Opinion
Opinion filed October 5, 1937.
Process Essential — No Jurisdiction without Process — Petition for New Trial Dismissed for Insufficiency of Recognizance under P.L. 2114.
1. A court cannot function without process.
2. Without process, a court is without jurisdiction to proceed.
3. Where recognizance attached to petition for new trial was conditioned only for payment of costs and prosecution of petition, process was void and petition should have been dismissed, since provisions of P.L. 2114 require that such recognizance also be conditioned for payment of intervening damages.
ACTION OF CONTRACT to recover for damages occasioned by alleged breach of contract in failing to procure collision insurance on automobile sold by defendant to plaintiff. Trial by jury in Hartford municipal court, A.G. Witham, Municipal Judge, presiding. Verdict for the plaintiff and judgment thereon. The defendant filed a petition for a new trial on the ground of newly discovered evidence. The plaintiff moved to dismiss the petition on the ground that the recognizance attached thereto was insufficient, and on other grounds. Motion overruled and petition for new trial granted. The plaintiff excepted. The opinion states the case. Judgment granting new trial reversed, and petition therefor dismissed with costs.
Stanley L. Chamberlain for the plaintiff.
Fred B. Thomas and Alban J. Parker for the defendant.
Present: POWERS, C.J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.
The plaintiff obtained a judgment against the defendant in the Hartford municipal court. The defendant then filed a petition for a new trial, which the plaintiff moved to dismiss. This motion was overruled and a new trial granted. The plaintiff excepted.
P.L. 2114 provides that a petition for a new trial shall not issue until the proper court has taken a recognizance to the adverse party conditioned that "if the petitioner fails to prosecute his petition to effect or finally to recover in such action, he will pay the adverse party the intervening damages and costs accruing by reason of such petition."
The recognizance attached to this petition is conditioned only for costs and the prosecution of the petition. There is no condition in it, express or implied, for the payment of intervening damages.
A court cannot function without process. Without it, the court is without jurisdiction to proceed.
This process issued in violation of the positive and peremptory prohibition of the statute as above quoted. It is absolutely void, and should have been dismissed. Holden v. Campbell, 101 Vt. 474, 475, is conclusive of the question here presented. That case involved a recognizance required by P.L. 2114. It secured costs, but not intervening damages. We held that it was void and dismissed the petition to which it was attached.
Judgment granting a new trial reversed, and the petition therefor dismissed with costs.