Kimball v. Kelton
Supreme Court of Vermont
Petition. Heard by the court, March Term, 1881, Washington County, Taet, J., presiding. On the trial it appeared that the writ mentioned in the petition was made returnable before the justice of the peace who signed it on September 3, 1880; that it was seasonably served on the defendant in that cause by the delivery of a copy by the officer serving it, which copy the defendant gave to his attorney with instructions to attend to the case; that from that copy the defendant’s…
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Petition. Heard by the court, March Term, 1881, Washington County, Taet, J., presiding. On the trial it appeared that the writ mentioned in the petition was made returnable before the justice of the peace who signed it on September 3, 1880; that it was seasonably served on the defendant in that cause by the delivery of a copy by the officer serving it, which copy the defendant gave to his attorney with instructions to attend to the case; that from that copy the defendant’s attorney understood that the writ was returnable on September 10, 1880 ; that on September 3,1880, no appearance was made…
1Opinion of the Court
The opinion of the court was delivered by
Yeazey, J.
This petition is brought under the fraud, accident and mistake statute, so-called, Gen. Sts. c. 38, s. 7, to set aside a judgment of a justice of the peace rendered by default. It is a remedial statute, entitled to be liberally construed, and provides a remedy additional to any existing at the common law. The officer, the agent of the plaintiff in that suit, in serving the writ made the return day wrong in the copy delivered to the then defendant, this petitioner. The default grew out of this mistake. We think it is a plain case where the…
2Cases cited2 opinions
- Mosseaux v. BrighamSupreme Court of Vermont · 1847
- Witherell v. Goss & DelanoSupreme Court of Vermont · 1854
3Cited by2 opinions
- In Re Walker's EstateSupreme Court of Vermont · 1927
- Wellington v. WellingtonSupreme Court of Vermont · 1964