Abbadessa v. Tegu, 853
| Decision Date | 03 May 1960 |
| Docket Number | No. 853,853 |
| Citation | 160 A.2d 876,121 Vt. 496 |
| Parties | Leonard J. ABBADESSA v. Peter TEGU and Andrew Tegu. |
| Court | Vermont Supreme Court |
Richardson & Caldbeck, St. Johnsbury, Harvey B. Otterman, Jr., Bradford, for plaintiff.
Witters, Longmoore & Akley, St. Johnsbury, Wilson & Keyser, Chelsea, for defendant.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
The defendants have brought this motion to dismiss the appeal to this Court from the Orange County Court on the ground that the plaintiff failed and omitted to file separate notices of appeal with the clerk of the Supreme Court for Orange County, and the clerk of the Orange County Court, respectively, in accordance with the provisions of 12 V.S.A. § 2382.
The pertinent part of 12 V.S.A. § 2382, upon which the motion of the defendants to dismiss is based, reads as follows:
'In any action or proceeding, civil or criminal, appealable from any court (except a justice court), commission, board, agency or department of the state or any political subdivisions thereof, appeal may be taken by the filing of a notice of appeal as hereinafter set forth with (1) the clerk of the court appealed to and (2) the clerk or register of the tribunal appealed from or the commissioner, as the case may be.'
The provisions of 12 V.S.A. § 2383 relative to such filing is:
'Filing shall consist of delivery by hand or by mailing such notice of appeal to the persons specified in section 2382 of this title.'
The record before us indicates that one notice of appeal was received by O. Fay Allen, Jr. on Feb. 3, 1960. On the jacket of the notice of appeal appear the words: 'Filed, and copies mailed, Feb. 3, 1960, O. Fay Allen, Jr. Clerk.' Because of the provision of 4 V.S.A. § 601, 'Each county clerk shall be clerk of the supreme and county court and court of chancery, for the county,' O. Fay Allen, Jr., is Clerk of both the Orange County Court and of this Court for Orange County. It is his duty to 'make and keep dockets of the causes pending in the respective courts and, at each term of the court, furnish each of the justices or judges with a copy of the docket for such term.' 4 V.S.A. § 602.
It is the defendants' contention here that jurisdiction is lacking because two notices of appeal were not filed with Mr. Allen by the plaintiff in this cause, one such notice with him in his capacity as clerk of this Court for Orange County, and another, an identical notice of appeal, with Mr. Allen in his capacity as clerk of the Orange County Court. The defendants do not state in which of his two capacities Mr. Allen did file the notice of appeal that he received, although it is interesting to note that in a letter from the deputy clerk of the Orange County Court to the clerk of the General Term of this Court, the notice of appeal is among the certified copies of the docket entries of the Orange County Court.
In deciding the question presented to us by the motion to dismiss it is necessary for us to consider the purpose of the statute as intended by the legislature. In the interpretation of statutes the fundamental rule is to ascertain and give effect to the intention of the legislature, and if it can be fairly done, a statute must be construed to accomplish the purpose for which it was intended, and should not be construed so strictly as to defeat its purpose. State v. Severance, 120 Vt. 268, 274, 138 A.2d 425, and cases cited thereunder. Statutes giving and regulating the right of appeal are recognized as remedial in their nature and should receive a liberal construction in furtherance of the right of appeal. Appeal of Maurice, 117 Vt. 264, 268, 90 A.2d 440. In re Walker Trust Estate, 112 Vt. 148, 151, 22 A.2d 183.
There can be no doubt that it was the legislative intent that notice of appeal should be filed with the proper officer of the court or body from whom the appeal is taken, as well as with the designated officer of the reviewing tribunal. Nor can it be doubted that when one person is the clerk of the tribunal appealed from, while another and different person is the clerk of the court of review, that a notice of appeal is...
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United States v. Smith
...That is precisely what petitioner's counsel did in mailing his letter of December 31, 1959. Pet. Ex. XI-A. But cf. Abbadessa v. Tegu, 121 Vt. 496, 160 A.2d 876 (1960). 242 Abbadessa v. Tegu, supra note 243 Pet. Ex. VII, 12 (November 24, 1959). Petitioner's written statement, read by his cou......
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State v. Brown
...granted by the Supreme Court. This notice became filed within the meaning of 12 V.S.A. § 2383 when mailed to the clerk. See Abbadessa v. Tegu, Vt., 160 A.2d 876. The contents of this communication to the clerk of the trial court, confirming the fact that this Court had granted the responden......
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State v. Bartlett
...is to be ascertained, and if a fair and reasonable construction discloses it, the statute is to be given effect. Abbadessa v. Tegu, 121 Vt. 496, 498, 160 A.2d 876; Sorrell v. White, 103 Vt. 277, 280-281, 153 A. There is, of course, a presumption in favor of constitutionality, and the invali......
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Preseault, In re
...of appeal are remedial in nature and should receive a liberal construction in furtherance of the right of appeal. Abbadessa v. Tegu, 121 Vt. 496, 498, 160 A.2d 876 (1960), and cases therein cited. This brings us to the fundamental rule in the construction of statutes which is to ascertain a......