Wescott v. Briere

• Court: Vermont Supreme Court
• Writing for the Court: SHERBURNE
• Citation: Wescott v. Briere, 111 Vt. 403, 17 A.2d 244 (Vt. 1941)
• Decision Date: 07 January 1941
• Parties: CHARLES WESCOTT v. WILLIAM BRIERE

17 A.2d 244

111 Vt. 403

CHARLES WESCOTT v. WILLIAM BRIERE

Supreme Court of Vermont

January 7, 1941

Special Term at Rutland, November, 1940.

Justice Recognizance.---1. Harmonizing Contemporaneous Statutes.---2. Inconsistent Statutory Construction Avoided.---3. Recognizance on Writs, P. L. 1492.---4. Justices' Courts are Courts of Record.---5. Recognizance of P. L. 1492 Secures Taxable Costs.---6. "Sufficient Security" of P. L 1492 Same as "Security for Costs" of P. L 1458.---7. P. L. 1492 Requires Security by Recognizance.---8 P. L. 1458 Requires Security on Justice Writs.---9. P. L 1492 Controls P. L. 1458.---10. Lack of Recognizance of P. L. 1492 Ground for Abatement.---11. Lack of Recognizance of P. L. 1492 Waived if not Insisted Upon on Return Day.---12. Justice's Adjournment for over Three Months Entitles Defendant to have Case Dismissed, P. L. 1472.---13. Justice Case "Held Open" over Three Months Discontinued, P. L. 1472.

1. Parts of the same legislative act which become effective at the same time should be harmonized, if reasonably possible.

2. A statutory construction that creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the act and will carry out the intent of the Legislature.

3. P. L. 1492 requires a recognizance on all writs of summons or attachment requiring a person to appear and answer before any court.

4. Justice of the Peace courts are courts of record.

5. A recognizance to "answer the damages, if judgment is rendered against him" required by P. L. 1492 refers solely to taxable costs.

6. The phrase "sufficient security * * * (to) answer the damages" in P. L. 1492 has the same legal effect as "security for the costs of prosecution" in P. L. 1458.

7. P. L. 1492 prescribes that a writ of summons or attachment shall not issue unless security is given, that security shall be given by way of recognizance, and that a minute of recognizance shall be made upon the writ.

8. P. L. 1458 concerns actions returnable before a justice and merely requires that the justice shall take security before issuing a writ, but does not direct how it shall be given or that it be minuted on the writ.

9. P. L. 1492 and P. L. 1458 can be harmonized only by holding that P. L. 1492 controls.

10. P. L. 1492 concluding with "if a writ is otherwise issued, it shall, on motion, abate" is thereby distinguished from P. L. 2114 and the lack of recognizance required becomes merely abatable matter.

11. The defect of omission of the minute of the recognizance of some person other than the plaintiff required by P. L. 1492 is waived if not insisted upon on the return day.

12. The effect of any one adjournment by a justice for more than three months contrary to P. L. 1472 is the same as a continuance for more than thirty days by a substitute justice under P. L. 1464---it continues the case out of court and, unless waived, entitles the defendant to have it dismissed.

13. A justice case for over three months "held open until further notice" was discontinued by P. L. 1472 unless the irregularity was waived.

APPEAL from judgment of a justice of the peace, reversed by the Rutland Municipal Court, Christopher A. Webber, Judge, June 15, 1940, on motion to dismiss because plaintiff was original recognizance. Other facts appear in the opinion. Affirmed; Jeffords, J., dissenting.

Judgment affirmed.

Vernon J. Loveland and S.E. Evarts (Granville, N.Y.) for the plaintiff.

James E. Sennet and Philip M. M. Phelps for the defendant.

MOULTON C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

SHERBURNE

This suit was commenced before a justice of the peace by a writ made returnable on November 1, 1939, in which the plaintiff himself was recognized for costs. The defendant appeared on the return day, and the plaintiff not appearing the cause was continued by the justice to November 15, 1939. The original record on appeal shows that on November 15, 1939, the cause was continued to March 14, 1940, but an amended record shows that prior to November 15, 1939, the defendant asked to have the cause again continued and held open until further notice, to which the justice agreed and the plaintiff assented, and that thereafter on or about February 29, 1940, on the application of the plaintiff the justice set March 14, 1940, for the hearing, of which the defendant had due personal notice, and that one William Hitt was accepted and noted on the writ as further recognizance for costs. On March 14, 1940, the defendant appeared specially and moved for a dismissal of the writ upon the grounds that there was not a proper recognizance on the writ, and that the cause was continued contrary to law. This motion was overruled, and upon the plaintiff's evidence judgment was entered for the plaintiff. Thereupon the defendant seasonably appealed to the Rutland Municipal Court, where the defendant's renewed motion to dismiss was granted, and judgment was entered in his favor, to all of which the plaintiff excepted.

