Stone v. Van Curler

• Decision Date: 01 February 1829
• Citation: 2 Vt. 115
• Parties: JOHN K. STONE v. AARON VAN CURLER, (in Error.)
• Court: Vermont Supreme Court

2 Vt. 115

JOHN K. STONE v. AARON VAN CURLER, (in Error.)

Supreme Court of Vermont, Bennington

February, 1829

The record brought up in this case showed that the parties both lived in Manchester; that Van Curler had his writ in trover signed by a justice of the peace in Sandgate, and it was made returnable before him at his dwelling house in Sandgate, at a time certain. The writ was duly served upon Stone, and at the time therein set for trial, the court was called at Manchester, where both parties appeared and had a trial upon the merits, without any plea in abatement being interposed by the defendant, Stone. Van Curler recovered judgment, and Stone appealed to the County Court, and there entered his appeal, and put in a formal plea of the general issue to the country. Van Curler's counsel neglected to add the similiter. No notice was taken of this; but the cause was tried by the jury, on the original declaration, and Van Curler obtained a verdict, and recovered judgment thereon. There was, also, a defect in the writ; it concluded " to the damage of the thirty dollars; " the word " plaintiff" being omitted. There was no motion in arrest nor were these difficulties, in any way, brought to view, in the County Court. Stone now brought his writ of error assigning these several matters, and perhaps others, for error. Van Curler pleaded in nullo est erratum, and issue was joined thereon.

Affirmed.

S Swift, for plaintiff in Error.

L. Sargent, for defendant in Error.

OPINION

HUTCHINSON, J.

The original writ in this case, being made returnable in Sandgate, when both parties resided in Manchester, furnished a good cause of abatement, had it been so pleaded. But it appears that both parties appeared, and had a trial upon the merits in Manchester; and nothing appears but what they both supposed the writ returnable there. The Justice had jurisdiction of the parties and over the cause of action: but Stone had a right to be sued in Manchester only, as Van Curler resided there also. But Van Curler had a right to have the objection raised in season, or never. After two trials upon the merits, this objection cannot be reached by a writ of error.

The objection to the want of venue in the declaration, also to the defect in the ad damnum, ought to be raised by a special demurrer to avail the party: so also, the not filing a new declaration in the County Court. The rules of the County Court do not require a...