Culver v. Balch
Supreme Court of Vermont
Indebitatus Assumpsit. The suit was commenced in the county of Windsor. The writ was made returnable to the county court, and was served by Alonzo B. Nutt, an indifferent person, and was directed to him in these words, — “ To Alonzo B. Nutt, an indifferent person, to serve and return.”
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Indebitatus Assumpsit. The suit was commenced in the county of Windsor. The writ was made returnable to the county court, and was served by Alonzo B. Nutt, an indifferent person, and was directed to him in these words, — “ To Alonzo B. Nutt, an indifferent person, to serve and return.” The defendant moved, that the writ be quashed, for the reason that it was not stated in the authorization, that it appeared to the magistrate signing the writ, that no sheriff or constable, authorized by law to serve the writ, could seasonably be had. The defendant also filed three several pleas in abatement.…
1Opinion of the Court
The opinion of the court was delivered by
Kellogg, J.
The motion to dismiss cannot be sustained. It has long been, settled, at least in this state, that a motion to quash can only be sustained in cases, where the ground or matter of abatement is apparent upon the record. If the ground relied upon does not appear by the record, but is extrinsic, it must be pleaded in issuable form, that the opposite party may have an opportunity to traverse. Essex v. Prentiss, 6 Vt. 47. So if the motion be founded upon matter, which does not appear of record, and which it is not necessary should so appear, in…
2Cases cited3 opinions
- Dolbear v. Town of HancockSupreme Court of Vermont · 1847
- Town of Essex v. PrentissSupreme Court of Vermont · 1834
- Jennison v. HapgoodSupreme Court of Vermont · 1827
3Cited by9 opinions
- Tracy v. Grand Trunk Railway Co.Supreme Court of Vermont · 1904
- In Re Estate of EverettSupreme Court of Vermont · 1941
- State v. WardSupreme Court of Vermont · 1887
- Boright v. WilliamsSupreme Court of Vermont · 1913
- State v. EmerySupreme Court of Vermont · 1886
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