P. L. 1458 provides that in actions before a justice of the peace such justice shall take security for the costs of prosecution before he issues the writ. P. L. 1492 provides:

"A writ of summons or attachment requiring a person to appear and answer before a court shall not be issued, unless sufficient security is given to the defendant, by way of recognizance, by some person other than the plaintiff, to the satisfaction of the authority signing such writ, that the plaintiff will prosecute his writ to effect, and answer the damages, if judgment is rendered against him; a minute of which recognizance, with the name of the surety and the sum in which he is bound, signed by such authority, shall be made upon the writ at the time it is issued; and, if a writ is otherwise issued, it shall, on motion, abate."

These two sections are parts of the same act and took effect at the same time, and hence it is our duty to harmonize them if it can be done reasonably. In other words, a construction that creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the act, and will carry out the intention of the Legislature. Richford Savings Bank and Trust Co. v. Thomas et al., decided at this term, 111 Vt. 393, 17 A.2d 239; Anderson v. Souliere, 103 Vt. 10, 151 A. 509; Brace v. Hulett, 109 Vt. 360, 366, 196 A. 742.

By its terms sec. 1492 applies to all writs of summons or attachment requiring a person to appear and answer before any court. Justices' courts in this State are courts of record. Stone v. Proctor, 2 D. Chip. 108, 113. The words in sec. 1492 "and answer the damages, if judgment is rendered against him", have reference solely to the taxable costs established by law. Closson v. Staples, 42 Vt. 209, 220, 1 Am. Rep. 316. Consequently the words "sufficient security * * * that the plaintiff will prosecute his writ to effect, and answer the damages, if judgment is rendered against him", as used in sec. 1492, have the same legal effect as the words "security for the costs of prosecution", as used in sec. 1458. Sec. 1492 is more definite in prescribing that a writ shall not issue unless security is given, that security shall be given by way of recognizance, and that a minute of such recognizance shall be made upon the writ, while sec. 1458 merely says that the justice shall take security before issuing the writ, and does not say how such security shall be given and says nothing about minuting it on the writ. The only way we can reasonably harmonize these two sections is to hold that sec. 1492 controls. This does no violence to the plain words of sec. 1458 and carries out the intention of the Legislature.

The defendant contends that the defect in the recognizance, the giving of security by the plaintiff rather than some third person, makes the writ void, so that the defect cannot be waived, and places this writ in class 1 of void process, as given in Howe v. Lisbon Savings Bank & Trust Co., 111 Vt. 201, 14 A.2d 3, 6, which issues in violation of a statute prohibiting it, and cites Holden v. Campbell, 101 Vt. 474, 144 A. 455, and Ford v. Smead, 109 Vt. 129, 194 A. 369. These were petitions under chapter 92 of the Public Laws, section 2114 of which provides that such a petition shall not issue unless security is given in a certain manner.

If for no other reason, P. L. 1492 is distinguishable from P. L 2114 in that sec. 1492 concludes with these words: "if a writ is otherwise issued, it shall, on motion, abate." This takes away a part of the force of the prohibition and makes the defect merely abatable matter, so that process defective in this respect goes into class 2 of void process as given in Howe v. Lisbon Saving Bank & Trust Co., supra. This is illustrated by Huntley v. Henry, 37 Vt. 165, where the writ was not signed by either the clerk or a magistrate as required by law, and it was held to be a matter of abatement which could be waived. The time when such defect must be taken advantage of in justice court is illustrated by Wheelock v. Sears, 19 Vt. 559, an action for a penalty, where the statute, as in P. L. 2458, 2459, provided that the clerk or magistrate signing the writ shall enter upon it a minute of the day, month and year when the same was signed, and that a writ on which such minute is not made shall, on motion, be dismissed. It was held that the objection to the lack of such a minute upon the writ, like any ordinary matter of abatement, if not insisted upon at the earliest opportunity, in that case the return day of the writ, was waived. See, also, Pollard v. Wilder, 17 Vt. 48. In Sisco v. Hurlburt, 17 Vt. 118, and Monti v. Thorington, 98 Vt. 22, ...