George H. Hogle v. Henry Mott
| Decision Date | 01 January 1890 |
| Citation | 20 A. 276,62 Vt. 255 |
| Parties | GEORGE H. HOGLE v. HENRY MOTT |
| Court | Vermont Supreme Court |
JANUARY TERM, 1890.
Judgment affirmed.
C G. Austin, for the plaintiff.
Present ROYCE, Ch. J., TAFT, ROWELL and TYLER, JJ.
Audita querela is brought to set aside a justice judgment in a trustee suit. The defendant in that suit was a non-resident, and there was no personal service of the writ. The case was continued, and an order made that notice be given the defendant by the delivery of copies, as provided in R. L. 1402-1404. On the day appointed, the defendant not appearing, proof of notice in accordance with the order was duly made. The defendant was then defaulted and judgment was rendered against him and against the trustee.
It is claimed that R. L. 1402-1404 do not apply to justice courts. We think it is clear that they do. These sections are a revision of No. 48 of the acts of 1878. Until the passage of that act, the law was silent as to the manner in which personal notice of the pendency of a suit should be given to an absent defendant. The necessity for some enactment upon this subject was quite as apparent in the proceedings of justice courts as in those of the higher tribunals. The original statute applied to actions in "any court," and there is nothing in the language of the revision which indicates an intention to change the law in that respect. We fail to discover any substantial support for the claim that justice courts are not included. It is true that the papers are to issue under the hand "of the clerk of the court, or of a judge or justice thereof," and that so much of this clause as relates to the clerk can have no application to justice courts. But the part relating to the clerk is necessary to the convenient operation of the law in courts having a clerk, while the remainder of the clause is a complete provision for courts which have none. Indeed, the expression "a judge or justice thereof" must be held to include the justice court. No force can be given to the word "justice" but by this construction. There is no judicial officer known to our law as a "justice" except the justice of the peace. We could not adopt the construction contended for without considering that the Legislature, in referring to certain judicial officers, undertook to make a sufficient designation more unmistakable by adding a term properly applicable only to an officer it was intended to exclude. It would require positive and controlling language in other parts of the statute to bring us to such a conclusion.
Notice to a non-resident defendant in a justice suit in accordance with the requirements of these sections is therefore sufficient. That notice having been given here, only such further proceedings were needed to reach and hold the money in the hands of the trustee as would have been necessary if there had been personal service of the writ.
It is claimed, however, that by this proceeding the non-resident is deprived of his property without due process of law, and that under the fourteenth amendment to the Federal Constitution the statute authorizing the proceeding is nugatory. The view taken by counsel would require personal service of process in every case of attachment. It is evident that such a requirement would effectually deprive a State of its jurisdiction over the property of...
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