Wheelock v. Sears

The opinion of the court was delivered by Davis, J.

This action was originally commenced before a justice of the peace, and came into the county court by appeal. It was brought by the plaintiff, as the party aggrieved, to recover a penalty of ten fold for taking illegal fees as a deputy sheriff, and was made returnable April 11, 1845. No minute of the day, month and year, when the writ was signed, was entered upon it, by the magistrate, at the time of signing; but on the return day of the writ a minute, in the usual form, was entered on the back thereof, asserting that it *562 was exhibited to and signed by him on the twenty-second day of March, 1845. It appears by the justice’s records, copies of which were filed in the county court, that, on the 21st of April, the case came on for trial before the magistrate, and at this time a motion was made by the defendant to dismiss the case, on the ground that the requisite minute was not made at the time of signing, — which motion was overruled, and the defendant was ordered to answer over. On entering the case in the county court the motion to dismiss was renewed, and that court ordered the suit to be dismissed, to which decision the plaintiff excepts. Several questions have been made in argument.

1. It is insisted, that this action is not for a penalty, or forfeiture, and so is not comprehended in any section of chapter fifty-seven of the Revised Statutes, and does not, consequently, come within thq purview of section nine, requiring a minute to be made. The cases cited from Massachusetts simply show, that actions, in which double or treble damages may be recovered, are not, in their courts, regarded as penal actions. We have no doubt whatever, but that our statute, — Revised Statutes, chap. 106, sec. 16, — is to be regarded as a penal statute, and, as such, is embraced in section six of chapter fifty-seven, limiting the time, within which actions may be brought, to four years.

2. It is farther contended, that the statute does not, in terms, require the minute to be made at the time of signing the writ; but that, if made subsequently, it will satisfy the law. This proposition, however, we are satisfied cannot be sustained. The eighth section says, when any bill, complaint, &c., shall be exhibited, in any cases referred to, the clerk or magistrate, to whom it shall be exhibited, shall, at the time of exhibiting, make a minute, &c. In the ninth section the language is, when any action shall be commenced, the clerk or magistrate, signing the writ, shall enter upon it a true minute, &c. This is no less explicit, than the preceding section, as to the time when the minute is required to be made.

3. A farther position is taken by the plaintiff’s counsel, in opposition to the motion to dismiss, which we are satisfied, upon consideration, must be sustained. It is, that the motion was not seasonably interposed, and that the objection, like any ordinary matter in. abatement, if not insisted upon at the earliest opportunity, is *563 waived. The motion to dismiss the action should have been made at the return day of the writ, which was, as already stated, the 11th day of April, provided the defendant had legal notice of the suit,— as we understand in the argument was the fact, although the copies, with which we are furnished, omit the service of the writ altogether.

It has been insisted by the defendant’s counsel, that the copies filed with the clerk contain no evidence of any continuance of the case from the 11th of April to the twenty-first of April, nor any explanation of the cause or manner of the postponement. This is true. But however it may have occurred, whether by a regular continuance, or by mutual consent, treating the latter day, instead of the former, as the return day, the result would be the same, unless there were an express reservation of the right to insist on this dilatory matter, — which does not appear and is not pretended.

The defendant’s counsel have farther insisted, that the court have no means of ascertaining at what time the motion to dismiss was originally made, inasmuch as the justice’s records are not specially referred to. as a part of the case in the bill of exceptions. No such reference was necessary. These records, as well as the writ, service, pleadings, &c., are always to be treated as a part of the case, when it comes into this court on exceptions.. Other documents and writings, used on the trial as matters of evidence, must be specially referred to and made a part of the case, or they will not be noticed.

In favor of the position, that an objection of this sort is treated like any ordinary matter in abatement, in respect to the time of urging it, the case of Pollard v. Wilder, 17 Vt. 48 , affords a decisive authority. That case cannot be distinguished from the present. In the ease of Montpelier v. Andrews, 16 Vt. 604 , the objection was seasonably taken; a circumstance evidently regarded as material.

The defendant, therefore, in this case, when he filed his motion to dismiss before the magistrate, had lost the right to avail himself of this matter, which, if seasonably brought forward, would have constituted a good defence to the plaintiff’s action. The judgment of the county court must therefore be reversed, and the cause be remanded for trial.