Columbian Granite Co. v. W. C. Townsend & Co.

52 A. 432, 74 Vt. 183, 1902 Vt. LEXIS 120

Opinion

Taft, C. J.

The defendant undertakes to- impeach the officer’s return, which is good on its face, by a plea in abatement, .which is demurred to-.

Nothing is better settled than, that an officer’s return is conclusive between the parties, except in a proceeding to set it aside. Yatter v. Pitkin & Miller, 72 Vt. 255, 47 Atl. 787. Mr. Gould says that a defendant cannot falsify such a return by plea in abatement, but must resort to his remedy against the officer, if it be false. Gould’s Pl. c. V., s. 135.

In Barr v. Satchwell, 2 Stra. 813, a scire facias was returnable on the general return day, which was Sunday, and. not served till the Monday. On affidavit whereof, Serjeant Whitaker moved to set it aside, the sheriff having returned a sdre feci. Sed per curiam: “If there be a false return, the defendant will have his action against the sheriff. But we will not try the truth of the return on a motion to set aside the proceedings.”

The defendant seeks to avoid this, rule, the plaintiff objecting, by reason of a stipulation) below that “no question, shall be raised as to the form of the plea, but that the question for the court to consider shall be, whether, upon the facts set forth in the plea, there was a service of the writ.” But this cannot be. When the parties go into special pleadings, the rule is universal that they shall be confined strictly to the matters put in issue. Campbell v. Hyde, 1 D. Chip. 65. And when pleadings close in a demurrer, no' fact can be treated as in the case that does not appear from the pleadings and is not admitted by the demurrer, though admitted on hearing. Hartland v. Windsor, 29 Vt. 354. Parties can, of course, submit a case on agreed facts; but those facts must be within the issue, for the court tries only such issues as the parties make by their pleadings. Carpenter v. Welch, 40 Vt. at p. 255.

A demurrer admits only such facts as are well pleaded, and therefore never admits an allegation that the pleadings show the party is estopped to' malee, for such an allegation is not well pleaded. Gould’s PI. c. IX. s. 25. Hence, the facts here alleged in contradiction of the return, not being Well pleaded, are not admitted by the demurrer and cannot be considered.

Judgment affirmed and cause remanded.