Cunningham v. Caldbeck , 63 Vt. 91 ( 1890 )

The opinion of the court was delivered by

POWERS, J.

The plea in this case is erroneously treated as a plea in abatement. This is not its scope nor its structure.

It is a plea to the jurisdiction of the Bennington County Court. It does not seek to abate the process, but disputes the right of the court to take cognizance of the process in the particular county where the same is pending.

Beanies says in his pleas in Equity 55, quoting Lord Coke that “ The King hath committed and distributed ail his whole }iower of jurisdiction to several courts of justice; ” that pleas to the jurisdiction in effect aim to transmit to each tribunal, the matters which the law has confided to its protection and cognizance. And Stephen says such pleas are not pleas in abatement inasmuch as they only refuse to answer in the particular court in which the action is brought. Stephen PL n. 20 to page 46. '

We find no authority which holds that pleas to the jurisdiction are to have the technical strictness of pleas in abatement, and the legislature manifestly had no such idea as it provided, R. L. s. 899, that actions brought in the County Court shall be brought in the county in which one of the parties resides, and if brought elsewhere the writ, on motion, shall abate.

A majority of the court in Barrows v. McGowan, 39 Vt. 238, were of opinion that a mere motion to abate the writ in such case was not sufficient, inasmuch as the non-residence of the parties did not appear on the face of the record, but could be made out only by proof dehors the process. Barrows v. McGowan was decided upon another ground, nevertheless we think that it is the settled rule that’a motion does not reach defects that require extrinsic proof to establish, and so the plea in this case can not be treated as a motion.

This plea refers to the writ and declaration, and from them and the allegations of the plea the non-residence of both parties in Bennington County when the action was brought and the negation of all • other grounds which would give the court in that county jurisdiction, are set forth with all the strictness requisite in pleas of this character.

The judgment of the Oou/nty Court is reversed, the- demurrer is overruled and the plea adjudged sufficient. The case is remanded with lea/oe to replead on the usual terms.