Town of Westminster v. Town of Warren

The opinion of the court was delivered by Ross, J. The statute, R. L. s. 2840, gives to a town aggrieved by “ an' order or warrant of removal ” of a pauper the right to appeal therefrom. It is held in Dorset v. Rutland, 16 Vt. 419, that where the order of removal is not served agreeably to the statute, but instead thereof the warrant, reciting the order, is served by a copy, the return stating that the pauper was unable to be removed, the town on which the service is so made is not bound to regard it, such service being wholly unauthorized by the statute, but where, after the time had expired for serving the order of removal, the paupers are actually removed on another warrant issued on the order of removal, the town to which the paupers are removed can and must protect itself by an appeal from such warrant of removal, or sustain the burden of supporting [524] the paupers removed. That case in principle is identical with and controls this, so far as regards the plaintiff’s second, third and fourth grounds for the motion to dismiss. The defendant’s appeal from the service of the warrant of removal by the removal of the pauper — the only service thereof which was authorized, and which it was bound to regard — was seasonably taken. The preliminary proceedings, resulting in making the order of removal, are strictly ex parte, and do not affect or bind the town to which the paupers are ordered to be removed, until service is made on such town, as directed by the statute. The statute, s. 2835, provides that a copy of the order of removal, certified by the justices making it to be a true copy, shall be served on the overseer of the poor of the town to which the pauper is ordered to be removed, within thirty days after the same is made, unless the pauper is removed within that time. The statutory method of service must be followed to bind the town on which the order is made. But in Dorset v. Rutland, supra, it was held the order was not void, and only voidable, if not served by certified copy within the thirty days, if service was subsequently made by the removal of the pauper on a warrant issued after the thirty days had expired. II. The plaintiff’s first ground for moving to dismiss the appeal is that the defendant has not procured and filed a certified copy of the order of removal. Motions to dismiss are addressed to and reach such defects as are apparent upon the record as it exists when the motion is filed. There is nothing in this record that affirmatively shows that any such order of removal was ever made and drawn up in form by the justices of the peace who issued the warrant of removal. The justice certifying the copies of appeal asserts that the foregoing — which is the warrant of removal with the two officers’ returns thereon, and which recite.d that an order of removal was made Oct. 16, 1880, — “ is a true copy of the original order of removal . . . and the warrant of removal and officers’ return thereon as made by us and as appears by the original files and records,” <fcc. It is not to be presumed or assumed against this certificate that there was among said records an order of removal, other than as recited in the [525] warrant drawn up in form. Nor do the defendant’s pleas, when examined, furnish any aid to this ground of dismissal. One of them denies that any such order as is recited in the warrant was ever made. It is contended by the plaintiff that the maxim, omnia prcesumuntur rite esse aeta prevails in reference to the ex parte proceedings of a town in regard to orders of removal. It has generally been held that no presumptions were to be made in regard to such proceedings so far as they were strictly ex parte. The town to be affected had no opportunity to object to their regularity. They are wholly statutory, in the nature of proceedings in rem, up to the point of making the service required by statute upon the town to be affected adversely by the order, and it is incumbent on the moving town to show a strict compliance with the provisions of the statute in order to make such proceedings binding upon the town affected adversely thereby. . But even if the ordinary presumption of the regularity of judicial proceedings should attach to such proceedings, while strictly ex parte, we do not think it should countervail the legal certificate of the justice of the peace who participated in making the order and warrant of removal. Hence, on the record of the case as made up when 'encountered by the motion to dismiss, we do not think such a failure in filing full copies of the record of the justices issuing the warrant of removal is shown as warranted the County Court in dismissing the appeal. On the service of the warrant of removal by actually removing and leaving the paupers with the defendant town for support, it was under a necessity of taking an appeal, or take the burden of forever supporting the paupers. It was not under an obligation of bringing into the County Court, as copies of the record in the case, what the justice making the record impliedly certified did not exist. ' The judgment of the County Court is reversed, and the cause remanded to be further proceeded with in that court.