Sawyer v. LaFlamme, 1031

• Decision Date: 07 November 1962
• Docket Number: No. 1031,1031
• Citation: 185 A.2d 466,123 Vt. 229
• Parties: , 98 A.L.R.2d 548 Shirley SAWYER v. Walter LaFLAMME.
• Court: Vermont Supreme Court

Page 466

185 A.2d 466

123 Vt. 229, 98 A.L.R.2d 548

Shirley SAWYER v. Walter LaFLAMME.

No. 1031.

Supreme Court of Vermont.

Nov. 7, 1962.

James S. Abatiell, Rutland, for plaintiff.

Earle J. Bishop, Rutland, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

BARNEY, Justice.

The defendant alleges that this action is founded on invalid process. This is the sole concern of his appeal. It is his position that he was enticed into the jurisdiction so that service might be accomplished. The issue is raised by attacking the lower court's denial of his motion to dismiss, and by challenging the validity of the judgment. The lower court assessed damages and entered judgment, after noting that the defendant conceded liability but was proceeding under a reservation of his rights to his exceptions taken to the denial of his motion to dismiss. Notice of appeal properly filed brought the matter here.

The plaintiff takes the position that, by proceeding to judgment, the defendant lost the benefit of his exceptions based on the denial of his motion to dismiss, notwithstanding his reservation of rights. Acknowledging that the procedure adopted by the defendant leaves something to be desired, it is clear that he did not intend what he did to operate as a waiver. Such a reservation of rights may not be sufficient to avoid the claim of waiver, in the usual case of abatable matter. Since the claim here involves the alleged misuse of process issued under the authority of our court system, different treatment is justified in this particular matter.

Personal service of process obtained by fraud, trickery or artifice will not support litigation. This is not because the service did not give the court personal jurisdiction over the defendant. Instead it is based on the principle that the court will refuse to exercise its jurisdiction in favor of a party that has used unlawful means to obtain service. 42 Am.Jur. Process § 35. To quote Chief Justice Skinner in Steele v. Bates, 2 Aikens 338, 341: 'I could never consent to say, that a man should be permitted to decoy another from a foreign government, and then, in violation of his faith, to sue him here. I believe the law to be now settled, that the process might have been avoided for the fraud.' Where, as here, there is a complaint that the court's own process has been fraudulently employed, there is an enlarged obligation to examine the question not present in other types of matters in abatement, unless the charge has been withdrawn. What might amount to waiver of other issues will not serve to prevent review of this question Courts are bound to superintend the use of their process and discipline improprieties.

'Courts do not look with favor on any form of trickery or chicanery, and any conduct smacking of such improprieties will properly be scrutinized with jealous caution in order to prevent successful perpetration; but honesty of intent on the part of plaintiff will be presumed in the absence of facts and circumstances justifying an inference to the contrary.' 72 C.J.S. Process § 39, pp. 1050-1051.

That is an exact statement of our duty in this case, under which we are bound to review defendant's complaint that he...