that no actual removal was ever made, the officer not being able to find the pauper within the life of the warrant of removal, and from which order of removal no appeal was taken and also the original complaint and warrant upon which said order was made, and the return of service, the defendant waiving all objection to this complaint, warrant, and return on account of the original instead of a certified copy being introduced, but not waiving any other objection thereto. This copy of the order has annexed to it a warrant or notice for service on the town of Sandgate pursuant to the statute of 1850 (Comp. Stat. p. 132, § 13,) with the return of service thereon, dated. July 19th, 1854, by the constable of Poultney, by which it appears that he served it on Reuben Hurd, overseer of the poor of tlio town of Sandgate, on that day, by leaving a copy of the order and warrant, with-his return thereon, at the house of the usual abode of said Hurd, in Sandgate, with Mary Monroe, a person of sufficient discretion, then resident therein. These papers wore also introduced, subject to such objections as might be made to them, except on account of some of them being originals instead of certified copies. It was conceded by the defendant that Reuben Hurd was overseer of the poor of Sand-gate from March, 1853, to March, 1855, and of course he was such at the time of the service of this order. The plaintiff insists that this order, made in 1854, served on Sandgate within thirty days after its date as above stated,.and not appealed from, is conclusive that at the date of the order the pauper’s settlement was in Sandgate, and that it entitles the plaintiff to recover, and so claimed in the county court, and that it precludes the defendant from showing that in fact she had not then and never had any .settlement in Sandgate.

The defendant denies that it lias such effect, and interposes various objections to these proceedings, from which it is claimed they are inoperative to fix the settlement in Sandgate.

1. It is claimed by the defendant’s counsel that by the statute on this subject no order of removal can be made and served that will be binding upon the adverse town, unless an actual removal is made under it, unless it be in certain exceptional cases provided for by statute, as where the pauper is sick and unable to be removed, or is confined in jail, and then it is claimed the pauper must be removed as soon as a recovery from sickness or a release from confinement will permit. The defendant insists that there is no provision in the statute for serving the order or giving notice of it, except when there is an actual removal, unless the case comes under one of the exceptions above stated, and hence'in this case insists that the justices had lib right to issue the notice, and the officer no power to serve it. If this is the correct view of the statute, this objection is fatal. But sue^i is not the construction of the statute.. The act of 1797 was so in effect. That statute provided for an appeal to the next term, and was construed to mean the next term after notice of the order ; but that statute provided for no other notice of the 'order of removal than the copy left- at the time of the actual removal; hence no appeal was allowed until the removal was made. But ever since the act of 1817 the law.has been otherwise. That act provided that the town should give notice of the order by a copy of the order left with the town against which the order was made, within thirty days after the making of the order, and allowed an appeal to the term next after notice of thes order. In Strafford v. Hartland, 2 Vt. 565, decided under the act of 1817, a copy of the order of removal was left with Hartland just before the December Term of the court, but the warrant of removal was not executed, or the paupers removed, till after that Term of the court, and not till the 27th of March following. Hartland appealed to the June Term, 1829, the next term after the removal,.but not the next term after notice of the order, and the court decided that the appeal should have been taken to the next term after notice of the order, notwithstanding no removal had then been made, and dismissed the appeal as being taken too late. The statute now in force, and which is the same as the Revised Statutes, as to taking the appeal and delivering a copy of the order certified by the justices within thirty days is substantially like the statute'of 1817, although not quite so explicit as to the time of taking the appeal. Comp.' Stat. p. 132, § 12, provides that a copy of the order certified by the justices shall be left with the overseer of the adverse town within thirty days after the making of such order, unless such pauper shall be removed within that time. In Braintree v. Westford, 17 Vt. 141, the court put the same construction on the Revised Statutes as was put upon the act of 1817 in Strafford v. Hartland, above referred to, and dismissed the appeal because not taken to the next term after the copy of the order was served. In Stowe v. Brookfield, 26 Vt. 524, a copy of the order certified by the justices was delivered by a citizen of Stowe to the overseer of Brookfield, within thirty days after the date of the order, and no removal was ever made or appeal taken, and the court held the order binding on the town of Brookfield. In none of these cases does .it appear that any reason was shown why a removal was not made when the order was served or copy left. This shows that the right and requirement to serve the order on the adverse town before making the removal, is not confined to cases where the pauper was sick or imprisoned. The actual removal of 'the pauper, therefore? under the order of 1854, is not necessary to its binding force,

