Kittredge v. Fairbanks Co.
Kittredge v. Fairbanks Co.
Opinion of the Court
The writ in this suit commanded the officer to attach the goods of “The Fairbanks Company, a corporation existing and doing business under and by virtue of law, and having its principal office in the City of Boston, in the State of Massachusetts.” The service of the writ, according to the return as originally made, was by attaching as the property of the defendant a gasoline engine located on certain described premises in the village of Orleans, and leaving a copy of the writ in the town clerk’s office in the town of Barton, and delivering a copy for the defendant to John Willis of Newport in the county of Orleans, “a resident agent of said defendant.” The defendant appeared specially by its attorney, and moved to dismiss the cause on the ground that the court had no jurisdiction of the defendant, for the reason that the service on it was not in the manner prescribed by the statute. The motion was overruled pro forma, and the' defendant excepted. The court thereupon allowed the officer to amend his return according to the fact, and it was amended by entering therein after the words ! ‘ a resident agent of said defendant, ’ ’ the words ‘ ‘ for want of a designated service-of-proeess agent of said defendant within this State. ’ ’ The defendant then filed another motion to dismiss, on the grounds stated in the first motion, and this motion was overruled, and an exception taken.
The court could properly permit an amendment of the return after overruling, the first motion, and we pass at once to a consideration of the case as it stands with the return amended. The plaintiff’s argument is based upon the claim that the writ sets up the defendant as a foreign corporation. The defendant claims that there is nothing in the writ to show whether the defendant is a foreign or a domestic corporation, nor what its business is, and therefore nothing by which to tesj; the sufficiency of the service; and claims further that the return fails to show a valid service on the defendant, whatever its classification.
The plaintiff supports his claim by a reference to P. S. 1444, and apparently relies upon some statutory provision, not cited, relating to a service-of-proeess agent. P. S. 1444 relates to the service of judicial writs upon non-residents, and has no
The classification of a corporation as domestic or foreign depends upon whether it was organized under the laws of this State or of another state. P. S. 27. We think the statement that the defendant has its principal office in the City of Boston in the State of Massachusetts prima facie establishes its status as that of a foreign and non-resident corporation. The provision for “holding” personal property without removal by lodging a copy in the town clerk’s office, contained in P. S. 1452, pertains both to individuals and corporations, and in the ease of corporations, to both domestic and foreign. It is only when the officer proceeds to complete the service of the process by the delivery of a copy of the attachment and summons that the statutory requirements differ.
The defendant is sued as a corporation, and is given a description prima facie sufficient. When the defect complained of is one that may be cured by amendment, the defendant is not entitled to have the writ dismissed, as against a subsequent motion for leave to amend. Bent v. Bent, 43 Vt. 42, 47. We think the difficulty here is one that can be obviated by a further
Judgment overruling the motion to dismiss affirmed, and cause remanded.
Reference
- Full Case Name
- E. H. Kittredge v. The Fairbanks Company
- Cited By
- 1 case
- Status
- Published