Sartwell v. Sowles

• Decision Date: 24 May 1900
• Citation: 48 A. 11,72 Vt. 270
• Court: Vermont Supreme Court
• Parties: SARTWELL v. SOWLES et al.

48 A. 11

72 Vt. 270

SARTWELL

v. SOWLES et al.

Supreme Court of Vermont. Franklin.

May 24, 1900.

Exceptions from Franklin county court Action by Alexander Sartwell against Albert Sowles and another. From a Judgment in favor of plaintiff, defendants bring exceptions. Affirmed.

Before the case came on for trial a motion to dismiss for want of jurisdiction was heard and overruled. It appeared by the writ and was conceded that the date of the writ had been altered. On evidence received subject to objection, the court found that the blank writ was filled out on June 7, 1898, and that date inserted, but that the recognizance was taken by the justice on June 17, 1898, and the writ then issued by him, and that at that time the date was changed to June 17, 1898, and that that was the true date of the issue of the writ. On the trial by jury it appeared that in April, 1893, the plaintiff and the defendant Sowles made an oral contract by which the plaintiff was to carry on, upon shares, a dairy farm in Swanton belonging to an estate of which the defendant Sowles was administrator. The plaintiff's evidence tended to show that the contract was for five years, while that of the defendants' tended to show that it was for one year only, and that at the end of a year it was extended to April 1, 1895. The plaintiff took possession of the farm under the contract and carried it on until June 7, 1895, when he was ejected as hereinafter stated. The evidence of the defendant Sowles tended to show that in February, 1895, he told the plaintiff he was not to have the farm another year. This the plaintiff denied. May 7, 1895, the defendant Sowles, as administrator, brought an action of ejectment against the plaintiff, returnable before a justice of the peace. On the return day of the writ, May 14, 1895, the defendant in that suit moved to dismiss the action on the ground that the justice was without jurisdiction; but this motion was overruled, and the plaintiff in that suit recovered judgment for the seisin and peaceable possession of said farm, and a writ of possession thereon. The proceeding before the justice was not justice's ejectment, so called, under V. S. § 1560, and the following sections, but an action of ejectment proper; the writ being in accordance with V. S. § 5117, form 24, and the writ of possession in accordance with form 5 of the same section. Shortly after the judgment was rendered the parties agreed to submit their differences to arbitration; said Sowles giving a bond to abide by and perform the award, and both parties agreeing not to revoke. After a partial hearing before arbitrators said Sowles revoked the submission, and on June 5, 1895, took out the writ of possession above referred to. This writ was put into the hands of the defendant Ladd, as deputy sheriff, to serve; and June 10, 1898, both defendants went to the farm in question, and the defendant Ladd then quietly and peaceably moved the plaintiff's goods therefrom into the highway, and put the defendant Sowles into the possession of the farm. The testimony of the defendant Ladd tended to show that he acted in good faith in reliance upon the validity of the process in his hands. At the April term, 1898, of the Franklin county court the judgment of the justice above recited was vacated in an action of audita querela. In this case against the objection of the defendants the plaintiff introduced in evidence the judgment of the justice, the writ of possession, and the proceedings on audita querela. At the close of the testimony each defendant moved for a verdict in his favor. Both motions were overruled. The court held that the writ of possession and the judgment upon which it was issued were void, and that the defend ants were trespassers and liable for actual damages. The defendants' ninth and tenth requests to charge, and the first separate request of the defendant Ladd, were based on the claim that the writ of possession was proper in form, and on its face appeared to have been regularly issued in a proceeding of which the magistrate had apparent jurisdiction, which he had properly exercised. The defendants' twelfth, thirteenth, and fourteenth requests to charge were based on the claim that, by virtue of the terms of the agreement of submission to arbitration, prospective profits from the farm could not be considered in arriving at the amount of damages. The jury found specially that the contract of lease was for five years; that the damages to the plaintiff from the moving of his goods into the highway were $36.50; that the plaintiff's damages in consequence of his not occupying the farm for the year from April 1, 1895, to April 1, 1896, were $300; that the plaintiff's damages in consequence of his not being permitted to occupy the farm until the end of the term of five years were $400. The court rendered judgment for $336.50, the plaintiff electing to take a judgment for that sum, and a certified execution was awarded.

Argued before ROWELL, MUNSON, START, THOMPSON, and WATSON, JJ.

E. A. Ayers and C. G. Austin, for plaintiff.

E. A. Sowles, Willard Farrington, and A. A. Hall, for defendants.

WATSON, J. The evidence to show the true date of the writ was admissible, and the motion to dismiss for want of jurisdiction was properly overruled. Hopkins v. School Disk, 27 Vt. 281.

After the plaintiff had been in possession of the farm for more than two years, carrying it on under his contract, defendant Sowles, as administrator of the estate of William L. Sowles, brought his action of ejectment in the statutory form—not a justice ejectment under the forcible entry and detainer act—against the plaintiff, returnable before a justice of the peace; but in the declaration his seisin and possession were alleged to be in his own right in fee, and not in his representative capacity. Judgment was rendered for the plaintiff therein to recover the seisin and peaceable possession of the farm in question, and a writ of possession was issued upon that judgment. The writ of possession was put into the hands of defendant Ladd, a deputy sheriff, for service, whereupon the defendants went to the farm, and Ladd quietly and peaceably moved the household goods and other personal effects of the defendant therein into the highway, and put Sowles into possession of the farm; and Ladd seeks to justify his acts in this behalf, in the suit at bar, under the writ of possession. The plaintiff in this suit contends that the justice had no jurisdiction of the subject-matter, and therefore the writ of possession affords no justification. At the April term, 1898, of Franklin county court, the judgment of the justice was vacated in an action of audita querela brought for that purpose, and it was adjudged therein that the...