Wade v. Wade's Admr.

Munson, J. This is an action of ejectment, brought against both residents and non-residents. The non-resident defendants appeared specially, but without otherwise indicating the purpose of their appearance, and afterwards moved to dismiss the writ because not legally served on them. This motion was not filed within the time allowed for dilatory pleas, and no other appearance having been entered, or further plea filed, the plaintiff .moved for judgment in chief. The court overruled the motion to dismiss, and also the motion for judgment; and plaintiff thereupon requested a trial on the merits, which the court refused. Exceptions were taken to all these rulings. The motion assigns several grounds of dismissal, one of them being a failure to deliver necessary copies. The consideration of this part of the motion will involve all that is necessary for the determination of the case. It appears from the officer’s return that he delivered to the agent but one copy for the four non-resident defendants. The statute required that one be left for each. V. S. 1101, 1109; Hill v. Warren, 54 Vt. 73; Wash-burn v. New York etc. Mining Co., 41 Vt. 50. The defendants contend that this defect entitled them to a dismissal of the writ. [279] It was within the discretion of the court to entertain the motion to dismiss, although filed out of time; for the limitation of the time of filing was but a provision of its rules. But the motion was nevertheless to be.overruled on hearing if not made in season to satisfy the requirements of pleading.. A dilatory objection must be raised at the earliest opportunity, and this cannot be later than the time allowed for dilatory pleadings by the rule of court, in a case governed by the rule. Mack v. Lewis, 67 Vt. 383, 31 Atl. 888. But these defendants insist that they cannot be affected by a rule which is based upon the time limited for entering an appearance, when there was no service that obliged them to obey the writ or charged them with knowledge of its contents. But we think that inasmuch as they appeared in opposition to the writ within the time fixed by the statute, they were bound by the rule of court relating to dilatory pleas. See Mitchell v. Union Life Ins. Co., 45 Me. 104, 71 Am. Dec. 529. Their failure in this respect was a sufficient ground for overruling their motion. But the plaintiff contends that the course taken by defendants’ attorneys enlarged their appearance. Iiis claim of judgment stands vupon the theory that the attorneys’ continuance in court, after the time for filing dilatory pleas had expired without their having taken dilatory action, was an unrestricted appearance. The reasoning in Mack v. Lewis, 67 Vt. 383, 31 Atl. 888, and in Eldred v. Bank, 17 Wall. 545, 21 L. Ed. 685, is relied upon in support of this position. But that reasoning is inapplicable, for the appearances there were general. The question presented here is whether an appearance entered as special afterwards became general. In our practice, the initial appearance is made by entering on the margin of the docket entry of the case the name of the attorney or party appearing. If a restricted appearance is intended, the name must be accompanied by some statement to that effect. If the appearance is properly restricted it will stand as made until some inconsistent action is taken. These defendants entered a special appearance, and we see no ground upon which it can be said that the failure to file their motion seasonably made that appearance general. It was not [280] necessary to state the precise purpose of the appearance on the docket to avoid this result. The mere designation of an appearance as special confines it to dilatory matters, and precludes a presumption of anything further. As there was no appearance, judgment could have been rendered only as on a default. But a default presupposes legal notice, actual or constructive. The plaintiff errs in assuming that knowledge is the same as notice. If this were so there could be no such thing as special appearances, for one could not authorize a special appearance without showing knowledge and so charging himself with notice. The knowledge must be communicated in the prescribed way. For instance, the reading of a summons communicates the knowledge but does not operate as notice. Chase v. Davis, 7 Vt. 476. Nor will the unauthorized delivery of a copy charge the defendant with notice of its contents. Davis v. Richmond, 35 Vt. 419. Personal notice to an absent defendant implies more than casual information of the suit or. of the seizure of his property. It evidently relates to his receiving or learning of the copy that he is entitled to have left for him. See Newton v. Adams, 4 Vt. 437; Whitney v. Silver, 22 Vt. 634; Kidder v. Hadley, 25 Vt. 544; Johnson v. Murphy, 42 Vt. 645; Hawley v. Mead, 52 Vt. 343. So the defendants did nothing that entitled the plaintiff to a judgment or trial. But we have seen that their appearance was one that subjected them to the rules of court applicable to dilatory pleas. Then' the effect of what was done must be determined by those rules and the principles of pleading to which they relate. The consequences which the law attaches to a non-compliance with requirements of this character cannot be avoided by appearing specially, for a limited appearance must bring one within the operation of the principles applicable to the purpose for which he appears. A plaintiff is entitled as of right to the overruling of a motion to dismiss unseasonably filed for any defect that can be waived; and this is on the ground that the defendant’s failure to raise the objection at the earliest opportunity is a waiver of the defect. Martin v Blodget, 1 Aik. 378; Pollard v. Wilder, 17 Vt. 48; Wheelocke v. Sears, 19 Vt. 559; Dow v. School Dist. 46 Vt. 108; Mack v. [281] Lewis, 67 Vt. 383. So the defendants have waived the want of copies, and the case stands the ’ same as if the required copies had been delivered. The property of non-residents cannot be charged without notice, actual qr constructive. The proper delivery of copies for non-resident defendants completes the service of the writ, but does not amount to notice of either kind. The leaving of the copy may result in actual notice, but if this is not shown other notice must be given. The statute provides that in default of prior notice the court shall continue the causé and order notice by publication. V. S. 1644. Jones v. Dillahanty, 68 Vt. 490, 35 Atl. 462. The plaintiff was entitled to such an order after the motion to dismiss had been disposed of, and could doubtless have had it on application. The motions of both parties were properly overruled. Judgment affirmed and cause remanded.