Howe v. Lisbon Savings Bank & Trust Co.

• Decision Date: 07 May 1940
• Citation: 14 A.2d 3,111 Vt. 201
• Parties: ELIZABETH HOWE v. LISBON SAVINGS BANK & TRUST CO. ET AL
• Court: Vermont Supreme Court

14 A.2d 3

111 Vt. 201

ELIZABETH HOWE v. LISBON SAVINGS BANK & TRUST CO. ET AL

Supreme Court of Vermont

May 7, 1940

February Term, 1940.

On Motion for Reargument, May Term, 1940.

Opinion on Motion for Reargument filed July 2, 1940.

Process.---1. Jurisdiction Defined.---2. General Jurisdiction.---3. No Waiver or Consent to Jurisdiction.---4. No Jurisdiction on Own Motion.---5. Matters Brought to Court by Process.---6. Authority of Court Invoked by Process.---7. Voidable Process Valid Until Attacked.---8. Amendment Allowable to Irregular Process.---9. Classes of Void Process.---10. Voidable Process.---11. No Waiver of Void Prohibited Process.---12. Waiver of Void Process if Not Prohibited---13. Omission of Direction for Appearance, P. L. 1491, 1347 IV, 1489 and 9111.---14. Sufficient Direction for Appearance, P. L 9111.---15. Amendment of Process.---16. General Appearance.---17. Special Appearance Without Dilatory Matters.---18. Special Appearance.---19. Order of Dilatory Pleas.---20. Plea to the Jurisdiction.---21. Motion to Dismiss on Abatable Matter.---22. Motion to Abate for Lack of Service.---23. Repleading Dilatory Matters.

1. Jurisdiction is "the legal power, right or authority to hear or determine a cause or causes considered either in general or in reference to a particular matter; power to exercise judicial authority."

2. "General jurisdiction" or jurisdiction over the subject matter is conferred by law and can be derived from no other source.

3. Neither waiver nor consent can confer jurisdiction of the subject matter in any court where it is not given by law.

4. A court can not exercise its general jurisdiction to try and determine a cause of its own motion.

5. The parties to a cause and their case must be brought before a court by the use of process which empowers a court to exercise its authority.

6. The authority of a court must be invoked by process or some legal substitute therefor.

7. Voidable process includes process with a defect of such a nature that it may be amended and is valid until attacked.

8. An amendment may be allowed to process which although irregular is sufficient to give jurisdiction.

9. Void process is that which issues in violation of law prohibiting it or that which fails to comply substantially with statutory requirements.

10. Process which is defective because not in the exact form required by statute but which is in substantial compliance is voidable only and may be amended.

11. Process prohibited by law is void and the defect can not be cured by waiver, consent or agreement.

12. Process, though not prohibited by law, is void if not in substantial compliance with statutory requirements but the defect may be waived to enable the court to exercise its jurisdiction.

13. A writ purporting to issue from Chittenden County by authority of the State wherein the plaintiff, a resident thereof sought to recover on a complaint therein contained $50,000 damages, directed to any sheriff or constable in the state returnable twenty-one days from date, directing the officer to notify the defendants to cause their appearance to be entered with the clerk of the court, dated at Burlington signed by the clerk and containing proper recognizance properly issued by authority of the State and was returnable to Chittenden County Court at Burlington, the only state court in the county having jurisdiction in that ad damnum---P. L. 1491, 1374 IV, 1489, 9111.

14. Process which shows with reasonable certainty that the action was pending in a definite court that had jurisdiction of the subject matter and was authorized by law to issue the process contains sufficient notice so that the same may be amended by adding a direction to the defendants to enter their appearance in that court, P. L. 9111.

15. If a court has jurisdiction of the subject matter and the process it is error to dismiss a matter returnable to it by reason of a defect in the process which is amendable.

16. Defendants entering a general appearance to process which is voidable are before the court.

17. Defendants who although not served with process appear specially and file notice that they appear for the purpose only of moving to dismiss for want of service waive their rights to file such motion unless the same is done within the time allowed for dilatory pleadings.

18. Where several defendants enter a special appearance but file no dilatory plea within the time limited therefor, they, with other defendants who entered a special appearance without more, remain before the court upon their respective special appearances.

19. Dilatory pleas must be advanced in the following order:

I. To the jurisdiction of the court.

II. To the disability of the person,

1. of the plaintiff, and

2. of the defendant.

III. To the count or declaration.

IV. To the writ, viz.,

1. To the form of it, and

2. To the action of it.

20. Although all dilatory pleas are sometimes called "jurisdictional" because the defendant, if successful, shows the court to be without authority to proceed as to him, "pleas to the jurisdiction" strictly include only those extending to the jurisdiction of the court.

