Washburn v. New York & Vermont Mining Co.

| Vt. | Feb 15, 1868

The opinion of tbe court was delivered by

Pierpoint, C. J.

Tbe question comes before this court from tbe decision of tbe county court dismissing tbe action, on the motion of tbe trustee, for want of service on tbe principal debtors.

It is insisted on tbe part of tbe plaintiff, that tbe service on tbe principal defendants was sufficient. It appears from tbe return of tbe officer, that be attached upon tbe writ tbe real estate of tbe defendants and certain described personal property, by leaving a true and attested copy of tbe writ, with a description of tbe estate and a list of tbe property attached, indorsed thereon, in tbe town clerk’s office of tbe town of Bridgewater, and on tbe same day made service of “ this trustee writ on tbe within named Theodore J. Allen, by delivering a true and attested copy thereof to Albert Hubbard, agent of said Allen,” etc.

Tbe 37tb section of chapter 88 of tbe General Statutes, is that “ When tbe real estate of anyperson shall be attached, atrue and attested copy of such attachment, together with a description of tbe estate attached, shall be by tbe officer serving tbe same delivered to tbe party whose estate is so attached, or left at bis dwelling-house or last and usual place of abode; and tbe officer making such service, shall also leave a true and attested copy of such attachment, together with a description, of tbe estate so attached, in tbe office where by law a deed of such estate is required to be recorded, and if tbe party whose estate is attached, does not reside in this state, then such copy shall be delivered to bis tenant, agent or attorney, if any be known, and if no such tenant, agent or attorney be known, then a copy of such writ with tbe officer’s return thereon, lodged in tbe office in which a deed of such estate ought by law to be recorded, shall be deemed sufficient service.”

This section contemplates that a copy of tbe precept, with the doings of the officer serving tbe same indorsed thereon, shall be left with tbe defendant or with some person or at some place for Mm. This seems to be necessary to make tbe service complete, and tbe object is to give him notice of tbe proceeding, and of tbe nature of tbe demand that is made upon him, and of what be is called upon to answer to. In this case no copy was left with or for tbe defendants. It is claimed by tbe counsel for tbe plaintiff, that, as the defendants did not reside in this state and bad no tenant, agent or attorney in this state, the act of the officer serving ■tlie writ, in leaving a copy in the town clerk’s office with a description of the property attached, for the purpose of making the -attachment and creating a lien thereon, is a compliance with the statute, under the circumstances existing in this case, and that the ■act does not contemplate the leaving of any other copy with the town clerk for the purpose of notice to the defendant.

This construction of the statute, we think, is not correct. The copy left' with the town clerk to create the attachment, is not left for the defendant, but becomes a part of the files to be kept in the town clerk’s office, and from which he is to make the record required by law. He is not at liberty to give it to the defendant nor required to give him any notice of it. The copy required to be left with the town clerk for the defendant, is another and a differ>ent copy from that required to constitute the attachment. The latter is required to have only a' description of the property attached upon it. The former must have the officer’s return thereon. This may and often does constitute a material difference. "The officer’s return shows not only what was attached by him, by leaving the copy with the town clerk, but whatever else was done -either by attaching the personal property other than what is cov-ered by the copy so left, or by service upon a trustee, etc., all of which it is important to the defendant that he should be informed of, and which he could not learn from such copy left to create the attachment. Hence the propriety and. necessity of the requirement that a copy should be left containing such information. The leaving of a copy for the defendant, in cases, like the present, is ■the only service there is upon him. All the other proceedings have reference only to the .attachment of his property as security for the ultimate payment of the judgment, if the plaintiff succeeds in obtaining one. When such copy is left for the defendant, the -statute says it shall be deemed sufficient service. The service is then a legal service and enables the plaintiff to enter his suit in court and proceed with it there; but the law. does not regard this as sufficient notice : the plaintiff is still required to take certain prescribed steps with a view of giving notice to the defendant, in case he does not appear in the suit voluntarily.

As no copy was left for the defendants, there is no service upon them, there is nothing, that requires them to appear in court, and nothing can be presumed against them from the fact that they do not appear.

The question then arises, can the trustee take advantage of the want of service on the principal defendant ? Where the defendant appears in the suit, and submits himself to the jurisdiction of the court, and does not see fit to avail himself of want of service, or defect in the form of the proceedings, he may be regarded as waiving his objections; a judgment against him would-then be .good,- and the trustee could not take advantage of such defect, or want of .service; but where there is no appearance of the principal defendant, and it is apparent,'upon the face of the proceedings, that no judgment can legally be rendered against him, the trustee may well insist that the whole proceedings should be dismissed. There can be no judgment against the trustee, unless there is first a judgment against -the principal defendant, and where it is apparent that such judgment can not'be rendered, the trustee ought not to be kept in court.

Judgment of the county court is affirmed.