Hayden v. Caledonia National Bank
| Decision Date | 13 May 1941 |
| Parties | MILDRED HAYDEN, ADMX. v. CALEDONIA NATIONAL BANK |
| Court | Vermont Supreme Court |
February Term, 1941.
On Motion for Reargument, May Term, 1941. Opinion on Motion for Reargument filed June 27, 1941.
Process Against National Banks.---1. No Amendment of Void Process.---2. No Attachment Against National Bank, 12 U.S.C A. 91.---3. Service Not Cure Void Process.---4. Jurisdiction Through Proper Process.---5. Process Conforming to P. L 9111, Form 2, Violates 12 U.S.C. A. 91.---6. Dismissal On Ground of Prior Proceeding Not Adjudication of Validity Thereof.---7. Jurisdiction Not Conferred By Extraneous Matters.---8. Prohibited Jurisdiction Questioned Any Time.
1. If a court is without process it is without jurisdiction to allow an amendment of process.
2. Process in the form of a writ of attachment may not issue against a national banking association before final judgment 12 U.S.C. A. 91.
3. Where an attachment is prohibited process issued as a writ of attachment is void even though served only as a writ of summons.
4. Process used to bring the parties and their case before a court must be such as the law can recognize.
5. Process against a national bank in the form of a writ of attachment conforming to P. L. 9111, form 2, is in violation of 12 U.S.C. A. 91 prohibiting the issue of an attachment against a national banking association before final judgment and is without authority and void.
6. That subsequent to the bringing of the case at bar another like suit was commenced which upon motion of the defendant was dismissed on the ground of the pendency of the case at bar is not a determination that the case at bar was within the court's jurisdiction.
7. Jurisdiction can not be conferred by the ruling of the court in some other case.
8. The question of jurisdiction of the parties and matter acquired by process prohibited by law may be raised at any time.
ACTION OF CONTRACT brought by Earle C. Hayden against the defendant who appeared specially and moved to dismiss on the ground the process issued as a writ of attachment in violation of 12 U.S.C. A. /n 91. During the pendency hereof another action was brought by the plaintiff against the defendant by writ of summons which upon defendant's motion to dismiss on the ground on pendency of this cause of action was dismissed. Heard on defendant's motion, September Term, 1940 Washington County Court, Hughes, J., presiding. Motion denied, exceptions to defendant. Upon plaintiff's death the administratrix of his estate was given leave to enter and prosecute. Cause passed to the Supreme Court pursuant to P. L. 2072. After opinion was delivered plaintiff filed motion for leave to reargue. The opinion states the case.
Judgment reversed. The plaintiff's writ is dismissed with costs.
Arthur L. Graves for the defendant.
Norbert J. Towne and Finn & Monti for the plaintiff.
Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This is an action of contract brought by Earle C. Hayden against the Caledonia National Bank to Washington County Court. The defendant appeared specifically and, after the time for dilatory pleading had expired, filed a motion to dismiss. This motion was denied and the plaintiff's motion to amend the writ was granted. The case is here upon the defendant's exceptions to the action of the court in denying its motion to dismiss.
Insofar as material here the United States Code, 12 U.S.C. A. § 91, provides that: "* * * and no attachment * * * shall be issued against such association or its property before final judgment in any suit, action or proceeding, in any State, county, or municipal court."
No question is made but that the word "association" as used in this statute includes the defendant National Bank.
The writ by which this suit was instituted was in the form prescribed by statute for writs of attachment but was served as a writ of summons.
The defendant's motion to dismiss was based upon the contention that the writ issued as an attachment and was therefore contrary to the provisions of the above quoted statute and that for this reason the court was without jurisdiction to proceed to a trial of the case.
Because of the provisions of P. S. 2081 (now P. L. 2170), prohibiting arrest in actions of contract except as otherwise provided, the question here is similar to that considered by this Court in the case of Roy v. Phelps, 83 Vt. 174, 75 A. 13.
