Legal Opinion

Whitcomb v. Rood

Supreme Court of Vermont

Decided December 15, 1847PublishedCited by 17 opinions

In this case, which came to the county court by appeal, the defendant, at the first term, filed a motion to dismiss the suit, and assigned as cause, that the suit was originally commenced before a justice of the peace and was once continued by him; that in the absence of the justice at the day to which it had so been continued, it was again continued by another justice; and that at the day to which it was so continued the defendant appeared and moved to dismiss the suit, for…

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In this case, which came to the county court by appeal, the defendant, at the first term, filed a motion to dismiss the suit, and assigned as cause, that the suit was originally commenced before a justice of the peace and was once continued by him; that in the absence of the justice at the day to which it had so been continued, it was again continued by another justice; and that at the day to which it was so continued the defendant appeared and moved to dismiss the suit, for the reason that it had been so continued by another justice; which motion was overruled and judgment rendered for the…

1Opinion of the Court

The opinion of the court was delivered by

Roves, Ch. J.

It has not been questioned in the argument, but that the defendant might appeal from the judgment against him, without losing the benefit of his motion to dismiss, provided that motion was well founded, when made in the justice court. Indeed, this is *52impliedly admitted by the plaintiff, in his manner of answering the motion, when renewed in the county court. He resisted it solely on the ground, that it was unfounded in law. Hence we have only to determine, whether the action became legally discontinued on the second Tuesday of November, as…

2Cases cited2 opinions

  1. Phelps v. WoodSupreme Court of Vermont · 1837
  2. Steel v. BatesSupreme Court of Vermont · 1829

3Cited by17 opinions

  1. Indiana, Bloomington & Western Railway Co. v. EberleIndiana Supreme Court · 1887
  2. Board of Commissioners v. ConnerIndiana Supreme Court · 1900
  3. Bd. of Com'rs of Creek v. Alexander, St. TreasurerSupreme Court of Oklahoma · 1916
  4. In re Estate of WoolleySupreme Court of Vermont · 1922
  5. Lincoln National Like Insurance v. FischerSupreme Court of Iowa · 1945

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