Kessler v. Emmell., 89.

• Decision Date: 07 January 1947
• Docket Number: No. 89.,89.
• Citation: 50 A.2d 604
• Parties: KESSLER v. EMMELL.
• Court: Vermont Supreme Court

50 A.2d 604

KESSLER

v.EMMELL.

No. 89.

Supreme Court of Vermont.

Jan. 7, 1947.

Exceptions from Addison County Court; Blackmer, Judge.

Action by David L. Kessler against Donald Allen Emmell to recover damages resulting from an automobile accident. To review a judgment for defendant, the plaintiff brings exceptions.

Judgment affirmed.

Philip M. M. Phelps, of Fair Haven, and Wayne C. Bosworth, of Middlebury, as amicus curiae for Leroy C. Russell, clerk.

Clayton H. Kinney, of Rutland, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

BUTTLES, Justice.

This action was brought to recover damages resulting from an automobile accident which is conceded to have occurred on December 11, 1942. Hearings were held by the court on motions made by the parties, by the clerk of the court, and by the officer who served the writ, directed to alleged errors and irregularities in the date of the writ and in the date of service an shown by the return thereon. It is not necessary to consider each of these motions.

After the other motions had been disposed of the defendant moved for judgment, and the court adjudged that the plaintiff's cause of action was barred by the statute of limitations, and gave judgment for the defendant to recover his costs. The determinative question before us on the plaintiff's exceptions is whether the cause of action is so barred.

From concessions of the parties and from findings made by the court in ruling on the motions referred to these facts appear. The writ in this case was presented by a deputy sheriff to the clerk of Addison County Court, hereinafter termed the clerk, on Dec. 13, 1945, and was signed by him on that date. It was also served by the officer, returned and entered in the office of the clerk of Addison County Court on the same date. When first presented to the Addison County clerk the writ bore date Dec. 8, 1945, and also bore the signature of Robert J. Rousseau, who is the clerk of Chittenden County Court. This signature the Addition County clerk struck out and affixed his own signature as clerk in lieu thereof. At the same time he made changes in the date line of the writ so as to indicate that it had been dated at Middlebury in the County of Addison instead of at Burlington in the County of Chittenden, but the date, Dec. 8th, was not then changed. Later, after the writ had been entered in the clerk's office, an unauthorized change in the date of the writ to read Dec. 13th was mistakenly made. Subsequently, on motion of the clerk, the court ordered that the date Dec. 13th be struck out and that the date Dec. 8th be reinstated.

When was this action commenced? The rule in this State is that the service of the writ is the commencement of the suit for the recovery of damages and for most purposes, except for interrupting the running of the statute of limitations. Until its service no jurisdiction is acquired over the defendant. Until then the defendant is not called upon to reply, and when demand must be made to perfect a right of action it is sufficient if it precede the service of the writ. Stanley v. Turner, 68 Vt. 315, 316, 35 A. 321; Hall v. Peck, 10 Vt. 474, 479; McDaniels v. Reed, 17 Vt. 674, 679; People's Trust Co. of St. Albans v. Billado, 108 Vt. 27, 29, 182 A. 206; Kirby v. Jackson, 42 Vt. 552, 554. But the rule is settled...