Chase v. Davis , 7 Vt. 476 ( 1835 )

The opinion of the court was delivered by

Collamer, J.

This petition, like any other petition for a new trial, is addressed to the sound judicial discretion of the court. It was for the county court to dismiss the petition or to grant it on such terms as the discretion of that court might dictate. It is clear that the discretionary power of our court cannot be exercised by another, or be revised by a proceeding in error; and therefore this court cannot pass upon the merits of this petition, on demurrer. But if the court below, on an interlocutory question, which, was really a question of law, dismissed the petition and refused to exercise its judicial discretion upon the merits, that proceeding may be reversed and the cause remanded to the county court for further proceeding.

It appears there was a motion to dismiss for irregularity of service, which it would rather appear the county court sustained and therefore dismissed the petition. No objection is taken to its being in the form of a motion rather than a plea ; and probably motion was the right form, as the matter was apparent of the record ; and had it been a plea, there might have been an issue to the jury and a verdict, which would have been an anomaly in the law of petition for new trial. It is however insisted, that this was, in substance, a dilatory plea and put in after the rule in the county court for such pleas had expired. The rules of practice of each court are of their own formation, and to be by them enforced or dispensed with, in their own discretion, and on such terms as they may choose to impose. -The county' court, by entertaining this motion or plea out of the time prefixed by their own rule, have disregarded no law and committed no error which can be revised by this court. But the parties here and the court below obviously put this question on entirely different ground, which we will now examine.

By the statute of 1829, a citation in a case like this is required to be served “ in the same manner original writs are required by law to be served.” Original writs, if attachments, must by law be served by the attachment of property or the arrest of the body, or if served by copy only, they amount to a summons. A writ of summons must be served by copy. Our statute is most clear and imperative. — Stat. p. 64. That service by reading only will not answer has been too often and uniformly holden, especially in re lation to warning out paupers, to be now questioned here ; however the law may be in Connecticut, as laid down by Chief Justice Swift. Thisfcitation not having been legally served, what was the effect? By this same statute of 1829, it is provided, that unless the citation be so served, the 'petition shall not be sustained. Here the legislature were not content to provide for .the mode of service and then leave the consequences of failure like other cases. Nor have they, like the cases of want of recognizance or want of joining the defendant’s landlord in ejectment, merely provided the writ should abate. They did not leave it to rules of court, or analogies of practice; but provided by .express statute, paramount to rules of court, that the petition should not be sustained. The petitionee might have remained absent, and the court could not have proceeded. Being under no obligation to appear, his appearance cured nothing, and he was not within the rule of court. Nothing short of directly submitting the merits to the court 'by plea could have cured the error.

Judgment of the countj court affirmed.