Howe v. Lisbon Savings Bank & Trust Co.

On Motion for Reargument.

Defendants Lisbon Manufacturing Company, Hoskins, Hallett, Long, McCarten, Harry A. Ronan, Piper and Willard have filed a motion for reargument as to certain matters set forth in the opinion, viz:

"Those defendants who were not served with process and appeared specially and filed notice that they appeared for the purpose only of moving to dismiss the action for want of service upon them, have waived the right to file such motion, this not having been done within the- time allowed for dilatory pleadings, Boright v. Williams, 87 Vt. 245 , 88 Atl. 735 ; Wade v. Wade’s Admr. 81 Vt. 275 , 69 Atl. 826 ; Murphy v. Punt, 107 Vt. 421 at 423, 424 , 180 Atl. 886 . These defendants, as well as the others *216 who appeared specially only, and excepting those who entered general appearances, are before the court upon the special appearances entered by them.”

These defendants insist, 1, that their motion to dismiss the action having been found to be without merit, they now have the right to plead lack of proper and legal service upon them; and 2, that no questions as to appearances were before us for consideration.

In support of their first question, defendants call our attention to the order in which dilatory pleas, when used, must be advanced, viz:

I To the jurisdiction of the court.

II To the disability of the person,

1. of the plaintiff, and

2. of the defendant.

III To the count or declaration.

IV To the writ, viz.,

1. To the form of it, and

2. To the action of it.

In considering this first question, we should have in mind that while each and all of these dilatory pleas are sometimes referred to as “jurisdictional” because if the circumstances are such that a defendant is successful in his use of any of them, as to him, the court is without authority to proceed to a determination of the action, yet, strictly speaking, only those included under class 1 of the foregoing list are “pleas to the jurisdiction.” For the form and substance of such pleas see Gould’s Pleadings, 4th Ed., ch. V, secs. 13 to 30 inc.; 49 C. J. 228, sec. 270; also, see Kenney et al. v. Howard, 67 Vt. 375 at 379, 380 , 31 Atl. 850 .

In their former motion defendants sought to have the action dismissed and stated as grounds therefor: ‘ ‘ The pretended writ, * * * does not mention the court to which it is returnable or the place of appearance, as required by law * * *_ > > Thig was a motion to dismiss based upon abatable matter, viz., defects that were apparent upon the face of the writ. Therefore, it must be placed under class IV of dilatory pleas or motions. Gould’s Pleadings, 4th ed., ch. V., secs. 132 and 133. A plea, or motion, raising questions as to lack of proper service *217 also falls within this same class. Gould’s Pleadings, 4th ed., ch. V., sec. 135; 1 C. J. 111, sec. 171 and 1 C. J. S., Abatement and Revival, 127, sec. 87.

After a dilatory plea, or motion, has been overruled, no second plea, or motion,, of the same kind or class can be admitted. Gould’s Pleadings, 4th ed., ch. V., sec. 3; Boright v. Williams, supra, at pages 246 and 247.

As to what is stated in the opinion as to appearances, it should be noted that plaintiff. contended that those defendants who entered specially only by their conduct made such appearances become general. Both plaintiff and defendants briefed this question thus presenting the same for our consideration and hence the holding in the opinion to the effect that those defendants who appeared specially only are before the court on the special appearances entered by them, i. e., such appearances have not become general.

Motion for reargument denied. Let full entry go down.