Town of Windham v. Town of Chester, 45 Vt. 459

Town of Windham v. Town of Chester

45 Vt. 459 | Vt. | 1873

The opinion of the court was delivered by

Ross, J.

I. The defendant’s third ground for quashing the order of removal of the pauper, Louisa Walker, as stated in its motion, is, that one Alonzo B. Cook is joined with said Walker in the complaint. The order of removal of Louisa Walker and family, is that which is appealed from ; Cook is not joined in the order which is the subject of appeal. The complaint sets up Cook as a resident of Grafton, and not as a resident of Chester. From the papers in the case, it does not appear whether the justices made any order in regard to him. As he is not named in the order appealed from, we are unable to see how the defendant is affected injuriously, or otherwise, by the fact that he is named in the same complaint by the overseer of the plaintiff t® the justices, or how the fact that he is joined in the complaint with the pauper ordered to be removed to the defendant, can be a misjoinder that the defendant can take advantage of in a motion to quash. If Cook had been included in this order of removal, it doubtless would have been a misjoinder, as the order of removal is the subject-matter brought up from the justices for adjudication in the county court. The complaint, by § 4, ch. 20 of the *463Gen. Stat., is rendered necessary, to enable the justices to issue the warrant to bring the paupers named in the complaint before them, that they may make the necessary inquiries, to enable them to make an order of removal if the facts found by them warrant it. No section of the statute requires the complaint, or a copy of it, to be sent by the justices to the county court, as a necessary paper in the proceedings of that court. We think this alleged ground for quashing the order is not tenable.

II. The defendant’s second ground for quashing the order is, that neither the number, nor the names of said Walker’s children, are given in the complaint, or warrant of removal, as required by the decision, 1 Aiken, 241, Hartland v. Williamstown. This ground for quashing the order is disposed of by the decision of this court in Landgrove v. Pawlet, 20 Vt. 309, in which the court_ review the case in 1 Aiken, and subsequent cases to that time, and hold that an order for the removal of a pauper, with his family and effects, is sufficient, and that the order need not set forth the names of the different persons constituting the pauper’s family, any more than it need particularize the different articles constituting the effects of the pauper.

III. The defendant’s first ground for quashing' the order is, that the pauper was not removed to the defendant town within thirty days after the making of the order; nor was any certified copy of the order of removal and the notice, left with the overseer of the poor of the defendant within thirty days after the making of the order, as required by the statute. The defendant admits that a copy of the warrant of removal was left within thirty days after the making of the order. The judge who certifies the exception refers to the files, and says they constituted all that was shown to the court on the trial. The files referred to as shown to this court, consist of the complaint of the overseer of the poor of the plaintiff to the justices ; the justices’ warrant on the complaint to the officer to bring the paupers before them ; the officer’s return on said warrant; the warrant for the removal of the pauper, Louisa Walker, with her family and effects, from the plaintiff town to the defendant town, issued by the justices ; the notice issued by the justices to the defendant town; and the officer’s *464return, said to be made on the warrant and notice. The officer’s return states that, “ by virtue of the order of removal, a certified copy of which is attached to the within precept to me directed, I served the same by leaving a true and attested copy of the same with Addison Adams, overseer of the poor of said town of Chester, and, also, then and there left with said overseer a like true and attested copy of this precept, with this my return,” &c. If this return of the officer is to be taken as true, the officer served a certified copy of the order of removal and the notice on the overseer of the defendant town. If the officer did this, the defendant town has received just such service of the papers in the case as § 1, No. 18, of the acts' of 1864, which this court held in Barnet v. Woodbury, 40 Vt. 266, to be a substitute for § 11, ch. 20, of the Gen. Statutes, requires. The defendant, whose duty it was to bring to the county court the proper papers for the appeal, has shown to that court no copy of such an order of removal as the officer’s return shows was served on the defendant. The county court have not found that no such order of removal exists. Wo cannot, from the fact that no copies have been produced by the defendant in the county court, assume that no order of removal has been made by the justices, nor that the justices did not deliver a certified copy of the same, with the notice, to the officer, nor that the officer did not serve the same on the defendant town in the manner he has officially certified in his return. The act of 1864 requires that a copy of the order of removal, certified by the justices, and the notice prescribed in that act, shall be served on the overseer of the town to which the pauper is ordered to be removed, in the same manner writs of summons are by law required to be served.

The parties to an ordinary writ of summons or attachment, are concluded by the officer’s return as to the manner of the service, and the return cannot, as between them, be contradicted or explained by extraneous evidence, or by the copy left by the officer. White River Bank v. Downer & Tr. 29 Vt. 332; Witherell v. Goss & Delano, 26 Vt. 748; 2 Saund. 148 c. The party is left in such cases to his action against the officer for any falsity in the return. Hawks v. Baldwin & Co. Brayt. 85. In an action *465against the officer, his return is prima facie evidence of the facts therein contained. Barrett v. Copeland, 18 Vt. 67. In Witherell v. Cross & Delano, Judge Isham uses this language: “ The true principle governing the case is this; wherever there is sufficient privity to enable a party to sustain an action against an officer for a false return, that return is conclusive in the proceedings under which it was made, and the party injured is driven to his action against the officerbut as to third persons, where no such privity exists, and no such action can be 'sustained, the return is not conclusive.” By this rule, which we think is the true rule in such cases, the officer’s return is conclusive evidence that he served a copy of the order of removal, certified by the justices, and the notice, on the overseer of the poor of the"defendant. At‘least, it is prima facie evidence of such service. We need not go so far as to hold that the officer’s return is conclusive evidence as to the manner and kind of service, for there is nothing in the files in the county court, to which this court is referred, to rebut the prima facie, not to say conclusive, evidence furnished by the officer’s return, of the truth of the service therein stated. The result is, that the facts relied upon by the defendant as the first ground for quashing the order of removal, though sufficient if proved, are not found by the county court, nor was there any evidence before that court from which to find such facts.

The judgment of the - county court is reversed, the motion to quash overruled, and the cause remanded.