Roy v. Phelps

• Decision Date: 07 January 1910
• Citation: Roy v. Phelps, 83 Vt. 174, 75 A. 13 (Vt. 1910)
• Parties: ROY v. PHELPS.
• Court: Vermont Supreme Court

75 A. 13

83 Vt. 174

ROY

v. PHELPS.

Supreme Court of Vermont. Caledonia.

Jan. 7, 1910.

Exceptions from Caledonia County Court; Willard W. Miles, Judge.

Action by William Roy against L. P. Phelps. Heard on motion to dismiss the case. From an order granting the motion pro forma, plaintiff excepts. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

George W. Pike and Guy W. Hill, for plaintiff.

Dunnett & Slack, for defendant.

POWERS, J. This is an action on the case for an alleged false warranty in the sale of a horse. The writ issued as a capias, and was served by arresting the defendant's body. The declaration contains four counts. The second and third are essentially like those in Caldbeck v. Simanton, 82 Vt. 69, 71 Atl. 881; no scienter being alleged. The first and fourth contain an averment of the scienter. The defendant moved to dismiss the action on the ground that, the second and third counts being merely counts on contract (though tort in form), the action was improperly commenced by arrest and the court was consequently without jurisdiction. The motion was sustained pro forma, and the plaintiff excepted.

The plaintiff's argument proceeds upon the theory that the question presented is one merely of misjoinder. The fault, however, if it exists, lies deeper than that. It is fundamental and jurisdictional, and not a question of joinder at all. It is agreed that all the counts are in case. It is not denied that each is sufficient in form and substance. No question is made but that the subject-matter of each is within the jurisdiction of the court when that jurisdiction is properly invoked; and it is conceded that all could be joined in one declaration, if the writ issued as a summons or attachment merely. But it is insisted that the court had no jurisdiction, because, on account of the character of the second and third counts, the writ was served upon the body of the defendant in violation of the terms of the statute. P. S. 2081. If this declaration only contained these two counts, the case would be like the Caldbeck Case, supra, and controlled by it. The scope of the decision in that case is that, while assumpsit and case are concurrent remedies for the breach of a warranty in the sale of chattels, the real nature of the action in a given case is to be determined by its substance rather than its form or classification; and that when the action is brought in case, without alleging the scienter, it is tort in form only, and is contract in substance, and therefore cannot, in view of the statute referred to, be commenced by arresting the body. It is argued that this case is to be distinguished from the Caldbeck Case, because the first and fourth counts are of such a nature as to warrant the issuance of a capias and the arrest of the body, and that liberty to amend by dropping the objectionable counts could be granted and the case proceeded with on the others. Were it the mere case of a declaration containing two good counts and two bad counts, this could be done. But it is not. It is not even the case of a declaration containing counts a part of which are within and a part without the jurisdiction of the court, though in one view it resembles such cases, of which we have several. Chadwick v. Batchelder, 46 Vt. 724, was an action brought before a justice of the peace. The declaration contained two counts —one trespass quare clausum, the other trespass de bonis. The ad damnum was $25. The cause was dismissed on the defendant's motion made after verdict. After alluding to the fact that the first count was for a cause of action wherein the sum demanded exceeded the jurisdiction of a justice of the peace, the court said: "This difficulty is not obviated by the fact that the plaintiff has joined a count for trespass that is within the jurisdiction of a justice. The court must have jurisdiction of the whole case as it stands on the face of the declaration, with power to render judgment on the whole case, or any part of it, to the full amount of the plaintiff's demand, if the proof requires it. * * * The court has no power to remedy the difficulty; it cannot allow the ad damnum to be reduced or the objectionable count to be stricken out; as to do so, the court must have jurisdiction."

French v. Holt, 57 Vt 187, was an action brought before a justice of the peace with a declaration in two counts. One was trespass on the freehold within the jurisdiction of the justice. The other was case not within the jurisdiction of the justice because the title to land was concerned. It was held that the justice had no jurisdiction, and that he could not amend himself into jurisdiction by striking out the count in case. Heath v. Robinson, 75 Vt. 133, 53 Atl. 995, is much to the same effect, though the motion iii that case was only to dismiss the amended declaration, and the court went no further than it was asked to go and contented itself with holding that the new declaration ought to have been dismissed, and remanded the cause.

In another view this case resembles Hill v. Whitney, 16 Vt 461, and Ferris v. Ferris, 25 Vt. 100, which were actions improperly brought by trustee process. It was held that they should be dismissed rather than proceed against the principal defendant after the trustees had been discharged and the process amended. Like these cases, the case in hand...