Perley R. Russell v. Shirley Lund

Decision Date03 October 1944
Citation39 A.2d 337,114 Vt. 16
PartiesPERLEY R. RUSSELL v. SHIRLEY LUND
CourtVermont Supreme Court

May Term, 1944.

Replevin. Voidable Process.

1. When an assistant judge of a county court does an act in his county which should be done by him as a justice of the peace and he signs as assistant judge of the county court, it will be considered, he being ex officio a justice of the peace that he acts as a justice of the peace in so doing.

2. Voidable process includes all defective process where the defect is of such nature that it is capable of being amended, and is valid until attacked; an amendment is allowable where the process, although irregular, is sufficient to give jurisdiction---where there is anything to amend by; that is, where it can be clearly determined from the process itself what was intended.

3. Failure to insert in a writ that it is directed to any Sheriff or Constable in the State is a defect of form only and a motion to amend by inserting those words should be granted.

4. Although statutory forms may be resorted to in the construction of doubtful statutes, they do not control where the statute is unambiguous.

5. Construction of a statute which will lead to an absurd consequence must be avoided if possible.

6. No recognizance for costs is required in a replevin writ.

ACTION OF REPLEVIN. The defendant appeared specially and moved to dismiss. The motion was granted and the action dismissed. Essex Municipal Court, E. J. Nelson, J.

Judgment reversed, and cause remanded.

Harry B. Amey for the plaintiff.

Arthur L. Graves for the defendant.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION
SHERBURNE

This is an action of replevin brought under the provisions of P. L. 1910. The writ was served by the sheriff, and he certified in his return that the value of the property replevied was sixty dollars, and returned the writ to the Essex Municipal Court. The defendant appeared specially and seasonably moved to dismiss upon the grounds hereinafter mentioned. A. hearing was held upon this motion 14 days after the return date, and at a much later date the motion to dismiss was granted, and judgment was entered dismissing the action, ordering the return of the property and awarding damages and costs to the defendant, to all which the plaintiff excepted.

We will take up the grounds of the motion to dismiss in the order briefed by the defendant. The writ was signed by Victor O. Lucas as assistant judge of Essex County Court, and it is objected that it was not issued by a justice of the peace or out of a municipal court as required by P. L. 1919, and that it was not signed as provided by that section. P. L. 1919 provides that, in actions of replevin commenced under the provisions of P. L. 1910, the writ shall be issued by a justice of the peace or out of a municipal court; and, if it appears from the certificate of the officer in his return that the value of the property replevied does not exceed twenty dollars, such writ shall be returned to the court that issued it; but if the value of the property so certified in such a writ issued by a justice of the peace exceeds twenty dollars, such writ shall be returned to a municipal court, provided there is such a court within the county, otherwise to the county court; but if the value of the property so certified in such a writ issued by a justice or out of a municipal court exceeds one hundred dollars, such writ shall be returned to the county court. P. L. 1920 provides that such writ shall state the time when the defendant may be required to appear before the court that issued it and also the time the defendant may be required to appear before the municipal court, and also the time within which he may be required to appear before the county court, and that he shall appear before the court to which the writ is returnable as provided in P. L. 1919 and at the time stated in respect to that particular court. The form of the writ prescribed by statute (P. L. 9111, Form 12) commands the officer to make return of the writ to, and summon the defendant to appear before, such court as shall be determined by the value of the property as shown by his certificate, as follows: (1) If the value of the property exceeds one hundred dollars, or if the value of the property exceeds twenty dollars and there is not a municipal or city court within the county, the county court. (2) If the value of the property exceeds twenty dollars and does not exceed one hundred dollars, the municipal or city court, provided there is such a court in the county. (3) If the value of the property does not exceed twenty dollars, the justice or the municipal or city court that issued the writ. The writ in the instant case does not contain the direction that appears in sub-division 3 of the statutory form.

The foregoing ground of the motion presents a situation much like that in Middlebury College v. Cheney, 1 Vt. 336, 350. There an acknowledgment to a deed was taken before Royal Tyler as Judge of the Supreme Court, and the deed was objected to because he did not take the acknowledgment as justice of the peace. The deed was held to be sufficiently acknowledged, the Court saying: "The constitution of this state makes every Judge of the Supreme Court, ex officio, Justice of the peace throughout the state. Possibly the better course for them would be, to sign in that capacity in which they act. But, when such a judge does an act which should be done as justice of the peace, and he signs as Judge of the Supreme Court, that, ex vi termini, carries with it justice of the peace also." The same provision of our Constitution, Chap. II, Section 28, provides that the several judges of the county courts shall be justices of the peace in their respective counties, by virtue of their office, except in the trial of such causes as may be appealed to the county court. Consequently when an assistant judge of the county court does an act in his county which should be done as justice of the peace, and he signs as assistant judge of the county court, that likewise carries with it justice of the peace also, except in the trial of such causes as may be appealed to the county court. See Watson v. Payne, 94 Vt. 299, 111 A. 462. The return of the sheriff serving the writ, which is a part of the record (Fisk v. Wallace, 51 Vt. 418), shows that the value of the property replevied was $ 60.00, so under P. L. 1919, only the municipal court had jurisdiction, and Judge Lucas as an ex officio justice of the peace had no jurisdiction to try the cause. Hence it was not such a cause as could be appealed from his decision.

But it is here objected that although Judge Lucas may have signed the writ as a justice of the peace he never issued it, because it was not made returnable before himself, as provided in P. L. 1919 and 1920, in case it appeared from the certificate of the officer in his return that the value of the property replevied did not exceed twenty dollars, and that consequently the writ was void, and never issued because not issued according to law. The writ was defective in this respect, but it was not void, it was merely voidable and was valid until properly attacked. Voidable process includes all defective process where the defect is of such nature that it is capable of being amended, and is valid until attacked, and an amendment is allowable where the process, although irregular, is sufficient to give jurisdiction--where there is anything to amend by; that is, where it can be clearly determined from the process itself what was intended. Howe v. Lisbon Savings Bank, 111 Vt. 201, 208, 14 A.2d 3; Elwell v. Olin, 99 Vt. 460, 462, 134 A. 592.

So long as such a writ is made returnable to a court which has jurisdiction as shown by the officer's certificate in his return of the value of the property replevied, it is hard to see how the defendant can be prejudiced. From such a writ and the return it can be clearly determined what was intended. The defendant knows where and when to appear and defend. The failure to make the writ returnable to the other courts named, which the officer's certificate shows have no jurisdiction, is only a matter of form, and can be cured by amendment. Of course, if there were no direction to return to a court having jurisdiction as shown by the officer's certificate the writ would be void and unamendable. The motion says nothing about such defect in the writ and merely says that the writ was not issued by a justice of the peace. On this ground of the motion we are not concerned with the defect in the writ. When Judge Lucas signed this writ and turned it over to an officer for service it was issued by a justice of the peace.

Another ground of the motion to dismiss is that the writ is not directed to any sheriff or constable in the State as directed by P. L. 1493 and 1928. This defect is only a matter of form, and plaintiff's motion for leave to amend, which was denied as a matter of law, should have been granted. In Chadwick v. Divol, 12 Vt. 499, 503, the writ was served by the sheriff of Orleans County when it was directed only to the sheriff of Orange County. An amendment was granted so as to prevent an abatement, and Hearsey v. Bradbury, 9 Mass. 95, was cited. In that case the writ was...

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