Columbian Granite Co. v. Town-Send

• Decision Date: 10 March 1902
• Citation: 74 Vt. 183,52 A. 432
• Parties: COLUMBIAN GRANITE CO. v. TOWN-SEND et al.
• Court: Vermont Supreme Court

52 A. 432

74 Vt. 183

COLUMBIAN GRANITE CO.

v. TOWN-SEND et al.

Supreme Court of Vermont. Washington.

March 10, 1902.

Exceptions from city court of Montpelier; Smilie, Judge.

Action by the Columbian Granite Company against W. C. Townsend & Co. Judgment sustaining a demurrer to defendant's plea in abatement and defendant brings exceptions. Affirmed,

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.

Frederick P. Carlton, for plaintiff.

Gordon & Jackson, for defendant.

TAFT, C. J. The defendant undertakes 'to impeach the officer's return, which is good on its face, by a plea in abatement, which is demurred to. Nothing is better settled than that an officer's return is conclusive between the parties, except in a proceeding to set it aside. Yatter v. Pitkin, 72 Vt. 255, 47 Atl. 787. Mr. Gould says that a defendant cannot falsify such a return by plea in abatement, but must resort to his remedy against the officer, if it be false. Gould, PI. c. 5, § 135. In Barr v. Satchwell, 2 Strange, 813, a scire facias was returnable on the general return day, which was Sunday, and not served till Monday, on affidavit whereof Sergeant Whitaker moved to set it aside, the sheriff having returned a scire feci. Sed per curiam: "If there be a false return, the defendant will have his action against the sheriff. But we will not try the truth of the return on a motion to set aside the proceedings." The defendant seeks to avoid this rule (the plaintiff objecting) by reason of a stipulation below that "no question shall be raised as to the form of the plea, but that the question for the court to consider shall be whether, upon the facts set forth in the plea, there was a service of the writ." But this cannot be. When the parties go into special pleadings, the rule is universal that they shall be confined strictly to the matters put in issue. Campbell v. Hyde, 1 D. Chip. 65. And when pleadings close in a demurrer no fact can be treated as in the case that does not appear from the pleadings and is not admitted by the demurrer, though admitted on hearing. Town of Hartland v. Town of Windsor, 29 Vt 354. Parties can, of course, submit a case on agreed facts; but those facts must be within the issue, for the court tries only such issues as the parties make by their pleadings. Carpenter v. Welch, 40 Vt 255. A demurrer admits only such facts as are well pleaded, and therefore never admits an allegation that the pleadings show the party is...