Hamilton v. Wilder

Barrett, J. I. In the first place, we think Green, at the time the trustee process was served, was the agent of these plaintiffs under the statute of 1854. He was duly appointed by them [699] in March, 1856. He thenceforward continued to act for them in that capacity. His appointment was not revoked by them. They continued to treat him as their agent under the statute, down to the time said trustee process was served. It will not do, as against all this, to hold that because the plaintiffs did not renew the certificate in January, 1857, according to the terms of the statute, this agency ceased by operation of law. We therefore deem the service of the trustee process legal and valid. II. In the next place, we think there,is no ground for doubt, either upon the obvious purpose and policy of the statute, or upon its express provisions, that the service of the process had “ the same effect as though personal service of said process had been made upon such trustees.” If personal service had been made, they would have had personal notice. The service upon the agent, being the same in effect as service on the trustees, must be held to be the same as personal notice. The design of the statute is to make the agent the representative of the personal presence of his principals for the purpose of the service of process, and the delivery of a*copy to him, tantamount to the delivery of a copy to them. He is their agent in this behalf, and they take the hazard of his faithfulness in giving them information of the service of the process. As they did not appear, it was proper, so far as the matter of the service was concerned, to take the default against them. III. But it is objected that, as the official relation of the three railroad trustees was joint, and they were made the subject of the process in that relation, the fact that Henry was not served with the process, nor embraced in the judgment, renders that judgment void as against the two plaintiffs in this suit. We are unable to yield to this view. Probably the non-service on Henry might have been interposed by the other two against the rendering of a judgment against them, if they had seen fit to appear and take the objection in a proper mode. But as they did not appear before the justice, we think there is no warrant of law for holding that non-service to be such an irregularity as to render the judgment and the execution void, and proper to be reached and controlled by audita querela. IV. The execution is rather an awkward document, and quite [700] obnoxious to criticism ; yet, we do not deem it so defective as to be void. It may, by a warrantable charity, be regarded as answering the requirements of the law, and it is clear that the defendants are in no jeopardy of being oppressed by it beyond their liability on the judgment set forth in its recital. The intent to set forth a judgment against Hamilton and Morris, as the trustees of Osgood, is manifest on its face. It seems to us allowable, both by the laws of grammar, as well as of legal intendment, to supply the word “ against” in the recital next before the name of Alexander Hamilton. If so done, the recital of the judgment would then be strictly according to the fact, viz: that it was against Osgood, and against Hamilton and Morris as the trustees of said Osgood. By thus supplying the word “ against,” the names of Hamilton and Morris become separated from that of Osgood, and the word “debtors” would then be grammatically applicable to Hamilton and Morris, and would describe them truly in their character, relatively to Wilder under' the judgment; for they become debtors by virtue of the judgment, in the strict legal sense; Chandler v. Warren, 30 Vt. 510. In this view the word “ debtors” in the precept of the execution, would have the same meaning and application as in the recital, and would confine the precept to Hamilton and Morris alone. The judgment of the county court is affirmed.