Wescott v. Briere

This suit was commenced before a justice of the peace by a writ made returnable on November 1, 1939, in which the plaintiff himself was recognized for costs. The defendant appeared on the return day, and the plaintiff not appearing the cause was continued by the justice to November 15, 1939. The original record on appeal shows that on November 15, 1939, the cause was continued to March 14, 1940, but an amended record shows that prior to November 15, 1939, the defendant asked to have the cause again continued and held open until further notice, to which the justice agreed and the plaintiff assented, and that thereafter on or about February 29, 1940, on the application of the plaintiff the justice set March 14, 1940, for the hearing, of which the defendant had due personal notice, and that one William Hitt was accepted and noted on the writ as further recognizance for costs. On March 14, 1940, the defendant appeared specially and moved for a dismissal of the writ upon the grounds that there was not a proper recognizance on the writ, and that the cause was continued contrary to law. This motion was overruled, and upon the plaintiff's evidence judgment was entered for the plaintiff. Thereupon the defendant seasonably appealed to the Rutland Municipal Court, where the defendant's renewed motion to dismiss was granted, and judgment was entered in his favor, to all of which the plaintiff excepted.

P.L. 1458 provides that in actions before a justice of the peace such justice shall take security for the costs of prosecution before he issues the writ. P.L. 1492 provides:

"A writ of summons or attachment requiring a person to appear and answer before a court shall not be issued, unless sufficient security is given to the defendant, by way of recognizance, by some person other than the plaintiff, to the satisfaction of the authority signing such writ, that the plaintiff will prosecute his writ to effect, and answer the damages, if judgment is rendered against him; a minute of which recognizance, with the name of the surety and the sum in which he is bound, signed by such authority, shall be made upon the writ at the time it is issued; and, if a writ is otherwise issued, it shall, on motion, abate."

These two sections are parts of the same act and took effect at the same time, and hence it is our duty to harmonize them if it can be done reasonably. In other words, a construction that creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the act, and will carry out the intention of the Legislature. Richford Savings Bank and Trust Co. v. Thomas et al., decided at this term, ante, p. 393, 17 A.2d. 239; Anderson v. Souliere, 103 Vt. 10, 151 A. 509; Brace v.Hulett, 109 Vt. 360, 366, 196 A. 742.

By its terms sec. 1492 applies to all writs of summons or attachment requiring a person to appear and answer before any court. Justices' courts in this State are courts of record. Stone v. Proctor, 2 D. Chip. 108, 113. The words in sec. 1492 "and answer the damages, if judgment is rendered against him", have reference solely to the taxable costs established by law. Closson v. Staples, 42 Vt. 209, 220, 1 Am. Rep. 316. Consequently the words "sufficient security * * * that the plaintiff will prosecute his writ to effect, and answer the damages, if judgment is rendered against him", as used in sec. 1492, have the same legal effect as the words "security for the costs of prosecution", as used in sec. 1458. Sec. 1492 is more definite in prescribing that a writ shall not issue unless security is given, that security shall be given by way of recognizance, and that a minute of such recognizance shall be made upon the writ, while sec. 1458 merely says that the justice shall take security before issuing the writ, and does not say how such security shall be given and says nothing about minuting it on the writ. The only way we can reasonably harmonize these two sections is to hold that sec. 1492 controls. This does no violence to the plain words of sec. 1458 and carries out the intention of the Legislature.

The defendant contends that the defect in the recognizance, the giving of security by the plaintiff rather than some third person, makes the writ void, so that the defect cannot be waived, and places this writ in class 1 of void process, as given in Howe v. Lisbon Savings Bank Trust Co., 111 Vt. 201, 14 A.2d. 3, 6, which issues in violation of a statute prohibiting it, and cites Holden v. Campbell, 101 Vt. 474, 144 A. 455, and Ford v.Smead, 109 Vt. 129, 194 A. 369. These were petitions under chapter 92 of the Public Laws, section 2114 of which provides that such a petition shall not issue unless security is given in a certain manner.

