Legal Opinion

Howard v. Walker

Supreme Court of Vermont

Decided November 15, 1866PublishedCited by 1 opinion

Assumpsit. The defendants filed a motion to dismiss, and also a plea in abatement. The plaintiff demurred to the motion and plea. The court, at the Orange County, January Term, 1866, Peck, J., presiding, pro forma, decided the motion and plea sufficient, and that the writ abate, — to which the plaintiff excepted.

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Assumpsit. The defendants filed a motion to dismiss, and also a plea in abatement. The plaintiff demurred to the motion and plea. The court, at the Orange County, January Term, 1866, Peck, J., presiding, pro forma, decided the motion and plea sufficient, and that the writ abate, — to which the plaintiff excepted. The writ and deputation thereon were referred to in the exceptions “ if properly a part of the case,” but the plaintiff insisted that they were not part of the plea or motion, and could not be referred to in determining the sufficiency of the same, and that they ought not to be…

1Opinion of the Court

The opinion of the court was delivered by

WilsON, J.

The motion to dismiss assigns as a reason for dismissing the action that the writ purports to have been served by S. 33. Darling, an authorized person, and by no other person or officer; that it does not appear that Darling was in any wise authorized to serve the writ, and it avers that the defendants have never accepted service. If the defect complained of is a total want of authority in the person who undertook to serve the writ it may be taken advantage of upon motion to dismiss. In Bliss v. Connecticut & Passumsic Rivers Railroad Company,…

2Cases cited2 opinions

  1. Bliss v. Connecticut & Pas. Rivers RailroadSupreme Court of Vermont · 1852
  2. Washburn v. HammondSupreme Court of Vermont · 1853

3Cited by1 opinion

  1. Hayden v. Caledonia National BankSupreme Court of Vermont · 1942

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