Graves v. Severens
Supreme Court of Vermont
Trespass on the Case. After the declaration the writ proceeded in the usual form of a summons to Joseph Smith, trustee, &c. It was served upon the principal defendant as an attachment, but no service was made, or attempted to be made, on the trustee.
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Trespass on the Case. After the declaration the writ proceeded in the usual form of a summons to Joseph Smith, trustee, &c. It was served upon the principal defendant as an attachment, but no service was made, or attempted to be made, on the trustee. Upon motion of the defendant’s counsel to dismiss the suit, on the ground that the action was ex delicto and was commenced by trustee process, the court at the April Term, 1864, Barrett, J., presiding, pro forma sustained the motion, and adjudged that the suit be dismissed, — to which the plaintiff excepted.
1Opinion of the CourtKellogg, J.
We have no doubt that this action is, both in form and substance, an action ex delicto, and that, as it is not an action “ founded on any contract,” it could not be “ commenced by the trustee process,” under the provisions of the statute. (G. S., p, 305, § 1.) The writ was served on the defendant as an ordinary writ of attachment, but no service was made, or attempted to be made, on the trustee named in it. We do not think that a suit should be regarded as “ commenced by the trustee process,” unless that process is used to bring the trustee into court as a party to the suit. No service having…
2Cases cited4 opinions
- Bowman v. StowellSupreme Court of Vermont · 1849
- Ferris v. FerrisSupreme Court of Vermont · 1853
- Langdon v. DyerSupreme Court of Vermont · 1841
- Brewer v. StorySupreme Court of Vermont · 1828