If for no other reason, P.L. 1492 is distinguishable from P.L. 2114 in that sec. 1492 concludes with these words: "if a writ is otherwise issued, it shall, on motion, abate." This takes away a part of the force of the prohibition and makes the defect merely abatable matter, so that process defective in this respect goes into class 2 of void process as given in Howe v.Lisbon Savings Bank Trust Co., supra. This is illustrated byHuntley v. Henry, 37 Vt. 165, where the writ was not signed by either the clerk or a magistrate as required by law, and it was held to be a matter of abatement which could be waived. The time when such defect must be taken advantage of in justice court is illustrated by Wheelock v. Sears, 19 Vt. 559, an action for a penalty, where the statute, as in P.L. 2458, 2459, provided that the clerk or magistrate signing the writ shall enter upon it a minute of the day, month and year when the same was signed, and that a writ on which such minute is not made shall, on motion, be dismissed. It was held that the objection to the lack of such a minute upon the writ, like any ordinary matter of abatement, if not insisted upon at the earliest opportunity, in that case the return day of the writ, was waived. See, also, Pollard v. Wilder,17 Vt. 48. In Sisco v. Hurlburt, 17 Vt. 118, and Monti v.Thorington, 98 Vt. 22, 124 A. 713, cases cited by the defendant, the defects were seasonably taken advantage of.

The record fails to show that the defendant insisted upon the defect upon the return day of the writ. Consequently the defect was waived.

The second ground of the motion was that the case was continued contrary to law. The defendant contends that the justice continued the case more than three months, contrary to the provisions of P.L. 1472, which authorize an adjournment of not exceeding three months at any one time. Bryant v. Pember, 43 Vt. 599,603. The effect of any one adjournment for more than three months is the same as where under P.L. 1464 a justice, other than the one before whom the suit is pending, continues the suit more than thirty days at one time. Such a continuance continues the cause out of court, and unless waived entitles the defendant to have it dismissed. Bryant v. Pember, supra. See, also, Pinney v.Petty, 47 Vt. 616; Paddleford v. Bancroft, 22 Vt. 529.

As said in Commonwealth v. Maloney, 145 Mass. 205, 211,13 N.E. 482, and quoted in Perro v. State. 113 Me. 493, 94 A. 950:

"When a case is pending in a permanent court of general jurisdiction, with stated terms, in which continuances are from term to term, a defendant may waive the formal entries of continuance, and consent that the case may remain in court without such entries until asked for by either party. The court then retains its jurisdiction of the case and of the defendant, and has authority at any time to make the entries of continuance from term to term, and bring the case forward upon the docket of the term. A trial justice is not a permanent court, with stated terms. His court is a court of record, but it is a temporary court for each case, kept alive by continuances, and exercising limited jurisdiction by prescribed methods. The indefinite post-ponement of a case before it is in effect the indefinite post-ponement of the court. He has no jurisdiction to suspend and revive at his will a case and court before him."

It is unnecessary to determine what the effect would have been had the instant case been held open for less than three months, and whether under the authority of Keefe v. Drake, 87 Vt. 53,87 A. 347, such an indeterminate continuance discontinued the case. But this case was held open for more than three months before it was brought on for trial. As said in State v. Bruce,68 Vt. 183, 185, 34 A. 701, 702, where a case was by agreement held open, and nothing further was done or attempted for over a year, "it is not probable that it was intended by the words `held open', that the cause should stand open, without any limitation, or for a longer time than the justice could have adjourned it. We think, by the use of these words, it was intended that the cause should be held open for a time not exceeding the time the justice could then have adjourned it and that, at the expiration of this time, without an adjournment or any action by the justice the cause was no longer pending." The instant case was "held open until further notice". We think there is no difference in the intent between these words and those used in State v. Bruce,supra, and hold that the delay worked a discontinuance of the cause, unless waived.

There was no waiver of this irregularity. Pinney v. Petty,supra.

Error is not made to appear.

Judgment affirmed.