Town of Randolph v. Harold J. Lyon

• Decision Date: 02 October 1934
• Citation: 175 A. 1,106 Vt. 495
• Parties: TOWN OF RANDOLPH v. HAROLD J. LYON
• Court: Vermont Supreme Court

175 A. 1

106 Vt. 495

TOWN OF RANDOLPH v. HAROLD J. LYON

Supreme Court of Vermont

October 2, 1934

May Term, 1934.

Paupers---P. L. 3926---"Transient Person"---Pleadings---Determination of Sufficiency of Demurrer---"Speaking Demurrer"---When Person Becomes "Transient" within Meaning of Term as Used in P. L. 3926---Transient Person Need Not Be Pauper To Make P. L. 3926 Applicable---Right of Action by Town Furnishing Relief to Transient Person against Such Person---Sufficiency of Declaration in Action against Transient Person To Recover Amount Paid by Town for His Board While in Jail---Waiver of Fault in Declaration by Not Pointing It Out in Demurrer---Judgment upon Overruling Demurrer.

1. Person brought from one town and confined to jail in another is a "transient person," within meaning of P. L 3926, requiring jailer to be at expense of relieving and supporting such person, until he represents his situation to overseer of poor of town in which offense was committed after which such overseer is required to provide for such support.

2. In action by town to recover from defendant amount expended for his board while he was confined in jail in another town on certified execution, where demurrer set up that "at all times for three years previous to said confinement" defendant was resident of plaintiff town, declaration failing to show where he had resided when committed to jail, held that demurrer to declaration was properly overruled as "speaking demurrer."

3. Purpose of demurrer to declaration being to test its sufficiency, demurrer must be based exclusively on matter apparent on face of declaration.

4. Demurrer to declaration is not aided by facts not appearing in declaration, even though conceded at hearing.

5. Person committed to jail becomes "transient," whether he resides in town where jail is located or otherwise, within meaning of term as used in P L. 3926, requiring jailer to be at expense of relieving and supporting such person, until he represents his situation to overseer of poor of town in which offense was committed after which such overseer is required to provide such support, being confined at place not his home.

6. Word "transient," in foregoing statute is used in sense of such person being away from home and disabled, and thereby confined in house not his home.

7. P. L. 3926, providing that if transient person is committed to jail, and is in need of relief, jailer shall be at expense of relieving and supporting such person until he represents his situation to overseer of poor of town in which offense was committed, after which such overseer of poor shall provide for such support, does not imply that such "transient person" is pauper, but is intended to have such relief and support furnished, if person is unable to command resources or procure for himself what may be needed by way of relief or support, irrespective of his resources and means.

8. Town furnishing relief under provisions of P. L. 3926, to transient person committed to jail, has right to bring action to recover expense thereof from person so helped.

9. In action by town against transient person committed to jail, for whom town has been required to furnish relief under provisions of P. L. 3926, declaration need not allege that defendant was of sufficient ability to defray expenses of his support, matter of sufficient ability therefor being material only when one town seeks reimbursement from another.

10. Fault in declaration, not pointed out by demurrer, is waived.

11. Upon overruling demurrer to declaration, entry of judgment upon merits, without first having made and filed findings of fact, was erroneous.

ACTION OF CONTRACT by town, to recover amount paid for defendant's board while in jail. Heard on demurrer to declaration at the June Term, 1933, Orange County, Sherman, J., presiding. Demurrer overruled, and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment that the declaration is sufficient is affirmed and the cause is remanded for trial on the merits.

Finn & Monti for the defendant.

Stanley L. Chamberlain for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

SHERBURNE

This is an action of contract to recover the amount paid for defendant's board while in jail. The case comes here upon exceptions to the overruling of defendant's demurrer to the declaration and to the judgment in favor of the plaintiff. The material parts of the declaration are as follows: "That on the 31st day of December, 1931, the said defendant was committed to the jail in Chelsea * * * on a certain certified execution issued by the Court of Chancery * * * in favor of one C. B. Prescott against said defendant; that the offense for which said execution was issued was committed in the Town of Randolph * * * that on the day aforesaid the keeper of said jail notified the overseer of the poor of the plaintiff town in writing, pursuant to statute after said defendant had been committed to said jail, that he was in need of relief and that said jailer looked to said overseer for payment of the board furnished to said Lyon while he remained in charge of said jail." And the declaration further alleges a payment to said jailer pursuant to the notice, a demand upon the defendant, and his refusal and neglect to pay.

G. L. 4222, now P. L. 3926, so far as material, is as follows: "If a transient person * * * is committed to jail, and is in need of relief, * * * the jailer * * * shall be at the expense of relieving and supporting such person, until he represents his situation * * * to the overseer of the poor of the town in which the offense was committed, after which the overseer of the poor so notified shall provide for his support; * * * and if such transient person is not of sufficient ability to defray the expenses of his support, with the other contingent charges, the town defraying such expense may recover the same in an action of contract, on this statute, from the town in which such person last resided three years, supporting himself and family."

The defendant in his brief says that there is no right of action given under the statute or at common law against the defendant to repay the plaintiff town and cites authorities tending to show that no recovery can be had from paupers for assistance rendered to them. The trouble with this contention is that aid was not rendered to the defendant as a pauper. A person brought from one town and confined to jail in another is a "transient person" within the meaning of the statute. Town of Pawlet v Town of Rutland, Brayt. 175; Town of Manchester v. Town of Rupert, 6 Vt. 291, 294; Danville v. Putney, 6 Vt. 512, 518. The declaration does not show where the defendant resided when committed to jail. Although the demurrer specially set up that the defendant "was at all times for three years previous to said confinement a resident of" plaintiff town, and although it was conceded at the hearing upon the demurrer that the defendant had been a resident of the plaintiff town for three years preceding his confinement in jail supporting himself and family, this fact is not before us. The purpose of a demurrer being to test the sufficiency of the declaration, it must be based exclusively on matter apparent on the face thereof. If the matter is not apparent it must be shown by plea or answer. This special ground of demurrer was properly overruled because it is what is sometimes...