Chapman v. Chapman

Citation118 Vt. 120,100 A.2d 584
Decision Date03 November 1953
Docket NumberNo. 1040,1040
CourtVermont Supreme Court
PartiesCHAPMAN v. CHAPMAN.

Osmer C. Fitts and Paul N. Olson, Brattleboro, for plaintiff.

Lawrence C. Jones, Rutland, Albert G. Avery, New York City, of counsel, for defendant.

Vernon J. Loveland, Rutland, amicus curiae.

Before SHERBURNE, C. J., JEFFORDS, CLEARY and ADAMS, JJ., and HULBURD, Superior Judge.

ADAMS, Justice.

This is a petition for a new trial brought to this Court under V.S. 47, § 2158. It involves a divorce granted by the Rutland county court at the September term 1951. The petitioner and petitionee here, as we shall hereinafter refer to them, were the libellee and libellant respectively in that proceeding. The petition in the instant case is met by a motion to dismiss because of improper service.

The petition sets forth that Vernon J. Loveland, Esq., appeared and still appears in the original proceeding as attorney for the libellant, now the petitionee herein. The petition is dated December 12, 1952 and the citation attached thereto is of the same date. V.S. 47, § 2159 provides that when a party petitions for a new trial he shall give the adverse party notice of the petition by a citation 'served like a writ of summons' directing the adverse party to cause his appearance to be entered within twenty-one days from the date of service. The officer's return on the petition is as follows:

'State of Vermont

Rutland county, ss.} Being unable to find the petitionee, Marjory E. Chapman within my precinct and she not being an inhabitant of the State of Vermont, I made service of the foregoing Petition for a New Trial, Supersedeas and Summons upon the said Marjory E. Chapman by delivery of a true and attested copy thereof to Vernon J. Loveland, Esq., her attorney, at the City of Rutland in said County the 13th day of December A.D.1952, with this my return hereon thereon endorsed.

'Clarence E. Wiley

'Deputy Sheriff'

On January 5, 1953, Mr. Loveland filed with the clerk of this Court a motion asking to be heard amicus curiae. It alleged in substance that no service of the petition was in fact made on and no copy delivered to Loveland. It was accompanied by affidavits to that effect of Loveland and his secretary, Berniece Weinle.

On January 6th at the request of attorneys in Glens Falls, N. Y., Christopher A. Webber of Rutland entered his special appearance as attorney for the petitionee. On January 16th Mr. Loveland filed a so-called amendment of the officer's return on the original petition. It is as follows:

'State of Vermont

'Supreme Court

'Montgomery W. Chapman

vs.

Marjory E. Chapman

'I, Clarence E. Wiley, a resident of the City of Rutland, County of Rutland and State of Vermont, being duly sworn, do depose, testify and say:

'On December 13, 1952, acting in my capacity as deputy sheriff, I attempted to make service of Petition for New Trial, Supersedeas and Summons in the above entitled proceedings. Being unable to find Marjory E. Chapman within my precinct, and she not being an inhabitant of the State of Vermont, I made service upon her by delivering a true and attested copy of the above to Berniece W. Weinle, a person employed by Vernon J. Loveland, the attorney for Marjory E. Chapman, at the office of Vernon J. Loveland in the said City of Rutland, I did not deliver a copy of the above either to Marjory E. Chapman or to Vernon J. Loveland in person.

'I hereby amend my return to conform to the above statement.

'Clarence E. Wiley,

'Deputy Sheriff

'Subscribed and sworn to before me this 15th day of January 1953

'Donald Hackel

'Notary Public'

On January 19, Lawrence C. Jones entered his special appearance as attorney for the petitionee and on the same day filed a motion to dismiss the petition. On January 30, Mr. Webber asked leave to withdraw his special appearance and on September 21, Mr. Loveland asked leave to withdraw as amicus curiae.

There are five grounds set forth in the motion to dismiss but for our purposes they may be summarized as lack of jurisdiction for want of service on the petitionee, as the purported service by delivery of a copy to Berniece Weinle, a person employed by Mr. Loveland, the petitionee not being found within the state and not being an inhabitant thereof, was not service in compliance with V.S. 47, §§ 2159, 1555 or chapter 101 thereof.

We first consider the so-called amendment to the officer's return. The petitioner claims that the affidavit of the officer is not sufficient to amend the return as it does not point out how or in what manner the original return is amended or altered. We do not agree. It shows exactly what the officer did in serving the papers and substitutes certain facts for those set forth in the original return. It, with the remaining facts in the original return, shows a complete return. The petitionee treats the officer's return in her motion and brief as amended by the affidavit filed on January 16.

