Wilson Bros. Garage v. Tudor

Watson, J. The three pleas filed in the county court, even' though they be said to contain matters only in abatement, severally concluded by praying judgment if the plaintiff ought to have or maintain its aforesaid action, and therefore they were [525] pleas in bar. Williams’s Notes, 2 Saund. 209c; 1 Chit. Pl. 460; Lyman v. Central Vermont R. R. Co., 59 Vt. 167, 10 Atl. 346. Yet, as will be seen, the ruling that those pleas were dilatory in character was not of as much consequence as the further ruling in connection therewith, that the right to take advantage of the matters alleged therein was waived by pleading to the action before the justice. There can be no doubt that the plaintiff partnership falls within the provisions of the Act of 1908, requiring returns to be filed and registration fees to be paid,. At the time of the hearing on the motion to strike these pleas from the record, it was conceded that the plaintiff did not comply with the provisions of that Act prior to the issuance of the original writ in this ease. Whether the pleas were in abatement or in bar, they served to bring the matter of- the copartnership’s noncomplianee with this statute, to the attention of the court, and the fact of such noncompliance being conceded, it conclusively appeared that the issuance of the original writ was in direct violation of the peremptory terms of section eleven of that Act; and consequently that the writ was void, and the court without jurisdiction of the process. Jurisdiction of the process is as essential as jurisdiction of the subject-matter. It was not a mere irregularity which is waived if advantage thereof not taken according to ’the rules governing dilatory pleadings; it was a complete defect in the proceedings which could not be waived by the adverse party. Tidd’s Pr. *515; Perkin v. Proctor, 2 Wils. 382; Parsons v. Loyd, 3 Wils. 341; Hussey v. Wilson, 5 Term Rep. 254; Taylor v. Phillips, 3 East. 155; Wickham v. Mealing, 2 Price, 9; Osborne v. Taylor, 1 Chit. Rep. 400; Grumon v. Raymond, 1 Conn. 40, 6 Am. Dec. 200. In Goodwin v. Parry, 4 Term Rep. 577, where the words of the statute, 27 Geo. 3, c. 1, were positive that no process should be sued out to enforce the penalty mentioned, until an affidavit had been first duly made and filed, and no affidavit was so made and filed, it was held that the defendants could not waive the objections, and that the writ must be quashed. To the same effect in principle are the holdings in this State. By P. S. 2081, no person who is a resident of any of the United States, shall be arrested or imprisoned on mesne process issued on a contract, etc.; but by section 2082, if the plaintiff, his agent or attorney, praying out a writ on contract, files with the authority issuing the writ an affidavit stating that he' has good [526] reason to believe and does believe that the defendant is about to abscond or remove from the State, etc., such writ may issue against and be served upon the body of the defendant. Under this statute it is held that a magistrate has no jurisdiction to issue a writ on a contract, against the body of the defendant, unless an affidavit be first filed, answering the requirements of the latter section; that a writ so issuing without such affidavit being first filed, is void, and the court has no jurisdiction of the process; and that the objection is not of a dilatory character which is waived by failure of defendant to take advantage of it at the earliest opportunity, — he may raise the question at any stage of the proceeding. Aiken v. Richardson, 15 Vt. 500; Muzzy v. Howard, 42 Vt. 23; Adams v. Whitcomb, 46 Vt. 708; Pike v. McCullin, 66 Vt. 121, 28 Atl. 876. Since the justice had no jurisdiction of the process, the whole proceeding is coram non judice, and a mere nullity. Judgment reversed, and judgment that the suit be dismissed for want of jurisdiction. Lei the defendant recover his costs.