Vail v. Rowell

53 Vt. 109

• Court: Supreme Court of Vermont
• Decided: October 15, 1880
• Status: Published

Opinion

The opinion of the court was delivered by

Powers, J.

Hibbard being a minor could not legally serve the plaintiff’s writ. Harvey v. Hall, 22 Vt. 211.

If Hibbard’s return of service had been endorsed upon the wi'it on its return day, opportunity would have existed for a plea in abatement for his defective service. But at that time the only service shown by the process was a legal service made by the sheriff. Nothing therefore pleadable in abatement on this score existed.

The endorsement of Hibbard’s return after the judgment of the justice, and after the appeal therefrom to the County Court, gave the plaintiff no better standing than he had before. The justice had no power to permit the endorsement of this return, as the record had then gone beyond his control, and no pretence is made that the County Court authorized it. It seems to have got on to the process during its journey from one court to the other, probably through the negligence of the “ carrier.” "

The return then cannot be held to validate the service of Hibbard, on any theory that a plea in abatement was not seasonably interposed. Proof, showing the time when it was endorsed upon the writ, was properly received ; and upon such proof the return should be held as having no effect, — as having no place on the record. The assignment to Barnes, the claimant, is found to be bona fide and legal, and we think should be upheld.

The judgment is reversed, and judgment rendered that the claimant recover the funds in the hands of the trustee with cost, and that the trustee be discharged.