That was an action on the case for an alleged false warranty in the sale of a horse. "The writ issued as a capias and was served by arresting the defendant's body." The declaration contained four counts; the second and third essentially like those in Caldbeck v. Simanton, 82 Vt. 69, 71 A. 881, no scienter being alleged; the first and fourth contained an averment of the scienter. The defendant moved to dismiss the action on the ground that, as the second and third counts were merely counts on contract, though tort in form, the action was improperly commenced by arrest and the court was consequently without jurisdiction. The motion was sustained pro forma and the plaintiff brought the case here upon exceptions.
It was argued that that case was distinguishable from the Caldbeck case because the first and fourth counts were of such a nature as to warrant the issuance of a capias and the arrest of the body, and that liberty to amend by dropping the objectionable counts could be granted and the case proceeded with upon the others. In reply to this argument this Court stated: The Court then proceeded to discuss Chadwick v. Batchelder, 46 Vt. 724; French v. Holt, 57 Vt. 187; and Heath and Heath v. Robinson, 75 Vt. 133, 53 A. 995.
In another view Roy v. Phelps was said to resemble Hill v. Whitney et al. & Tr., 16 Vt. 461, and Ferris v. Ferris and Trustee, 25 Vt. 100, which were actions improperly brought by trustee process. It was found that each should be discussed rather than proceed against the principal defendant after the trustee had been discharged and the process amended.
It was held in Roy v. Phelps, supra, 177, that the case was commenced under a process which issued without authority of law and was so defective as to be absolutely void. This holding is placed upon authority of Pike Bros. v. McMullin, 66 Vt. 121, 28 A. 876; Aiken v. Richardson, 15 Vt. 500; Adams v. Whitcomb, 46 Vt. 708; and Caldbeck v. Simanton, supra. The court being without process it was without jurisdiction. It had no power to allow an amendment for that in itself would be an exercise of jurisdiction. Roy v. Phelps, supra, 177, 178.
From the foregoing authorities it follows that the writ in the case at bar was issued without authority of law and was in violation of the federal statute hereinbefore quoted. The fault exists in the process itself and therefore the fact that it was not serviced as an attachment can not save the action. In Roy v. Phelps, supra, 178, 179, it is shown that the decisions in Langdon v. Dyer, 13 Vt. 273, and in Bowman v. Stowell et al., 21 Vt. 309, cited by the plaintiff, resulted from the wording of the controlling statute as it then was. This statute has now been changed. It is true that the court has general jurisdiction to hear and determine this case but in order for it to exercise this power it is necessary that the process used to bring the parties and their case before it must be such as the law can recognize. Howe v. Lisbon Savings Bank and Trust Company et al., 111 Vt. 201, 14 A.2d 3; Roy v. Phelps, supra; Ford v. Smead, 109 Vt. 129, 130, 194 A. 369; Pacific National Bank v. Mixter, 124 U.S. 721, 8 S.Ct. 944, 29 L.Ed. 221.
The plaintiff relies upon the case Pacific National Bank v. Mixter, supra, in support of his contention that the writ in question here was sufficient to give the court jurisdiction. An examination of that case shows the following facts:
Mixter and several others were each creditors of the Pacific National Bank of Boston. Each brought a suit against the bank in the Circuit Court of the United States for the District of Massachusetts. In each of these suits attachments were made before final judgment. These attachments were released by the bank executing a bond to each of the plaintiffs with one Coleman and one Shepard as sureties in accordance with the provisions of Massachusetts law. This being done the bonds stood in place of the attachments as security to the plaintiffs. Certain assets of the bank were turned over to the sureties on the bonds to secure them against the liability they had assumed.
By statute in Massachusetts when these suits were brought civil actions were begun by original writ which might be framed either to attach the goods or estate of the defendant, and for want thereof to take his body; or it might be an original summons with or without an order to attach the goods or estate. Mass. Pub. Stat. 1882, c. 161, § 13, 14.
Soon after the attachments above mentioned the bank went into the hands of a receiver who appeared for the bank in these cases, filed motions to discharge the attachments and to dismiss the actions. These motions were denied and each case proceeded to a judgment for the plaintiff.
The receiver brought a bill in equity in the Circuit Court against the several attaching creditors and the sureties on the bonds given to dissolve the attachments, the object of which was to reduce to his possession the securities which were...
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