Opinion
Opinion filed October 7, 1930.
Process — Necessity of Signing by Authorized Officials Designation of Officers To Sign Writs — Signing of Writs Returnable in Municipal Court — G.L. 1704 — "Justice of the County" — Statutes — G.L. 1644.
1. Process by which suit is instituted must bear official signature of someone authorized to issue it, otherwise it is fatally defective, and will be dismissed on motion.
2. Legislature has power to say what officers shall be authorized to sign writs and other process.
3. Provision of G.L. 1704 that writs returnable in municipal court may be signed by certain specified officers, means that writs must be so signed.
4. "Justice of the county," one of the officials authorized to sign writs returnable to municipal court, is justice of the peace for county wherein writ is returnable.
5. Statutes which are part of the same act, taking effect at same time, should be harmonized if it can be done reasonably.
6. G.L. 1644, providing that writs returnable to municipal or city court may be signed by a "justice of the peace," means a justice of the county, the same as one referred to in G.L. 1704.
ACTION OF TORT returnable to municipal court of Orleans County, signed by a justice of the peace of Caledonia County. Defendant moved to dismiss process. Hearing before Frank C. Williams, Judge of Orleans County municipal court. Defendant's motion sustained, and process dismissed solely on ground that writ and recognizance were signed by a justice of the peace of Caledonia County. The plaintiff excepted. The opinion states the case. Affirmed.
S.E. Darling, Jr., for the plaintiff.
Lee E. Emerson for the defendant.
Present: POWERS, C.J., SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM, Supr. J.
The plaintiff sued the defendant in an action of tort returnable to the municipal court of Orleans County. The writ was signed by a justice of the peace of Caledonia County. The court below dismissed the suit for that reason, and the plaintiff excepted.
Process, by which a suit is instituted, must bear the official signature of someone authorized to issue the same. Otherwise, it is fatally defective, and, on motion, will be dismissed. Andrus v. Carroll, 35 Vt. 102. It is for the Legislature to say what officers shall be authorized to sign writs and other process, and our Legislature has said in G.L. 1704 that writs returnable to a municipal court may be signed by certain specified officers, including a justice of the county. This means that such writs must be so signed, and the justice referred to is a justice of the peace within and for the county wherein the writ is returnable.
The plaintiff contends that the provision that such writs might be signed by a justice "of the county" was not the work of the General Assembly, but of the commissioners who edited and superintended the publication of the General Laws; who, he says, "tacked on" to G.L. 1704 the words above quoted. He calls attention to G.L. 1644, wherein the provision is that writs returnable to a municipal or city court may be signed by a "justice of the peace" — without limitation. His position is untenable. The proposed revision of the statutes that became the General Laws, was reported to the Senate of 1917 from the joint special committee on the Revision of the Laws, and became Senate Bill No. 146. Section 1604 of that bill became G.L. 1644, and in the respect here involved read precisely as it does in the latter section. Section 1665 of that bill became G.L. 1704, and in the respect named read precisely as it does in the last-named section. An examination of the journals of the General Assembly of 1917 shows that S. 146 passed both houses of the Legislature without amendment in these particulars. So G.L. 1644 and G.L. 1704 are both the work of the Legislature, were parts of the same Act, and took effect at the same time. In these circumstances, it is our duty to harmonize them if it can be done reasonably. The only way we can do this is to hold that G.L. 1644 really means that the justice therein referred to is the same one referred to in both parts of G.L. 1704; namely, a "justice of the county."
Affirmed.