The petitioner claims that the officer's return cannot be amended except by leave of court. We agree. 'It is undoubtedly true, as a general rule, that an officer may be permitted to amend his return at the term of court to which the process is returnable, or, indeed, at any subsequent term, provided the rights of third persons will not be affected by it and there is something on the record by which the amendment or correction can be made.' Barnard v. Stevens, 2 Aiken 429, 432. 'It is well established that the tribunal issuing a returnable process which is required to be returned to itself is the only proper power to grant leave to the officer serving the same to amend his return thereon. Barnard v. Stevens, 2 Aiken 429; Bent v. Bent, 43 Vt. 42; Brainard v. Burton, 5 Vt. 97; Pond v. Campbell, 56 Vt. 674. From these authorities it is apparent that, after such process has been returned, no amendment to his return can be made by the officer making the service without the leave of the tribunal to which it is returnable; otherwise the records of such tribunal might be changed without its consent. It also further appears that such tribunal has almost unlimited power to grant leave to the officer to amend his return according to the facts, unless such amendment will affect the rights of third parties, who have acquired an interest in the property subsequently to the making of the return, and perhaps in reliance upon the truth of the return as originally made. The authorities cited by the defendant's counsel on this point show that there is no limited time within which such amendments must be made. The plaintiff is the party directly affected by the return amended. He does not stand in the relation of a third party to it.' Taylor v. Moore, 63 Vt. 60, 66, 67, 21 A. 919, 920. The petitioner does not question the truth of the facts set forth in the return as amended by the officer. The rule allowing an officer to amend his return to correspond with the facts is very liberal. Reynolds v. Bean, 91 Vt. 247, 251, 99 A. 1013.

It is the fact of service which confers jurisdiction and not the return and the latter may be amended to speak the truth. John Hancock Mut. Life Ins. Co. v. Gooley, 196 Wash. 357, 83 P.2d 221, 118 A.L.R. 1484. The authority to amend the return, as in the case of making it, is primarily in the officer and not in the court; but after making the return, the authority of the officer becomes qualified, so that it cannot be exercised without the consent of the court. Strictly speaking, then, the proceeding is one between the officer and the court. The amended return becomes the return in the case. Wade v. Wade, 92 Or. 642, 175 P. 192, 178 P. 799, 182 P. 136, 7 A.L.R. 1143. See 42 Am.Jur., Process, §§ 131-134; 72 C.J.S., Process, § 116; Annotation 132 A.L.R. 904.

We have no hesitation on the facts here, in allowing, in our discretion, the amendment to the officer's return to conform to the facts as set forth in his affidavit filed on January 16 as of the date it was filed.

We now consider the motion to dismiss because of improper service. The petitioner says that the motion was not seasonably filed. He says that county court rule 4 provides that dilatory pleas and motions must be filed within five days after the time for entering an appearance expires. It is true as he says, that the motion to dismiss is in the nature of a dilatory plea. Howe v. Lisbon Savings Bank & Trust Co., 111 Vt. 201, 216, 14 A.2d 3. We have no rule in this court in regard to pleading as in county court, but we are asked to invoke the county court rule in the instant case. If we should be inclined to follow the county court rule mentioned in regard to pleadings, about which we express no opinion, we do not think it applies to the instant case.

A motion to dismiss challenges only what appears of record. In re Everett's Estate, 112 Vt. 252, 254, 23 A.2d 202, and cases cited. In Bent v. Bent, 43 Vt. 42, 44, it was held that an officer's return is not a part of the record in the strict technical sense but it is a part of the papers on file which constitute the proceedings in the cause and a motion to dismiss reaches a defect in it. So it is in the instant case. The officer's return did not show the true facts in regard to the manner of service until his affidavit amending the return was filed on January 16. Any motion to dismiss filed before that time could not have been based upon the grounds available when the true facts were disclosed by the officer which then became a part of the record. Before that time the original return of the officer showing service on Loveland as attorney for the petitionee imported absolute verity, as between the parties, and could not have been contradicted except in direct proceedings to vacate or annul it. Shapiro v. Reed, 98 Vt. 76, 80, 126 A. 496; Bristol v. Noyes, 106 Vt. 418, 422, 174 A. 924. It is true that Mr. Webber filed a special appearance for the petitionee on January 6 but there was no legal opportunity to file the motion until the...

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13 cases
  • Green Mountain College v. Levine
    • United States
    • Vermont Supreme Court
    • March 5, 1958
    ... ... This includes a reference to the officer's return where pertinent. Chapman v. Chapman, 118 Vt ... 120, 125, 100 A.2d 584; Hanley v. United Steel Workers of America, 119 Vt. 187, 190, 122 A.2d 872. Our inquiry, therefore, ... ...
  • Chapman v. Chapman
    • United States
    • New York Supreme Court — Appellate Division
    • December 19, 1957
    ...the granting of the Vermont judgment. This petition was dismissed without prejudice for lack of proper service upon respondent. 118 Vt. 120, 100 A.2d 584. In February, 1954 appellant again petitioned the Supreme Court of Vermont for a new trial upon a petition identical in all respects with......
  • Hanley v. United Steel Workers of America
    • United States
    • Vermont Supreme Court
    • May 1, 1956
    ...proceedings in the cause and it may be referred to in connection with a motion to dismiss. Bent v. Bent, 43 Vt. 42, 44; Chapman v. Chapman, 118 Vt. 120, 125, 100 A.2d 584. From an inspection of the writ and the officer's return thereon in the instant case, it appears: The writ describes and......
  • Gates v. Gates
    • United States
    • Vermont Supreme Court
    • September 2, 1958
    ...served with notice' means personal service, that is, a delivery of a copy of the process to the party to be served, (Chapman v. Chapman, 118 Vt. 120, 128, 100 A.2d 584) by a person authorized by law to make service, Howard v. Walker, 39 Vt. 163, 166. 'The proper method of serving process mu......
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