Town of Whitingham v. Town of Wardsboro

The opinion of the court was delivered by Redfield, J. The sufficiency of service of the order of removal, is the only question reserved in the exceptions. What purports to be the return on the order of removal, is signed by “ D. W. Yeaw, deputy sheriff,” and states that he “ served the order and citation on Josiah Higgins, the overseer of the poor of Wardsboro, by leaving a true and attested copy of the same at his house, in the hands of Wales Willard, he being a person of suitable discretion with whom to leave the same.” It does not appear that the copy was left at Higgins’s “ last and usual place of abode.” He might have owned several houses, and lived in [501] neither. The copy was left with Wales Willard, but it is not stated that he was “ then resident therein.” There is no statement that such copy had “ this return thereon endorsed ;” or any return whatever endorsed. The return may be true, and the copy have been left at a house where the overseer never lived ; with a stranger — a mere traveler, on his way out of town, and the paper have had no return whatever endorsed upon it. The return omits some of the substantial requirements of the statute, and does not show service of the order upon the defendant town, as required by statute. The order of removal is ex parte, but, if served, and unappealed from, concludes the settlement of the pauper as between the parties. Poultney v. Sandgate, 85 Vt. 150. No judgment is valid against any one, unless he had the opportunity of hearing and contesting it. He must have notice, or such as the law deems notice. The reasons for notice are quite as imperative in this class of cases, as in the service of the warning-out process. In the latter cases, such service would be entirely invalid. Reading v. Rockingham, 2 Aik. 272. And in Poultney v. Sandgate, supra, Peck, J., maintains that the return stating the service to have been made in compliance with the statute (though the person into whose hands the copy was delivered — “ resident therein, and of sufficient discretion ” — did not deliver it to the overseer), must be held effectual service, though there was no actual notice, because the return states every necessary fact to constitute legal service : thus impliedly admitting that without such return, the proceedings would be inoperative. The defective return is fatal to the proceedings. The facts found by the court upon parol testimony, if the admission of such testimony was error, were post-mortem blows, and here worked, to the party, no legal injury. Judgment affirmed.