Noyes v. Vill. of Hyde Park

• Citation: 73 Vt. 261,50 A. 1068
• Parties: NOYES et al. v. VILLAGE OF HYDE PARK et al.
• Decision Date: 22 July 1901
• Court: United States State Supreme Court of Vermont

50 A. 1068

73 Vt. 261

NOYES et al.

v. VILLAGE OF HYDE PARK et al.

Supreme Court of Vermont. Lamoille.

July 22, 1901.

Quo warranto by Charles H. Noyes and another, administrators of the estate of Jane E. Noyes, against the village of Hyde Park and others. Dismissed.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, and WATSON, JJ.

W. L. Burnap, for complainants.

G. M. Powers and R. W. Hulburd, for defendants.

ROWELL, J. This is a complaint for a writ of quo warranto, preferred by Jane E. Noyes, and prosecuted by her until her death, and since by the administrators of her estate. The land and buildings of the intestate, a mile from the physical village of Hyde Park, and parcel of a large farm, were, without her knowledge and consent and against her will, Included within the bounds of the village when they were established by the selectmen for the purpose of incorporating the village. The right of the village to tax said property is denied on two grounds: (1) That the village has no corporate existence, for that the statute under which it claims such existence is unconstitutional, in that it undertakes to delegate legislative power to selectmen; and (2) for that in no event did the statute authorize the inclusion of said property within the corporate limits, as it is not reasonably near the village, nor needed for municipal purposes, nor for any other purposes except farming, for which it has been and is used. The village, its trustees and collector, are joined as defendants, and a judgment of ouster is sought against them all. The defendants move to dismiss for misjoinder of defendants, for want of. sufficient interest in the intestate in the matter of the complaint and the judgment sought, and for that the cause of action does not survive. But advantage cannot be taken of misjoinder and want of interest by a motion to dismiss, for such a motion is in the nature of a plea in abatement, and is not used for testing the right of recovery, but only for impeaching the correctness of the proceedings for the purpose of abating the action. Defects apparent on the face of the declaration or what is answerable thereto, independent of any reference to the writ or what is answerable thereto, or to the service thereof, are notpleadable in abatement, nor the subject of a motion to dismiss. The proper way of taking advantage of such defects is by demurrer or motion in arrest. Alexander v. School Dist, 62 Vt. 273, 19 Atl. 995; Marsh v. Graves, 68 Vt. 400, 35 Atl. 335. And, besides, this part of the motion is out of time, as it was filed after answer and testimony taken, the questions not being jurisdictional. But the question of survival is matter of abatement, and a motion to dismiss is apt to impeach the proceedings for the purpose of abating the action on account of the death of the complainant. The question of survival, therefore, stands for consideration. The statute provides that...