§ 2108 - How prosecuted - Vermont Statutes

§ 2108. How prosecuted

Bonds given to the probate court shall be prosecuted in the superior court of the county in which they were given for the benefit of those injured by the breach of their conditions, in the following manner:

(1) A person claiming to be injured by a breach of the condition of a bond may file a motion for permission to prosecute the same and shall give a bond to the adverse party to the satisfaction of the probate court, on the condition that he or she will prosecute the same to effect and pay the costs awarded if recovery is not obtained;

(2) The probate court shall grant permission to prosecute the bond and on paying the fees, shall furnish to the applicant a certified copy of the bond, with a certificate that leave to prosecute it has been granted, and the name and residence of the applicant;

(3) The applicant shall cause his or her name to be indorsed as prosecutor upon the writ and shall file the copy of the bond and the certificate furnished by the probate court, with the writ, in the superior court to which and when it is returnable; and such applicant shall be deemed to be the prosecutor of such bond;

(4) The complaint on the bond shall definitely assign and set forth the breaches of the conditions on which the prosecutor relies;

(5) The superior court to which the writ is returned shall render judgment, as on nihil dicit, for the penalty of the bond in favor of the probate court and against the defendants or such of them as do not comply with the terms mentioned in subdivision (6) of this section, but costs shall not be taxed on such judgment;

(6) The defendants who may wish to resist such judgment shall, on or before twenty-one days after the service of such writ, plead a general denial, and, with their plea, file their affidavit, stating that they believe or are advised that they did not execute or deliver such bond; or they shall demur to the complaint;

(7) On trial, if the issue on such plea or demurrer is found in favor of the plaintiff, judgment shall be rendered for the penalty of the bond, as mentioned in subdivision (5) of this section, and the prosecutor shall recover against the defendants entering such plea or demurrer the costs occasioned thereby, and forthwith have execution for the same in his or her own name;

(8) When judgment is rendered for the penalty of the bond against all the defendants, the same shall remain in force as security for other breaches of the conditions of the bond, which may be afterwards assigned and proved;

(9) The action shall thereafter proceed and be prosecuted in the name of the prosecutor, on the breaches assigned. Upon prevailing, the prosecutor shall have judgment in his or her own name for damages and costs, but if judgment is rendered for the defendants on an issue joined in such action or on nonsuit, they shall recover double costs against the prosecutor. (Amended 1985, No. 144 (Adj. Sess.), § 95.)