Reynolds v. Conway
Supreme Court of Vermont
■3. So, where upon a motion to dismiss, certain facts, not apparent .upon the record, were found and considered by the County Court, this court will presume that they came into the case by agreement, as they might, it not appearing to the contrary, and will not reverse the case for that reason. This was an action in general assumpsit.
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■3. So, where upon a motion to dismiss, certain facts, not apparent .upon the record, were found and considered by the County Court, this court will presume that they came into the case by agreement, as they might, it not appearing to the contrary, and will not reverse the case for that reason. This was an action in general assumpsit. The writ issued as a ■capias, the plaintiff having filed an affidavit that the defendant was about to remove from the State, and was served by arresting the said defendant. The defendant, by his attorney, filed two motions ; ■first, that the service of the writ…
1Opinion of the Court
The opinion of the court was delivered by
Veazey, J.
The plaintiff relies upon the well settled rule in this State that a motion to dismiss or quash is confined to cases where the defect is apparent upon-the face of the record, or papers, on inspection. That which requires proof aliunde musk be presented by plea in abatement upon which an issue can be formed. Rob. Vt. Dig. p. 533.
The motions in this cause were not adapted to the case because they depend upon facts outside the papers. No proof aliunde was admissible. Yet the bill of exceptions states that the County Court found certain facts…
2Cited by3 opinions
- Foster's Exrs. v. DickersonSupreme Court of Vermont · 1891
- Champlain Realty Co. v. Town of BrattleboroSupreme Court of Vermont · 1923
- Fitzpatrick v. TaberSupreme Court of Vermont · 1925