Scott v. Darling
| Decision Date | 16 July 1894 |
| Parties | SCOTT v. DARLING. |
| Court | Vermont Supreme Court |
Exceptions from Bennington county court; Ross, Chief Judge.
Audita querela on declaration of Olin Scott against C. H. Daring. Demurrer sustained, and plaintiff excepts. Exception overruled.
W. B. Sheldon, for plaintiff. C. H. Mason, Batchelder & Bates, and O. M. Barber, for defendant.
The statute allowing an appeal from the judgment of a justice in a civil cause declares that no appeal shall be allowed in actions in which neither the ad damnum in the writ, nor the sum demanded by the declaration, nor the specifications or exhibits of the plaintiff on trial, shall exceed $20, nor in actions of assumpsit to recover a balance due on account, when the balance claimed does not exceed $20; but it provides, among other things, that, in actions of assumpsit to recover a balance due on account, an appeal shall be allowed when the defendant files with the justice, within two hours of the rendition of judgment an affidavit setting forth that he has a good defense to more than $20 of the plaintiff's account Acts 1884, No. 122. The action in which was rendered the judgment sought to be set aside was an action of assumpsit in which the ad damnum was $20, and it was brought to recover a claimed balance of less than $20 on an open account of more than $20. The defendant therein prayed for an appeal, but, as he filed no affidavit that he had a good defense to more than $20 of the plaintiff's account an appeal was denied. It is now claimed that the account referred to in the statute in this connection is not an open account, but an account stated, and that the action was appealable, because both the sum demanded by the declaration, as it is claimed, which was in the common counts, and the specifications of the plaintiff on trial, exceeded $20. But the statute provides in another subdivision of the same section for appeals in actions on accounts stated, which shows that the account referred to in this connection is not an account stated, but an open account; and the provision denying an appeal if neither the ad damnum in the writ, nor the sum demanded by the declaration, nor the specifications of the plaintiff on trial, shall exceed $20, is controlled by the further provision that in actions of assumpsit to recover a balance due on account, when the balance claimed does not exceed $20, no appeal shall be allowed, except as provided. This latter provision is an exception to and a limitation upon the former provision, and renders the former inoperative in cases coming within the latter.
It is further claimed that, inasmuch as a part of the balance claimed consisted of two installments of $4 on a written...
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Enosburg Grain Company v. Wilder And Clark
... ... jurisdiction was held to have been properly overruled when ... there was nothing on the record to show such lack. And see, ... Scott v. Darling, 66 Vt. 510, 514, 29 A ... 993. The great weight of authority is that the burden of ... showing non-compliance with partnership ... ...
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Enosburg Grain Co. v. Wilder, 546.
...of jurisdiction was held to have been properly overruled when there was nothing on the record to show such lack. And see, Scott v. Darling, 66 Vt. 510, 514, 29 A. 993. The great weight of authority is that the burden of showing noncompliance with partnership registration statutes is upon th......
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Luce v. Minard
...v. Colony, 6 Vt. 91; Bell v. Mason, 10 Vt. 509; Wightman v. Carlisle, 14 Vt. 296; Bank of Rutland v. Cramton, 28 Vt. 330; Scott v. Darling, 66 Vt. 510, 29 Atl. 993. That the question of jurisdiction does not depend upon the defense made appears from Temple v. Bradley, 14 Vt. 254, wherein it......