Boright v. Williams

• Citation: 88 A. 735,87 Vt. 245
• Parties: BORIGHT v. WILLIAMS.
• Decision Date: 08 November 1913
• Court: United States State Supreme Court of Vermont

88 A. 735

87 Vt. 245

BORIGHT

v. WILLIAMS.

Supreme Court of Vermont. Franklin.

Nov. 8, 1913.

Exceptions from Franklin County Court; Willard W. Miles, Judge.

Action by S. R. Boright against F. Williams to recover the price of three car loads of hay. Defendant filed a plea in abatement that, defendant being a nonresident, the party on whom service was made as defendant's agent was not in fact such agent On issue joined, the question of agency was determined in favor of plaintiff, and, judgment having been rendered for plaintiff on the verdict, defendant brings exceptions. Affirmed, and remanded for assessment of damages.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

Sheldon R. Boright, of Richford, and Warren R. Austin, of St. Albans, for plaintiff.

Stephen S. Cushing, of St Albans, for defendant.

POWERS, C. J. This is an action of assumpsit brought to recover the purchase price of three car loads of hay alleged to have been sold by the plaintiff to the defendant The defendant, appearing specially for that purpose, pleaded in abatement for lack of sufficient service. This was on July 30, 1912. The defendant was a nonresident and alleged in his plea that Austin T. Booth, upon whom as his agent service had been made, was not his agent at the time, and issue was joined on this averment. On March 31, 1913, the defendant moved to dismiss the writ for lack of sufficient service and for lack of jurisdiction. These motions were severally overruled, and the defendant excepted.

Afterwards a jury trial was had on the issue joined as above, and a verdict rendered for the plaintiff, thereby establishing the fact that the party served on was the defendant's agent The court thereupon rendered judgment in chief for the plaintiff and ordered an assessment of damages by the clerk. To the rendering of judgment in chief, the defendant excepted, but he found no fault with the order for an assessment.

That the court had jurisdiction of the process and the subject-matter, and that its jurisdiction over the defendant was alone in question, is quite apparent. The plaintiff admits that the defendant was a nonresident, and that the service of the writ was not in statutory form, and that the action would have been dismissed if proper objection had been seasonably made; but he insists that the defendant by his conduct waived the right to file his motions.

At the outset the defendant had a choice between two methods of procedure. He could move to dismiss for apparent defects of service, or he could plead in abatement for defects not shown. He could not do both. To hold otherwise would be to allow the defendant in effect to file three pleas in abatement, which is not...