Petition Of Jacobs.

Decision Date04 October 1949
Docket NumberNo. 1753.,1753.
PartiesPetition of JACOBS.
CourtVermont Supreme Court

OPINION TEXT STARTS HERE

J. E. Jacobs filed a petition for appointment of commissions to inquire into the convenience and necessity of a public highway laid out by the selectmen of the town of Barre through petitioner's lands.

From an order of the County Court of Washington County, Charles B. Adams, P. J., dismissing the petition, petitioner brought an exception.

The Supreme Court, Cleary, J., reversed the judgment, holding that a general appearance by such town was a waiver of summons thereto and gave the court jurisdiction of the town as a party and that the town could not waive the effect of such appearance to petitioner's harm by withdrawing it.

Lawson & Paterson, Barre, Graves, Mehlman & Brown, St. Johnsbury, for appellant.

Abare & Sargent, Barre, for appellee.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY and BLACKMER.

CLEARY, Justice.

This cause is here on the exception of J. E. Jacobs of the town of Barre from an order of the Washington County Court dismissing his petition for the appointment of Commissioners to inquire into the convenience and necessity of a public highway laid out by the Selectmen of the town of Barre and passing through lands owned by Jacobs. On the bringing of the petition citation was issued for notice to A. N. McLeod, one of the Selectmen of the town of Barre. The citation did not summon the town of Barre, but on March 19, 1947, the town of Barre entered a general appearance. On March 31, 1948, A. N. McLeod, Selectman of the town of Barre, entered a special appearance and filed a motion to abate on the ground that the petition failed to summon the other two selectmen. The order dismissing the Petition is dated April 16, 1948, and was filed on May 3, 1948. On April 17, 1948, the attorneys for the town of Barre wrote the Washington County Clerk asking that the town's appearance be withdrawn. At the time the petition was heard the docket entries did not show the general appearance of the town of Barre. Although the same counsel represented both the town of Barre and McLeod, neither counsel nor the county clerk informed the court, so that the court and counsel for Jacobs first learned of the general appearance by the town after the petition had been dismissed.

The laying out of highways by local authorities is governed by Chapter 236 of V.S.Rev.1947. Section 5039 of that chapter provides for the bringing of a petition such as this in the county court so the court below had jurisdiction of the subject matter and the process. Though the statute, V.S. § 5040, Rev.1947, provides that the petition with citation shall be served on one or more of the selectmen it is obvious that the town is the proper and necessary party and should have been summoned.

Drown et al. v. Barton et al., 45 Vt. 33, 34. But the general appearance by the town of Barre was a waiver of summons. Johnson v. Bennington & N. A. St. R. Co., 87 Vt. 519, 523, 90 A. 507. It gave the court jurisdiction of the town as a party. Blood v. Crandall, 28 Vt. 396, 398; Reynolds v. Romano, 96 Vt. 222, 224, 118 A. 810; Howe v. Lisbon Savings Bank & Trust Co., 111 Vt. 201, 213, 214, 14 A.2d 3. Since, at the time of hearing, the court had jurisdiction of the subject matter, the process and the necessary parties, the motion to abate should have been denied, and we have no doubt that would have been done had the lower court been informed of the true situation.

The record does not show that the defendant town's request for withdrawal of...

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4 cases
  • In Re: Will of Gemma Prudenzano
    • United States
    • Vermont Supreme Court
    • October 4, 1949
  • In Re Prudenzano's Will.
    • United States
    • Vermont Supreme Court
    • October 4, 1949
  • Demers v. City of Montpelier
    • United States
    • Vermont Supreme Court
    • May 6, 1958
    ...the selectmen and appeals from their decision by petition to the county courts is governed by V.S. 47, Chapter 236. In re Petition of Jacobs, 116 Vt. 11, 12, 68 A.2d 710. The resolution of the City Council of February 25 sets forth that 'the City Clerk was directed to issue a citation and n......
  • In Re: Petition of Jacobs
    • United States
    • Vermont Supreme Court
    • October 4, 1949

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