Holden & Martin Lumber Co. v. Stuart, 1110

• Decision Date: 05 October 1954
• Docket Number: No. 1110,1110
• Citation: 118 Vt. 286,108 A.2d 387
• Court: Vermont Supreme Court
• Parties: HOLDEN & MARTIN LUMBER CO. v. James W. STUART & Tom Thumb Snack Shop, Inc., Trustee.

Page 387

108 A.2d 387

118 Vt. 286

HOLDEN & MARTIN LUMBER CO. v. James W. STUART & Tom Thumb Snack Shop, Inc., Trustee.

No. 1110.

Supreme Court of Vermont.

Oct. 5, 1954.

Osmer C. Fitts, Paul N. Olson, James A. C. Stillman, Brattleboro, for plaintiff.

Edward A. John, John S. Burgess, Brattleboro, for defendants.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CHASE, JJ. ADAMS, Justice.

This cause is before this Court on exceptions allowed the plaintiff to an order of the Windham County Court wherein it granted a motion of the trustee in bankruptcy of the defendant to dismiss the writ and process for lack of jurisdiction. The grounds of the motion were non-service on the defendant and also that the writ was dated May 6, 1950, and it was not entered in court until April 23, 1953, contrary to sections 1547 and 1548, V.S.1947 as appears on the face of the records in the cause. The latter ground is the only one relied upon here.

After the motion to dismiss was filed, the plaintiff filed an affidavit of an attorney that was dated November 23, 1953. It set forth in substance that after service of the writ on the trustee in this cause he, the affiant, was consulted by the defendant about certain claims against him growing out of the Tom Thumb Snack Shop job and a claim of the defendant against the Snack Shop; that at about that time he, the affiant, received from the defendant or from the attorney for the Snack Shop the original writ in the instant case showing service on the Snack Shop as trustee of the defendant and a copy left with the trustee for a non-resident defendant; that on or about the day before the time expired for entering the writ, he had a telephone conversation with one of the attorneys for the plaintiff and advised him that he, the affiant, would honor the writ and would not question the fact that it was not entered on time; that he later informed the defendant of this agreement and that he agreed that the affiant had taken the correct procedure and that the original writ remained in the files of the affiant until on or about April 20, 1953, when one of the attorneys for the plaintiff requested that it be returned to him.

It appears from the files, docket entries and bill of exceptions that the defendant was adjudged a bankrupt on February 6, 1953, and his bankruptcy was suggested on April 23, the date the writ was entered in court. On November 13, the trustee in bankruptcy entered a special appearance by his attorney and the motion to dismiss was filed on November 16. The affidavit heretofore referred to was filed on November 23. A hearing was had on the motion to dismiss on November 24. It does not appear that any evidence was taken. No findings of fact were made and on December 16, the court made the following order,--'Motion of Abraham S. Karff, Trustee to dismiss is granted. Cause dismissed. Ex. to plff.'

V.S.1947, § 1547 provides that any writ or process returnable before the supreme or county courts shall contain the following direction to the officer,--"Fail not but service and return make within twenty-one days from date hereof."

Section 1548 reads as follows,--'Return. The party suing out such process shall cause the same to be entered and docketed in the county clerk's office on or before the expiration of such twenty-one days, or the process shall abate on motion.'

Failure to return process as the law directs vitiates all previous acts thereunder. Cuthbertson v. Ritchie, 99 Vt. 50, 54, 130 A. 756, and cases cited. Annotation 93 A.L.R. 749. It is usually said in such cases that the officer who fails to return his writ becomes a trespasser ab initio, but it is more accurate to say that a return is necessary to make the attachment lawful ab initio. The rights of the officer are wholly contingent upon a proper return of the process, without which he is left in all matters, both offense and defense, as though he had acted without process. Mitchell v. Pierce, 8l Vt. 514, 515-516, 86 A. 748. In Cuthbertson v. Ritchie, supra, the original writ was served by attaching property and then served on the defendant. It was then lost and not returned into court. After the time for entering it had expired, the plaintiff by motion attempted to substitute a copy and have it entered in place of the original. This Court in denying the motion said, 99 Vt. at page 55, 130 A. at page 758, 'Had the original process been entered out of time, no course would have been open to the court but to abate it on motion for that purpose (G.L. § 1728) [now V.S.1947, § 1548], and clearly plaintiff...