Legal Opinion

Morton v. Webb

Supreme Court of Vermont

Decided January 15, 1835PublishedCited by 13 opinions

This was an action on book, to which the defendant pleaded in abatement, the pendency of a former suit for the same cause of action. To this the plaintiff replied, that the other suit referred to was a trustee or factorizing process, summoning certain persons as the trustees of the defendant, which writ was sued out on the same' day with the' writ in this suit, but not served until after the' service of the writ in this suit. To this replication the defendant demurred.

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This was an action on book, to which the defendant pleaded in abatement, the pendency of a former suit for the same cause of action. To this the plaintiff replied, that the other suit referred to was a trustee or factorizing process, summoning certain persons as the trustees of the defendant, which writ was sued out on the same' day with the' writ in this suit, but not served until after the' service of the writ in this suit. To this replication the defendant demurred. The county court adjudged the replication sufficient,, to which the defendant excepted. The ease was referred to an auditor,…

1Opinion of the Court

The opinion of the court was delivered by

Phelps, J.

— To some purposes the suing out of a writ is deemed 'the commencement of a suit, and to some purposes the service of the writ is the commencement. Still it is considered, under our practice, that a writ is under the absolute control of the plaintiff until served. He may suppress it if he choose, and, in general, no other person can have any interest in it until served. Then indeed it becomes a suit pending, and to some purposes has relation to the impetration of the writ. It follows, that the mere suing out of a writ, the same not being…

2Cited by13 opinions

  1. Barnsdall v. WaltemeyerCourt of Appeals for the Eighth Circuit · 1905
  2. Howland v. Chicago, Rock Island & Pacific Railway Co.Supreme Court of Missouri · 1896
  3. Brice v. StarrWashington Supreme Court · 1916
  4. Converse v. SymmesMassachusetts Supreme Judicial Court · 1813
  5. Hicks v. GleasonSupreme Court of Vermont · 1848

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