Wilson Bros. Garage v. Tudor

• Decision Date: 15 November 1915
• Citation: 95 A. 794
• Parties: WILSON BROS. GARAGE v. TUDOR.
• Court: Vermont Supreme Court

95 A. 794

WILSON BROS. GARAGE

v. TUDOR.

Supreme Court of Vermont. Windham.

Nov. 15, 1915.

Exceptions from Windham County Court; Fred M. Butler, Judge.

Action by the Wilson Bros. Garage against Ernest Tudor. Judgment for plaintiff, and defendant brings exceptions. Reversed, and suit dismissed.

This is an appeal from the judgment of a justice of the peace in an action of general assumpsit. In the writ the plaintiffs are set up as "A. H. Wilson and C. J. Wilson, partners, doing business under the firm name and style of Wilson Bros. Garage," of Brattleboro, this state. The copies of appeal show that before the justice the defendant pleaded the general issue and set-off, and filed specifications in set-off. On trial judgment was rendered for the plaintiffs. Defendant appealed. The only pleadings filed by the defendant in the county court were three special pleas, the substance of which is that the plaintiff since, to wit, the 1st day of April, 1914, has been and is a copartnership doing business in this state under a name which does not contain the surnames of all copartners or members thereof without any other descriptive or designating words, except the Christian names or initials of such copartners or members, to wit, a copartnership composed of A. H. Wilson and C. J. Wilson, doing business under the firm name and style of Wilson Bros. Garage; that during all said time the plaintiff has been and is a copartnership required by the provisions of No. 117, Acts of 1908, to file returns and pay a registration fee to the commissioner of state taxes for the benefit of the state; that prior to the issuance of the original writ in this suit the plaintiff did not file the returns and pay the registration fee so required; and that the right or obligation which the plaintiff seeks to enforce in this suit accrued since the day and year above named.

The plaintiff moved that these pleas be struck from the record, for that they were filed out of time and out of order. At the hearing on the motion plaintiff expressly waived all objection to the failure to file said pleas within ten days after the time for entering appearance had expired, as required by rule 4 (77 Atl. vi), relating to dilatory pleas, and rule 11 (77 Atl. vii), relating to pleas in bar, but did object on the ground stated in the motion. The court held that these pleas were essentially dilatory, and that the right to take advantage of the matters alleged therein was waived by pleading to the action as shown by the copies of appeal, and accordingly granted the motion to strike them from the files. To this ruling defendant excepted, and the case was set for hearing. Defendant elected to stand upon his exception, whereupon judgment was rendered for the plaintiff to recover the amount of its claim, and costs, to which defendant also excepted.

By Laws 1908, No. 117, §§ 1, 3, a person doing business in this state under any name other than his own, and every copartnership or association of individuals, except corporations, doing business in this state under any name which does not contain the surnames of all copartners or members thereof without any other descriptive or designating words, except the Christian names or initials of such copartners or members, shall within ten days after the commencement of doing business make and file returns in the clerk's office in the town or city wherein the principal place of such business is located setting forth the name under which such business is carried on, the name of the town or city in which it is located, a brief description of the kind of business to be transacted under said name, and the individual names and residences of all persons, copartners, or members so doing business thereunder, and within the same time a like return shall be filed with the commissioner of state taxes. By sections 2 and 3 corporations doing business in this state under any name other than that of the corporation shall be subject to the provisions of this act, and shall file returns within the time specified. By section 5 a person, copartnership, association, or corporation so required to file a return shall at the time of filing it pay to the commissioner of state taxes for the benefit of the state a registration fee of $3. And by section 11 no person, copartnership, association, or corporation subject to this act shall institute any proceedings in this state for the enforcement of any right or obligation thereafter accrued or accruing, unless it shall, prior to the issuance of the original writ or...