21. A motion to dismiss because a writ does not mention the court to which it is returnable or the place of appearance as required by law is a motion to dismiss upon matter abatable because the defects are apparent on the face of the writ and come within class IV of dilatory pleas.

22. A plea or motion raising a question as to lack of proper service falls within class IV of dilatory pleas or motions.

23. After a dilatory plea or motion has been overruled, no second plea or motion of the same kind or class can be admitted.

ACTION by Elizabeth Howe against Lisbon Savings Bank & Trust Co., Lisbon Manufacturing Company, Lisbon Company, Inc., Caledonia Timber Corporation, Fred C. Brown, Carl S. Hoskins, Ernest H. Hallett, William P. Long, William H. McCarten, Harry A. Ronan, Jonathan Piper, and Phillip G. Willard, defendants, and Greeley A. Brown, Vermont-Peoples National Bank, Lee F. Frost, Mary Frost, Michael P. Ronan and Caledonia Timber Corporation, as Trustees. Various of the defendants and trustees entered general appearance, special appearance with notice or special appearance. Motion to dismiss was filed by several defendants. Heard on defendant's motions, March Term, 1939, Chittenden County Court, Blackmer, J., presiding. Cause dismissed. The opinion states the case. Reversed and remanded. Motion for reargument denied.

Judgment reversed and cause remanded.

Joseph A. McNamara, John W. Redmond of counsel, for the plaintiff.

Guy M. Page and M. G. Leary for defendants Lisbon Savings Bank & Trust Company, Lisbon Manufacturing Company, Fred C. Brown, Carl S. Hoskins, Ernest H. Hallet, William P. Long, William H. McCarten, Harry A. Ronan, Jonathan Piper and Phillip G. Willard.

Fenton, Wing & Morse for defendant and trustee Caledonia Timber Corporation.

Porter, Witters & Longmoore for trustee Michael P. Ronan.

Neil D. Clawson for trustee Greeley A. Brown.

Present: SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ. and SHIELDS, SUPR. J.

OPINION

BUTTLES

This is an action brought by the plaintiff, Elizabeth Howe, of Burlington, Vermont, against the defendants, Lisbon Savings Bank and Trust Company, Lisbon Manufacturing Company, Lisbon Company, Inc., all New Hampshire corporations, Caledonia Timber Corporation, a Vermont corporation, doing business at St. Johnsbury, Vermont, Fred C. Brown, of Brattleboro, Vermont, Carl S. Hoskins, Ernest H. Hallett and William P. Long, of Lisbon, New Hampshire, William H. McCarten, of Lancaster, New Hampshire, Harry A. Ronan, of Plymouth, New Hampshire, Jonathan Piper, of Concord, New Hampshire, and Phillip G. Willard, of Boston, Massachusetts. The writ also names as trustees in said action, the Vermont-Peoples National Bank, of Brattleboro, Vermont, a corporation by and under the laws of the United States, Greeley A. Brown, of Wilmington, Vermont, Michael P. Ronan, of Lyndon, Vermont, Lee F. Frost and Mary Frost, of Ryegate, Vermont, and Caledonia Timber Corporation, a Vermont Corporation, doing business at St. Johnsbury, Vermont.

The officer's return shows that service was made on the Lisbon Savings Bank and Trust Company, Lisbon Manufacturing Company, Lisbon Company, Inc., Caledonia Timber Corporation and Fred C. Brown, by attaching property. No service was made on defendants Hoskins, Hallett, Long, McCarten, Piper and Willard. Service was made on Harry A. Ronan, defendant, by leaving a copy with Michael P. Ronan and Caledonia Timber Corporation, his trustees. Greeley A. Brown, Vermont-Peoples National Bank, Lee F. Frost, Mary Frost, Michael P. Ronan and Caledonia Timber Corporation, trustees, were served by delivering them copies, all as appears by the record.

The writ in question here follows the form prescribed by P. L. 9111 (Forms 2 and 23), except that there are omitted therefrom the following words "and also notify them to appear before the Chittenden County Court at Burlington, within and for the County of Chittenden." After partial service as above stated, the writ was returned, entered and docketed in Chittenden County Court, January 11, 1939.

On February 2, 1939, the following appearances were entered:

Defendant Caledonia Timber Corporation entered a general appearance by its attorneys, Fenton, Wing & Morse, and said Caledonia Timber Corporation, as trustee, entered a general appearance by its said attorneys.

M. G. Leary and Guy M. Page addressed a letter to M C. Buell, clerk of Chittenden County Court, in which they entered a special appearance in the following language: "Please enter our appearances specially for Lisbon Manufacturing Company, a former corporation,...