Leon H. Anderson v. Delphis Souliere

• Decision Date: 07 October 1930
• Citation: 151 A. 509,103 Vt. 10
• Parties: LEON H. ANDERSON v. DELPHIS SOULIERE
• Court: Vermont Supreme Court

151 A. 509

103 Vt. 10

LEON H. ANDERSON v. DELPHIS SOULIERE

Supreme Court of Vermont

October 7, 1930

May Term, 1930.

Process---Necessity of Signing by Authorized Officials---Designation of Officers To Sign Writs---Signing of Writs Returnable in Municipal Court---G. L. 1704---"Justice of the County"---Statutes----G. L. 1644.

1. Process by which suit is instituted must bear official signature of someone authorized to issue it, otherwise it is fatally defective, and will be dismissed on motion.

2. Legislature has power to say what officers shall be authorized to sign writs and other process.

3. Provision of G. L. 1704 that writs returnable in municipal court may be signed by certain specified officers means that writs must be so signed.

4. "Justice of the county," one of the officials authorized to sign writs returnable to municipal court, is justice of the peace for county wherein writ is returnable.

5. Statutes which are part of the same act, taking effect at same time, should be harmonized if it can be done reasonably.

6. G L. 1644, providing that writs returnable to municipal or city court may be signed by a "justice of the peace," means a justice of the county, the same as one referred to in G. L. 1704.

ACTION OF TORT returnable to municipal court of Orleans County signed by a justice of the peace of Caledonia County. Defendant moved to dismiss process. Hearing before Frank C Williams, Judge of Orleans County municipal court. Defendant's motion sustained, and process dismissed solely on ground that writ and recognizance were signed by a justice of the peace of Caledonia County. The plaintiff excepted. The opinion states the case.

Affirmed.

S.E. Darling, Jr., for the plaintiff.

Lee E. Emerson for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM, Supr. J.

OPINION

POWERS

The plaintiff sued the defendant in an action of tort returnable to the municipal court of Orleans County. The writ was signed by a justice of the peace of Caledonia County. The court below dismissed the suit for that reason, and the plaintiff excepted.

Process, by which a suit is instituted, must bear the official signature of someone authorized to issue the same. Otherwise, it is fatally defective, and, on motion, will be dismissed. Andrus v. Carroll, 35 Vt. 102. It is for the Legislature to say what officers shall be authorized to sign writs and other process, and our Legislature has said in G. L. 1704 that writs returnable to a municipal court may be signed by certain specified officers, including a justice of the county. This means that such writs must be so signed, and the justice referred to is a justice of the peace within and for the county wherein the writ is returnable.

The plaintiff contends that the provision that such writs might be signed by a justice "of the county" was not the work of the General Assembly, but of the commissioners who edited and superintended the publication of the General Laws; who, he says, "tacked on" to G L. 1704 the words above quoted. He calls attention to G. L. 1644, wherein the provision is that writs...