Whitcomb v. Rood

The opinion of the court was delivered by Roves, Ch. J. It has not been questioned in the argument, but that the defendant might appeal from the judgment against him, without losing the benefit of his motion to dismiss, provided that motion was well founded, when made in the justice court. Indeed, this is [52] impliedly admitted by the plaintiff, in his manner of answering the motion, when renewed in the county court. He resisted it solely on the ground, that it was unfounded in law. Hence we have only to determine, whether the action became legally discontinued on the second Tuesday of November, as the motion assumes. If the 19th and 20th sections of the present statute are to be understood with no reference to the constructions which had been given to previous enactments, they can certainly be made to sustain the act of Justice Bishop in continuing the suit. But when terms or modes of expression are employed in a new statute, which had acquired a definite meaning and application in a previous statute on the same subject, or one analogous to it, they are generally supposed to be used in the same sense; and in settling the construction of such new statute, regard should be had to the known and established interpretation of the old. By the statute of 1803 no court could be appointed to be holden before a justice, for the trial of any civil cause, or action, at an earlier hour than nine o’clock in the forenoon, nor at a later than six in the afternoon; nor was any default to be taken, “until two hours after the time set for trial.” And it was long since decided, and settled, that the latter clause related exclusively to the time set for trial in the process, and not to any time set or appointed by adjournment of the suit. Steele v. Bates, 2 Vt. 320. The statute of 1832 embraced the identical subject matter of legislation, to which the present 19th and 20th sections are devoted. It was there provided, that when any civil process should be served, returnable before a justice, “and at the time appointed for the trial ” such justice should be unable to attend, another justice might continue the suit. And it was soon after held, in Phelps et al. v. Wood, 9 Vt. 399, that the “time appointed for the trial” was the time appointed in the writ; and that the power of another justice to continue the suit could only be exercised at that time. To this has succeeded the present enactment in the 19th section, that — “ Whenever, at the time and * place appointed for the trial of any civil suit before a justice, such ‘justice shall be unable to attend, any other justice may continue ‘ the cause ” &c. And the question is, whether the time set for trial, or appointed for the trial, which, under the previous statutes, had uniformly been held to mean the time set or appointed in the [53] writ,was designed, by the language here recited, to receive a more extended meaning. It is urged, that, without the enlarged construction claimed by the plaintiff, the 20th section is rendered needless, which provides that — “No suit shall be more than once continued, except by the ‘ justice by whom it is to be tried.” But the same objection was applicable under the statute of 1832; for that provided — “ that said ‘ cause shall not be continued by such justice more .than once, nor for a longer period of time than thirty days.” Indeed, these two sections of the present statute are substantially a repetition of the corresponding provisions in the statute of 1832, omitting the mention of process having been served, and substituting the expression “whenever” &c. And although the use of this expression might, perhaps, induce the court to construe “ the time appointed for the trial ” as applicable to a time appointed by adjournment of the suit, were we now called for the first time to settle the import of these words, yet, as they had a more restricted meaning under previous statutes, from which they have been adopted into the present act, we do not feel warranted in saying that any new meaning was intended to be given them. We therefore take the word “whenever” to mean in all cases which should need the intervention of another justice, as it was allowed under the preceding statute. Judgment of county court affirmed.