Enosburg Grain Company v. Wilder And Clark

• Decision Date: 13 May 1941
• Citation: 20 A.2d 473,112 Vt. 11
• Parties: ENOSBURG GRAIN COMPANY v. WILDER AND CLARK
• Court: Vermont Supreme Court

20 A.2d 473

112 Vt. 11

ENOSBURG GRAIN COMPANY v. WILDER AND CLARK

Supreme Court of Vermont

May 13, 1941

February Term, 1941.

P L. Chap. 247, Municipal Courts.---1.Failure to Comply with P. L. Chap. 247 makes Process Void, P. L. 6053.---2.Process Void by P. L. 6053 and Not Curable by Waiver, Consent or Agreement.---3. P. L. 6053 Affects the Remedy Not the Right.---4.Motion to Dismiss for Violation of P. L. Chap 247 Goes Only to Record.---5.Municipal Courts have General Jurisdiction with Restrictions, P. L. 1404, 1405.---6.Presumption of All Essentials to Jurisdiction.---7.Defendant has Burden to Show no Jurisdiction Because of P. L. Chap 247.---8.Motion to Set Aside Verdict on Grounds No Evidence.---9.Contradictions for Trier.---10.Support of Plaintiff's Verdict through Evidence of Partnership.---11.Quitclaim Deed of Joint Interest.

1.A failure to comply with the provisions of P. L. Chapter 247 requiring the registration of certain partnerships, etc prior to the issuance of process in which such a partnership is plaintiff makes the process void and deprives the court of jurisdiction, P. L. 6053.

2.The direction of P. L. 6053 that a partnership required to register should not upon failure to register institute any proceedings, makes any process issued in violation thereof defective and not curable by waiver, consent or agreement.

3. P. L. 6053 being regulative in nature affects the remedy only and does not render the transaction void.

4.A motion to dismiss on the ground that the plaintiff had not registered as a partner as required by P. L. Chapter 247 relates only to what appears of record and where the record contains nothing the court must ascertain which party has the burden of proof.

5.Chapter 57 of the Public Laws which established municipal courts created them courts of record of general jurisdiction with proceedings therein according to the course of common law but with a statutory restriction as to the amount involved in civil actions, P. L. 1404, 1405.

6.Since every presumption that is not inconsistent with the record is to be indulged in the favor of the jurisdiction of a court of general jurisdiction it will be presumed, if the contrary does not appear, that all incidental steps necessary to confer general jurisdiction have been taken.

7.The presumption of jurisdiction of a court of general jurisdiction places upon the defendants the burden of producing evidence tending to show that the plaintiff can not institute suit because not registered as a partnership as required by P. L. Chapter 247.

8.A motion to set aside a verdict upon the ground that the liability of the defendant was not supported by the evidence, being like a motion for a directed verdict, raises the inquiry as to whether there was evidence taken in the light most favorable to the plaintiffs fairly and reasonably tending to support the verdict.

9.In consideration of a motion for a directed verdict or to set aside a verdict, contradictions and contradictory inferences and modifying evidence are for the trier and can not avail the defendants upon consideration of their motion.

10.When credit to a third person was denied by the plaintiffs who upon the order of one defendant thereafter made deliveries to the third party and charged the goods to a partnership in which the defendant was apparently a member and the purchases of said third person were thereafter from time to time paid for by such defendant, a verdict against the defendant can not be said to be without evidentiary support.

11.A quitclaim deed of all of a person's right and title in and to partnership property, both real and personal, is not inconsistent with the continued existence of the partnership interest of another person.

BOOK ACCOUNT by the Executors of L. D. Taft Estate, doing business as the Enosburg Grain Company, against Allen Wilder and R. L. Clark.Complaint was amended by including name of Eunice Clark as partydefendant.Trial by jury, November 17, 1938, Franklin Municipal Court, William K. Sullivan, Acting Judge.Verdict and judgment for the plaintiff.Exceptions by the defendants.The opinion states the case.

Judgment Affirmed.

Sylvester & Ready for defendants.

Keith Brown for plaintiffs.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

MOULTON

This cause was tried by jury in the Franklin Municipal Court.The plaintiffs are co-partners, and the three defendantsAllen 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, 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 and Trust Co., 111 Vt. 201, 14 A.2d 3, 6;Hayden, Admx. v. Caledonia Nat'l Bank, (decided at the present term of this court)post, p. 30.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 Est., 98 Vt. 251, 252, 127 A. 369;Leonard v. Willcox et al., 101 Vt. 195, 203, 142 A. 762;InRe 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 regard this particular statute, in Bishop and 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, (N. J.)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;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 Okla. 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...