2. The next question is whether the manner in which the service was made in this case is such as the statute requires.

Until the act of 1850 was passed, there was no mode of serving the order by sheriff or constable, by process directed to him to serve, except when actual removal was made, but the copy of the order was delivered by some private individual, and such delivery was proved by parol as any other fact in the case. But the act of 1850, (Comp. Stat. p. 132, §§ 13 and 14,) provides that the justices may certify a copy of the order, and append a notice, the form of which is given, directed to a sheriff or constable, and provides that it may be served by the sheriff of the county in which either town is situated, or a constable of either of said towns, as writs of summons are required to be served. This act only provides an additional mode of service'. This order was served in the manner provided by this act as heretofore stated. But the parol proof shows that in fact the overseer never got actual notice until recently, and not in season to appeal, by reason of the person with whom the copy was left not delivering him the copy, although the court find she was a person of sufficient discretion. This want of actual notice must be regarded as the misfortune of the town on which the service was made. It can not be interposed to defeat the legal effect of the order and service, especially as it appears that the officer in good faith has done his duty, and fully complied with the statute. The proceedings can no more be attacked in this collateral way than could a judgment recovered under such a service of a writ of summons, had a similar accident occurred to the defendant.

3. It is further objected that the service of the order could not be legally made until the day arriv ,'d, fixed by the order for the pauper to remove. It is true that the pauper can not be removed before that time, but the order may be served immediately without reference to that, as we have already seen that the service of the order may be a separate proceeding.

4. The defendants object also that the order itself is invalid, and we are referred to tlie original papers put into the case as before stated. It will be noticed that the bill of exceptions does not state that, the original order was put in; it states that the plaintiff put in the original complaint and warrant* Upon that is this entry : — “ July 11, 1854, considered by the court that the within named Rebecca Williams and her children, Charles, Frances, and Egbert,, be removed from the town of Poultney on or before the 1st day of August next.” If no other order than this was made, it probably would be held invalid. It does not state to what town the pauper was ordered to be removed, nor is there any finding that her legal settlement is in Sandgate, nor that she is chargeable, or liable to become chargeable, to the town of Poultney. To be valid, it must find all that the statute requires to justify the removal. But from the whole proof we can not intend that this is the only record of the order ; it must be regarded as a mere memorandum from which the order was ultimately made. The legitimate evidence is a certified copy of the order, and this the plaintiff did introduce, and it contains all that the statute requires, and is in due form. This is sufficient 'proof that there was an original, of which that is a copy. This defective order or memorándum is not shown by the exceptions to have been put in as the original order, it appears upon what the exceptions show the defendant put in as the original complaint and warrant and return. The copy of the order ' must be regarded as proof of an original of which that is a copy and which is perfect.

The order of removal in 1854 being valid, and the service thereof on Sandgate being regularly made, and no appeal being taken, that proceeding is conclusive of the settlement of the pauper in Sandgate at the date of that order. This is fully settled by the decisions above referred to, as well as others that might be cited. The case of Stowe v. Brookfield is directly in point. In that case the order was made and served, and no removal ever made under it, and no reason shown for not making the removal. The pauper at the time the second order was made, and which was appealed from, had resided seven years in Stowe continuously, and supported himself, but during the period of this residence the first order was made and served. The court held that the order was conclusive evidence that at the date of the order the settlement of the pauper was in Brook-field, and that the terra of residence prior to the first order could not be added to the residence between the first order and the one that was appealed from to give a settlement in Stowe. This covers the whole ground of the present case.

5. But the defendants’ counsel claims that, upon the facts stated in the exceptions, the marriage of Rebecca, the -pauper, t<5 Williams, in 1844, was invalid, and that therefore her marriage to Kenyon in 1846, by whom she had the children named in this order, and with whom she was living at the time the order was made in 1854, was valid, and therefore the justices had no' power to make that order, even if her settlement was in Sand-gate, for the reason that she could not be separated by a removal under it from her husband. But the answer to this objection is that if these facts constituted a valid objection to.the making of the order of 1854, the adjudication of the justices is as conclusive against these facts as of the settlement, or of any other' facts which the justices must have found to warrant the making of the order, as the adjudication is conclusive of every fact necessary to uphold it, and if on the other hand these facts constitute no objection to the making of the order, but only suspended the right to make an actual removal under it, still the order is coneluaive of the settlement in Sandgate, which is the only issue presented by the pleadings in this case, and these facts in this view are immaterial. These facts can not be urged either against the order in 1859, from which- this appeal was taken, or against the removal under it, as the 'only issue presented by the pleadings is upon the question of settlement of the pauper in Sandgate.

This conclusion on this branch of the case renders it unnecessary to pass upon the various points arising upon the evidence upon the question whether, independently of the order of 1854,-the legal settlement of the pauper was in Sandgate at the date of this order made in 1859, as the order of 1854 precludes the town of Sandgate from entering into that inquiry, unless proof of facts which show a change of settlement since the order of 1854;

The judgment of the county court is affirmed.