Tracy v. Grand Trunk Ry. Co.

• Decision Date: 29 February 1904
• Citation: 76 Vt. 313,57 A. 104
• Parties: TRACY v. GRAND TRUNK RY. CO.
• Court: Vermont Supreme Court

57 A. 104

76 Vt. 313

TRACY

v. GRAND TRUNK RY. CO.

Supreme Court of Vermont. Essex.

Feb. 29, 1904.

Exceptions from Essex County Court; Start, Judge.

Action by John E. Tracy against the Grand Trunk Railway Company. Judgment for plaintiff, and defendant excepts. Affirmed.

Argued before TYLER, MUNSON, WATSON, and HASELTON, JJ.

May & Simonds and Porter H. Dale, for plaintiff.

C. A Hight, L. L. Hight and Chamberlin & Rich, for defendant.

HASELTON, J. This was an action on the case, tried by jury in the Essex county court. A verdict for the plaintiff was returned, and judgment was rendered thereon. The cause of action was alleged to have occurred April 22, 1894. The writ was dated September 20, 1900. The defendant's pleas were the general issue and the statute of limitations. The exceptions taken and relied on relate solely to that part of the case involving the statute of limitations. To the defendant's plea of the statute, the plaintiff replied, admitting that this action was brought more than six years after the cause of action accrued, but alleging that before the expiration of that period (that is, April 16, 1900) he commenced a suit against the defendant for the same cause of action, and that the writ therein failed of sufficient service by unavoidable accident; that the former suit was returnable, and was returned, to the Essex county court; and that at the September term, 1900, of said court, said former suit was determined against the plaintiff solely because of such failure of sufficient service.

The plaintiff claimed that the case was brought within V. S. 1214, which provides that "if, in an action commenced within the time limited by the statute, the writ fails of sufficient service or return by unavoidable accident," the plaintiff may within one year after the determination of the original suit commence a new action for the same cause. In support of this claim, the plaintiff, with out objection, introduced in evidence the record of the former proceedings. This record showed the date of the former writ, April 16, 1900, service on August 11, 1900, docketing August 13, 1900, and that at the September term, 1900, of said court, the defendant appeared specially, and moved to dismiss for reasons stated as follows: "(1) Because it appears upon the face of the record that said action has never been legally commenced, and is not now legally pending before this court. (2) Because it appears upon the face of the record that the writ and process filed in said action was not served within twenty-one days from the date of said writ, as required by law. (3) Because it appears upon the face of the record that said process was not entered and docketed in the county clerk's office on or before the expiration of the twenty-one days from the date of issuing the same. (4) Because the defendant named in said action has never been legally served with process in said action, and that the court had no jurisdiction over the said defendant by virtue of said action or process." The record further recites that, "after full hearing of said motion, the court dismissed said action." After the introduction of this record, the plaintiff was allowed, subject to objection and exception on the part of the defendant, to introduce oral evidence for the purpose of showing why the writ in the original action was not served and returned within the 21 days limited therein.

The defendant claims that the very question upon which this oral evidence was received had been adjudicated in the former case after full hearing upon the merits. This contention is based upon the facts that the motion to dismiss presented, as the first ground for dismissal, that said former action had never been legally commenced; that a full hearing was had upon the motion; and that the court assigned no ground of dismissal, but sustained the motion generally. But the inquiry under a motion to dismiss relates only to what appears of record. Arel v. Centebar, 73 Vt. 238, 50 Atl. 1064; State v. Johnson, 72 Vt. 118, 47 Atl. 398; Alexander v. School District, 62 Vt 273, 19 Atl. 995; Johnson v. Williams, 48 Vt 565; Bliss v. Smith, 42 Vt. 198; R. Co. v. Bailey, 24 Vt. 465, 58 Am. Dec. 181; Culver v. Balch, 23 Vt. 618. A full hearing upon such a motion means only a full hearing of such matters as are within the scope of the motion. In the defendant's brief it is stated that, "in order to decide whether or not the action had been legally commenced, it would be proper and necessary for the court to determine, among other things, whether or not the writ was properly made and dated; whether or not it was made and sued out with the intention of immediate service; as it was not served until more than three months after the proper time for service, it would be necessary for the court to pass upon the question as to why it was not served; whether the plaintiff, after making the writ, had, as matter of law, or as matter of fact, so acted as to abandon the suit" But, clearly, several matters are enumerated in the above quotation about which nothing appears in the record on which this motion to dismiss was granted, and which, therefore, under the practice in this state, cannot be presumed to have been determined on a motion to dismiss. The presumption, rather, is that judgment on the motion passed on the clear and sufficient grounds for dismissal appearing of record, and pointed out in the motion. It is suggested in argument that the oral evidence taken under objection and exception, and set out in the bill of exceptions herein, shows that the hearing on the motion to dismiss the former action was not confined to what appeared of record. But an examination of the evidence referred to merely shows certain questions in line with this suggestion. The answers to these questions are such that they fall short of being testimony to sustain the suggestion.

At the close of the evidence in this case, the defendant moved the court to direct a verdict in its favor. This motion was overruled, and the defendant excepted. The grounds of this exception were such that the basis was laid for the consideration not only of the claim already discussed, but also of other claims, one of which is that it appears from the evidence introduced that the former action was never legally commenced. It is unquestionable that for most purposes, if not for all not relating to the statute of limitations, an action in personam is not treated as commenced until process is served. Burlington v. Traction Co., 70 Vt 491, 41 Atl. 514; Howard v. Bartlett, 70 Vt. 314, 40 Atl. 825; Stanley v. Turner, 68 Vt. 315, 35 Atl. 321; Randall v. Bacon, 49 Vt. 20, 24 Am. Rep. 100. Under the general provisions of the statute of limitations, the time of issuing the writ is regarded as the commencement of an action if due service follows, and not otherwise. Chapman v. Goodrich, 55 Vt. 354; Randall v. Bacon, 49 Vt. 20, 24 Am. Rep. 100; Kirby v. Jackson, 42 Vt 552; Day v. Lamb, 7 Vt. 426. But V. S. 1214, is an exceptional provision of the statute of limitations; and the part of it under consideration is meaningless, if an action cannot be commenced, within the true interpretation of the statute, unless service of the writ is made, for it, in unmistakable terms, applies to actions commenced which fail of service. A suit is commenced, within the meaning of V. S. 1214, when the writ is issued, with the purpose on the part of the plaintiff of having it served and proceeded with, although the writ fails of service, or of sufficient service, provided it so fails through unavoidable accident. Any other holding would be obnoxious both to the spirit and to the letter of the section in question.

We come now to the question, raised by the defendant's motion for a verdict whether the evidence, considered together, tended to show that the writ in the former suit failed of service by unavoidable accident. That that writ failed of service, there can be no question. It had failed of service when the period of 21 days after April 16, 1900, had expired. What was done with the writ in the August following went for nothing. But a case in which there is an utter failure of service is as much within the contemplation of the statute in question as a case in which something is done toward service, but not enough to amount to legal service. No service is insufficient service. See Bullock v.

Dean, 12 Mete. (Mass.) 15; Marble v. Hinds, 67 Me. 203. The plaintiff's evidence tended to show facts which may be...