First Nat. Bank v. Post
| Decision Date | 01 December 1892 |
| Citation | 25 A. 1093,65 Vt. 222 |
| Parties | FIRST NATIONAL BANK OF PLATTSBURG v. NATHAN N. POST |
| Court | Vermont Supreme Court |
GENERAL TERM, 1892
Debt on two recognizances. Pleas, the general issue and offset. Trial by jury at the September term, 1891, Franklin county TYLER, J., presiding. The court directed a verdict for the defendant. The plaintiff excepts.
Judgment reversed and cause remanded.
E.A Sowles for the plaintiff.
The deposition of Alfred G. Safford was admitted against the exception of the plaintiff, on the objection that it was within the rule of the court, "No deposition taken ex parte without the State shall be used on the trial of any case unless taken at least fifteen days prior to the first day of the term for which it was taken to be used." The deposition was taken out of the State without the appearance of the plaintiff, only eleven days prior to the first day of the term for which it was taken to be used. The rule is a rule of the trial court, and might have been waived by that court in its discretion, and the deposition admitted notwithstanding this objection. The court did not exercise its discretion in this respect, but held that inasmuch as the plaintiff was lawfully notified of the taking of the deposition, it was not a deposition taken ex parte within the rule. This was error. R. L. 1,028 requires that depositions taken without notice to the adverse party shall be filed with the clerk of the court at least twenty days prior to the first day of the term for which they were taken to be used, to render them legally admissible. It is not to be presumed that the court undertook by a rule to repeal or override a positive statute. Hence the rule could not have been intended to apply to depositions taken ex parte, because taken without notice to the adverse party. It must have application to depositions taken with notice, but without the presence of the adverse party. This gives the proper meaning to ex parte. R. L. 1,027 provides that such depositions, or depositions taken on notice, may be taken at a reasonable time after notice. This requires the court, in any instance, to pass upon what is a reasonable time. It leaves uncertain what the trial court may hold to be a reasonable time, under the circumstances attending the taking of every deposition. To obviate this necessity and to remove the uncertainty, so far as possible, in regard to depositions taken without the State, and near to the term at which they are to be used, the rule was adopted.
II. The county court held that the plaintiff could not recover on the recognizances declared on, because they were taken in suits against the plaintiff in which the court obtained no jurisdiction of the plaintiff. The court to which the suits were returnable, in which the recognizances were taken, had jurisdiction of the subject matter of the suits. But the suits were brought against the plaintiff, a non-resident in this State, by attaching a debt due to it in this State. This was the only service upon the plaintiff. This service is prohibited by the act of Congress under which national banks are organized. Safford v. National Bank of Plattsburg and Trustee, 61 Vt. 373, 17 A. 748. Hence it is contended that the court had no jurisdiction to take the recognizances, that they were not enforceable against the defendant, and that the plaintiff's only remedy for the costs recovered in those suits is against Safford, the plaintiff therein. The county court held in accordance with this contention. This was also error. R. L. 847 requires the taking of recognizances, and R. L. 1,170 authorizes the rendition of judgments for costs, as was done in favor of the plaintiff, although the court acquired no jurisdiction. The recognizances were taken to secure to the plaintiff--the defendant in those suits--the payment of any judgments in its favor which might be rendered for costs. The court had jurisdiction both to take recognizances and to render the judgments for costs; and the recognizances were valid and enforceable against the defendant. Such was the holding in Colony v. Maeck, 8 Vt. 114. State Treasurer v. Wells, 27 Vt. 276, relied upon by the defendant, is not in point. The recognizance in that suit was not such as the court had authority to take, under the circumstances of that case.
III. The plaintiff came into this State, and brought this suit to enforce these recognizances. By this act it submitted itself to the jurisdiction of the court, and gave it jurisdiction to award the defendant the right to declare against it in setoff. The claim of the defendant was of such a nature that assumpsit could be maintained upon it. It rested upon the promise of...
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