94 Vt. 372 | Vt. | 1920
Tbe action is tort for trespass. The defendants are set up in tbe Writ as residents of Canada. The process issued as a writ of attachment and was served by attaching as the property of tbe defendants certain Canadian and Mexican bank bills, particularly described in the officer’s return, and by leaving proper copies with J. IT- Allen at the place where the bills were attached for the defendants, for want of a known agent or attorney of the defendants within the State. The defendants appeared specially by attorney and filed an answer in the nature of a plea to the' jurisdiction of the court. Therein it
In his replication the plaintiff admits all the material allegations of fact, but denies the .allegations that are conclusions of law, closing with a verification and a prayer that the plea be overruled, and that he have judgment in chief. It is stated in the bill of exceptions that the court ruled in favor of the plaintiff on the issue joined and allowed the defendants an exception. No findings of fact are referred to, and, so far as appears from the record, the issue as to jurisdiction presented by the answer was ruled against the defendants upon the pleadings, although it was stated in argument that on the hearing below there was a concession that the bills attached were the identical bills left by the defendants in the hands of Sheriff Allen. The proceedings were somewhat, informal, but it would seem that the question was decided as upon a demurrer to the answer, there being no fact in dispute and no issue joined except as to a question of law.
This being the rule in case of an ordinary pledge where the pledgee has possession and the principal obligation is fixed and certain, much more should it apply when the obligation is unliquidated and the pledgee is not in possession. In the case at bar the obligation for which the bank bills were pledged was contingent, and a prosecution of a suit to judgment was by the terms of the pledge essential to the enjoyment of any rights therein. The agreement by which the bills were deposited with Sheriff Allen contemplated the bringing of this suit. The law which the defendants invoke will not aid them in their attempt to obstruct its prosecution.
Upon the overruling of defendants’ answer the plaintiff moved for judgment in chief, claiming that he was entitled to such a disposition of the case as on a plea in abatement. Without entering a general appearance, defendants’ counsel was permitted to file what is denominated in the bill as "a written exception.” Therein the defendants "except to the court’s rendering judgment in chief without hearing on the merits on the ground that under the Practice Act' there is no longer any plea in abatement, and the strict, vigorous rules applying to such pleas are therefore abrogated; and this court has no right to render judgment in chief without'a hearing on the merits.” The "exception” was allowed, and the court rendered judgment in chief. Later,- on hearing- duly held, the damages were assessed, a bill of exceptions was allowed,' execution stayed* and the cause passed to this Court. The defendant’ Guilmette was notified of the- hearing, but did not attend.
Judgment reversed, and cause remanded.