Enosburg Grain Co. v. Wilder, 546.

Decision Date13 May 1941
Docket NumberNo. 546.,546.
Citation112 Vt. 11,20 A.2d 473
CourtVermont Supreme Court

[Copyrighted material omitted.]

Exceptions from Franklin Municipal Court; Stephen S. Cushing, Acting Judge.

Action by the Enosburg Grain Company against Allen Wilder and others wherein plaintiff sought to hold defendants liable as copartners for a sum claimed to be due for grain and feed previously sold and delivered. A verdict was returned for plaintiff against all defendants. Defendants' motion to dismiss the action after verdict and before judgment was overruled, and defendants bring exceptions.

Judgment affirmed.


Keith Brown, of Richford, for plaintiff.

Sylvester & Ready, of St. Albans, for defendant.

MOULTON, Chief Justice.

This cause was tried by jury in the Franklin Municipal Court. The plaintiffs arc co-partners, and the three defendants Allen Wilder, Ross Clark and Eunice Clark were sought to be held liable as co-partners for a sum claimed to be due for grain and feed previously sold and delivered. The verdict was for the plaintiff against all three defendants.

After verdict and before judgment the defendants moved to dismiss the action because there had been no evidence that, prior to the issuance of the writ, the plaintiff had complied with the provisions of Chapter 247 of the Public Laws by filing a return setting forth the location and nature of the business and the individual names and residences of the individual partners as required by sec. 6040, and, consequently, and in accordance with sec. 6053 was prohibited from maintaining the action. The motion was overruled and the defendants excepted.

A failure to comply with the provisions of Chapter 247 prior to the issuance of the writ makes the process void and deprives the court of jurisdiction, under the peremptory terms of P.L. 6053, and this is a defect that cannot be waived by the adverse party, for jurisdiction of the process is as essential as jurisdiction of the subject matter. Wilson Bros. Garage v. Tudor, 89 Vt. 522, 525, 95 A. 794. "Process prohibited by law is void. A defect of this kind cannot be cured by waiver, consent or agreement. To permit this would be to nullify the statute." Howe v. Lisbon Savings Bank & Trust Co., Vt., 14 A.2d 3, 6, 8; Hayden v. Caledonia Nat. Bank, Vt., 20 A.2d 675. The statute, however, is regulative in nature, and does not render the transaction illegal, in the sense of being void, but affects only the remedy. Nemie v. Todd, 89 Vt. 502, 506, 96 A. 14; Ambro Adv. Co. v. Speed-Way Mfg. Co., 211 Iowa 276, 233 N.W. 499, 500.

The inquiry under the motion to dismiss relates only to what appears of record. Tracy v. Grand Trunk Ry. Co., 76 Vt. 313, 318, 57 A. 104; Flory v. Flory's Estate, 98 Vt. 251, 252, 127 A. 369; Leonard v. Willcox, 101 Vt. 195, 203, 142 A. 762; In re Delligan's Estate, 110 Vt. 294, 302, 6 A.2d 1. Here, the record contains nothing upon the subject, one way or the other; and so we must ascertain upon which party lies the burden of proof, a question left undecided, as regards this particular statute, in Bishop & Co. v. Thompson, 99 Vt. 17, 21, 130 A. 701.

The municipal courts of this State, as established by Chap. 57 of the Public Laws, are courts of record (P.L 1404, 1405) and the proceedings therein are according to the course of the common law. Although certain causes are not triable by them, and there is a statutory restriction as to the amount involved in civil actions, these courts are to be classed as courts of general jurisdiction. McDevitt v. Connell, 71 N.J.Eq. 119, 63 A. 504, 505; Colagiovanni v. District Court, 47 R.I. 323, 133 A. 1, 2. This conclusion is not affected by State v. Cloran, 47 Vt. 281, 285, in which it was held that the Burlington City Court was a court of limited and special jurisdiction with no authority to act otherwise than as specified by the statute by which it was created; for this court, which no longer exists, was established by the provisions of the then charter of the City of Burlington (Sec. 11, No. 255, Acts of 1872), and its jurisdiction in civil actions extended only to those causes wherein a resident of the city was a party, or, in some instances, where neither party was a resident of the State, and, although it had authority to try certain criminal offenses committed in the County of Chittenden, it had no power to do so by jury in proceedings of this nature. Every presumption that is not inconsistent with the record is to be indulged in favor of the jurisdiction of a court of general jurisdiction. Applegate v. Lexington, etc., Mining Co., 117 U.S. 255, 6 S.Ct. 742, 29 L.Ed. 892, 896; Treat v. Maxwell, 82 Me. 76, 19 A. 98, 99; Horn v. Horn, 234 Ill. 268, 84 N.E. 904, 905, 906. Indeed, it has been held that the same rule applies in this state to the jurisdiction of justices of the peace. Vaughn v. Congdon, 56 Vt. 111, 116, 48 Am.Rep. 758; Wright v. Hazen and Gordon, 24 Vt. 143, 146. The contrary not appearing by the record it will be presumed that all incidental steps necessary to confer jurisdiction have been taken. Colagiovanni v. District Court, supra; Davis v. Rothenberg, 124 Okl. 74, 254 P. 37, 38. This presumption placed upon the defendants the duty of producing evidence tending to show that the requirements of Chap. 247 had not been met. Tyrrell v. Prudential Ins. Co., 109 Vt. 6, 23, 192 A. 184, 115 A.L.R. 392; State v. Lizotte, 109 Vt. 378, 387, 197 A. 396. In Arel v. Centebar, 73 Vt. 238, 239, 50 A. 1064, a motion to dismiss for lack of jurisdiction was held to have been properly overruled when there was nothing on the record to show such lack. And see, Scott v. Darling, 66 Vt. 510, 514, 29 A. 993. The great weight of authority is that the burden of showing noncompliance with partnership registration statutes is upon the party raising the issue; Davis v. Rothenberg, supra; Humphrey v. City Nat. Bank, 190 Ind. 293, 130 N.E. 273, 278; and cas. cit. Annotations, 45 A.L.R. 276 ff., and 59 A.L.R. 460. There was no error in the denial of the motion. The defendants had not sustained the burden. The defendants also moved to set the verdict aside upon several other grounds, and excepted to the denial of their motion. Only one of these grounds is briefed, which is that the finding by the jury that the defendant Ross Clark was liable as a co-partner was wholly unsupported by the evidence. The plaintiffs do not claim that he was actually a partner, but merely that he held himself...

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