Gelsi Monti v. J. W. Thorington

• Decision Date: 26 May 1924
• Citation: 124 A. 713,98 Vt. 22
• Parties: GELSI MONTI v. J. W. THORINGTON ET AL
• Court: Vermont Supreme Court

124 A. 713

98 Vt. 22

GELSI MONTI v. J. W. THORINGTON ET AL

Supreme Court of Vermont

May 26, 1924

May Term, 1924.

ACTION OF CONTRACT. Heard in Montpelier city court, Fred L. Laird Judge, on defendant's motion to abate the writ. Motion sustained. The plaintiff excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Gelsi Monti for the plaintiff.

Robert E. Susena for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

SLACK

This is an action of contract brought before the Montpelier city court. The facts that appear of record, material to the questions argued, are these: The writ was filed in court December 8, 1923. The return day was December 10, 1923. On December 8, the defendant, by his attorney, entered a general appearance, and the next day filed a motion predicated on G L. 1707, to abate the writ because it was issued without a recognizance by some person other than the plaintiff. No reply to the motion was filed. After hearing thereon, the motion was sustained, and judgment rendered that the writ abate, to which the plaintiff excepted.

It is now urged that the motion should have been denied, because the right to take advantage of the defect therein alleged was waived by the general appearance, because such defect could only be attacked by plea in abatement, and because no evidence was adduced to show that the recognizor was not a person other than the plaintiff. But the record does not show that these questions, or any of them, were raised in the court below, and we have repeatedly held that only questions there raised will be considered. In re Wells' Will, 95 Vt. 16, 113 A. 822; Coburn v. Swanton, 95 Vt. 320, 115 A. 153; Dyer v. Lalor, 94 Vt. 103, 111, 109 A. 30; State v. Donaluzzi, 94 Vt. 142, 109 A. 57; Nichols v. Central Vermont Ry. Co., 94 Vt. 14, 109 A. 905, 112 A. L. R. 333; Smith v. Nye & Munsell, 94 Vt. 201, 110 A. 12; Duprat et ux. v. Chesmore, 94 Vt. 218, 110 A. 305; Bonazzi v. Fortney, 94 Vt. 263, 110 A. 439; Williams Mfg. Co. et al. v. Ins. Company of North America, 93 Vt. 161, 172, 106 A. 657; Grapes v. Willoughby, 93 Vt. 458, 108 A. 421; Stevens v. Bowker, 93 Vt. 480, 108 A. 347; Porter Screen Co. v. Central Vermont Ry. Co., 92 Vt. 1, 102 A. 44.

We are bound to assume, in support of the ruling of the trial court, the contrary not appearing, that the motion was sustained because the allegation that the writ was issued without a recognizance by some person other than the plaintiff was found to be true. State v. Donaluzzi, supra. And, since the contrary does not appear, we are bound, too, to assume that such finding was made on proper proof, as resort cannot be had to matters dehors the record to show otherwise.

We find the fact to be that the track area was, prior to any action on the part of the city or its contractor Ricci, out of repair; and that it did not then and does not now, conform to the wrought grade of the streets in question. So far as the company's obligation under the franchise agreement to remedy these defects is concerned, it is unaffected by what the company complains of. Then, too, if the city has invaded the rights of the company in the respect complained of, it is a matter of purely private concern and neither excuses the latter in its refusal to discharge its public duties nor justifies it in allowing the track area to become an obstruction to the right of the public to the safe and convenient use of the streets in question.

It is contended that the type of rails prayed for will not be ordered because it is not suitable for the kind of paving used; that the...