# Roddy v. Estate of Fitzgerald > Supreme Court of Vermont · February 1, 1944 · 113 Vt. 472 URL: https://www.frixlaw.com/law-library/cases/3989033 ## Case - **Full name:** W.F. Roddy v. Estate of Walter J. Fitzgerald. - **Court:** Supreme Court of Vermont - **Decided:** February 1, 1944 - **Citations:** 113 Vt. 472; 35 A.2d 668; 1944 Vt. LEXIS 105 - **Precedential status:** Published - **Opinion:** Dissent by Jeffoeds - **Judges:** Jeffoeds, Moulton, Sherburne, Buttles, Sturtevant, Jeffords - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3989033 ## Opinion text Jeffoeds, J: (dissenting) I do not agree with the holding of the majority that the defect in the appeal was one which could not be waived. As shown in the majority opinion, the question here is one of jurisdiction of the process. See also Mack v. Lewis, 67 Vt 383, 31 A 888, wherein a defect in an appeal was considered as a defect of process. This being so, the question is then, in which one of the classes of defective process set forth in Howe v. Lisbon Sav. Bank, 111 Vt 201, 14 A2d 3, does the case fall. I doubt whether it could properly come within the voidable class. It certainly does not come within the first class of void process as the statute here in question (P. L. 3006) is not a prohibitory one. In my opinion the case comes within the second class of void process as set forth and illustrated by the cases on page 209 et seq. of the Howe case. That is to say, we have here process which fails to comply substantially with statutory requirements. Probably this process was not amendable but the defect in it could be waived and thus the jurisdictional obstacle to the court’s functioning removed. See the Howe case at page 213. The appeal was taken to the court having jurisdiction of the subject matter of the appeal. The only defect claimed is the taking of the appeal to what was, in effect, a stated term of that court. It does not seem reasonable to me that the Legislature intended that such a defect could not be waived. Nothing in the language of the statute compels or reasonably leads one to the conclusion of such intention, as the wording of the statute is neither mandatory nor prohibitory. It seems more reasonable to me, if an appellee entered his general appearance in such a case as this and thus said, in effect, I am willing to overlook the defect in the process and try the case on its merits, that the Legislature intended the appellee could so waive his right to take advantage of the defect and that he would be bound by the waiver. The fundamental rule in construing statutes is to ascertain and give effect to the intention of *478 the Legislature. In re Walker Est., 112 Vt 148, 151, 22 A2d 183 . In my opinion the situation here is analogous to that in several of the cases included in the second class of void process which are set forth in the Howe case. Possibly the one nearest in point is that of Perry v. Perry, 94 Vt 487, 111 A 632, 634. In that case the citation did not state tlie time the petitionee was required to appear, but did state that she should appear before the Windsor County Court. In the course of the opinion it is said: “If the summons did not give her the required legal notice, the court was without jurisdiction unless she saw fit to waive the defect by a general appearance.” I shall now discuss those cases relied upon by the majority which I think need discussion and attempt to show that they do not support the holding of the majority on the question of waiver. In Probate Court v. Indemnity Ins. Co., 106 Vt 207, 171 A 336, and the two following cases in the opinion, no questions of process were involved as these cases merely had to do with decrees or orders of probate courts. The Walker case, 112 Vt 148, 22 A2d 183 , and the Miles Block case, 96 Vt 526, 121 A 410, are favorable to my view of the matter as they show that all appellate reviews are dependent upon statutes granting them. Thus the rules applying to the construction of process in the matter of probate appeals should be the same as those applying to the construction of process in all other appeals, and indeed, as far as I can perceive, to all process, for, generally speaking, all questions concerning process spring from statutes. In the Essex Storage Electric Company case, 93 Vt 437, 108 A 426, no question of defect of process was involved. In that case an appeal from the public service commission was not filed within the time required by statute. It has been uniformly held that such statutes are mandatory and that unless complied with the court has no jurisdiction of the subject matter. So that case is one of failure or lack of process rather than one of defect of process. It is significant in this respect that this case and others of its kind having to do with the failure to file a bill of exceptions within the required statutory time (Hotel Vermont Co. v. Cosgriff, 89 Vt 173, 94 A 496) do not appear in any of the classes in the Howe case. In the case of Andrew v. Buck, 97 Vt 454, 124 A 74, an appeal *479 was not entered on time. It was held under the authority of Mack v. Lewis, supra, that this defect did not affect the jurisdiction of the appellate court over the subject matter of the suit, and consequently could be waived. In Hodge’s Admr. v. Hodge’s Estate, 90 Vt 214, 97 A 676, no question of process was involved as there the holding was that a probate court had no jurisdiction of the action of account. The majority rely largely on the Howe case but it is of no help to them unless P. L. 3006 prohibits the appeal as taken. The mere fact that the process is in violation of statute and void is not enough if the defect is waivable. Nowhere in the majority opinion is it stated that P. L. 3006 is prohibitive. The nearest the majority come to this is the statement, referring to the statute, “By prescribing a certain method of doing so (taking the appeal) all other methods are excluded and forbidden.” They would say, apparently, that the statute impliedly prohibits the appeal as taken. But in most if not all instances the issuance of process is dependent upon statutory authority. The statutes prescribe what is to be done, and by whom, in order to have valid process issue. So in all cases of process issued under statutes it might equally be said that all other methods in the way of form, signature, etc. are impliedly excluded and forbidden. If such implication were to make the statutes prohibitory within the meaning given to that word in the Howe case, then it would follow that all process defective because it did not comply with the statute, i.e., was issued in violation thereof, was void, and the defect could not be waived. But the Howe case clearly shows that this is not so. There it appears that process may be merely voidable which does not conform to the statute authorizing it. It is also there shown that process issued in violation of statute may be void but the defect waivable, as here. A study of the cases cited and discussed in the Howe case (case, page 209) which are placed in that class where the defects are not waivable discloses that the statutes in question either expressly prohibited the issuance of the process there under consideration or expressly prescribed a condition precedent to the issuance which was not complied with. That is to say, the first class of void process in the Howe case has to do with cases where the issuance of the process is in violation of a statute which expressly prohibits it. *480 Ramsay v. McDonald, 108 Vt 180, 184 A 691, is cited with the Howe case as authority for the statement, “that process which is in violation of law is void and confers no jurisdiction.” All that needs to be said in regard to the Ramsay case, as supporting the majority, is that this case is placed in the Howe case in that class of cases where the process was void but the defect waivable. I believe the present case is to be differentiated from In re Walker Trust Estate, 112 Vt 148, 22 A2d 183 , for the reasons heretofore stated and I would affirm the judgment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3989033. Public record. Not legal advice.