Sargent v. Shepard
Supreme Court of Vermont
Action ok Contract, in which the writ issued as a capias under G. L. 2360. Trial by court in the Hartford Municipal Court, Windsor County, Á. G. Wkitham, Municipal Judge. At the close of plaintiff’s evidence, the defendant rested, and judgment was rendered for the plaintiff.
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Action ok Contract, in which the writ issued as a capias under G. L. 2360. Trial by court in the Hartford Municipal Court, Windsor County, Á. G. Wkitham, Municipal Judge. At the close of plaintiff’s evidence, the defendant rested, and judgment was rendered for the plaintiff. The defendant then filed a motion in arrest of judgment, and to dismiss the writ, “for that no sufficient affidavit was filed with the authority issuing said writ, as required by G. L. 2360.” Motion overuled. The defendant excepted. The opinion states the case.
1Opinion of the CourtPowers, J.
[1-3] In an action on a contract, the writ can issue as a capias only when an affidavit is filed with the authority issuing the same, as provided in G. L. 2360. Without such an affidavit, a writ so issuing is void, and proceedings under it are coram non judice. The defect is not dilatory in character, but is jurisdictional, and the question may be raised at any stage of the proceedings. Wilson Bros. Garage v. Tudor, 89 Vt. 522, 95 Atl. 794, and cases cited. The sufficiency of the affidavit here filed, therefore, is for consideration, though the defendant appeared at the trial below and did…
2Cases cited5 opinions
- McKinstry v. CollinsSupreme Court of Vermont · 1904
- Black v. Minneapolis & St. Louis RailroadSupreme Court of Iowa · 1903
- Wilson Bros. Garage v. TudorSupreme Court of Vermont · 1915
- Clement v. BullensMassachusetts Supreme Judicial Court · 1893
- Davis v. DorrSupreme Court of Vermont · 1858
3Cited by2 opinions
- Ryan v. Orient InsuranceSupreme Court of Vermont · 1923
- American Surety Co. v. PryorSupreme Court of Alabama · 1927