Alice St. Pierre v. George Beauregard

• Citation: 152 A. 914,103 Vt. 258
• Parties: ALICE ST. PIERRE v. GEORGE BEAUREGARD
• Decision Date: 07 January 1931
• Court: Vermont Supreme Court

152 A. 914

103 Vt. 258

ALICE ST. PIERRE v. GEORGE BEAUREGARD

Supreme Court of Vermont

January 7, 1931

October Term, 1930.

Bastardy Proceedings---Judgment and Order---G. L. 3616---Presumption Parties Stipulating as to Judgment and Order Referred to Statutory Judgment and Order---Recognizance Specified in G L. 3617 Mandatory---Courts---Amendment of Records---Discretion of Court---Mistake or Accident Not Fault of Party as Ground for Exercise of Discretion To Amend Record---Correcting Error at Subsequent Term of County Court---Failure of Court To Exercise Discretion of Motion To Amend Record---Judgment on Recognizance and Execution---Notice to Surety.

1. Only order and judgment court can enter in bastardy proceedings is that provided by G. L. 3616.

2. It will be presumed that parties to bastardy proceeding stipulating amount and manner of payments to be made by defendant to plaintiff and that court might enter judgment and order "for that amount to be paid as above stipulated," referred to judgment and order specified in G. L. 3616.

3. Provision of G. L. 3617, that person adjudged father of child in bastardy proceedings shall enter into recognizance before court as therein provided, is mandatory.

4. County court, within certain limits, has incidental power independent of statute, to revise and correct its records and, if necessary, to order case to be brought forward after final judgment, vacate judgment, and open case for further proceedings, and may do this at subsequent term.

5. Power of county court to revise and correct its records is addressed solely to its discretion.

6. In amending record, court has right to act upon ground of mistake or accident not arising from neglect or fault of party.

7. Where parties to bastardy proceeding in stipulating as to judgment intended court should render judgment provided by statute, but by mistake or inadvertence of court, and without fault or neglect of plaintiff, judgment rendered failed to conform to statute, error is one which may be corrected by amendment, at subsequent term, court having discretionary power to grant or refuse relief prayed for.

8. Failure of court to exercise its discretion, in overruling motion to amend judgment in bastardy proceedings to conform with statute, held error.

9. Where judgment in bastardy proceedings, while irregular, when considered with stipulation of parties to which it referred, was specific as to amount of several payments to be made by defendant and dates when due, judgment comes within terms of recognizance taken before justice of the peace, and plaintiff was entitled to have judgment on same and execution issued as provided by G. L. 3619, provided statutory notice was given.

10. Where record did not show that surety in bastardy proceeding had been given twelve days notice required by G. L. 3619, Supreme Court cannot say that lower court erred in overruling motion for execution to be issued on recognizance.

BASTARDY PROCEEDING. The parties stipulated as to amount and manner of payments to be made by defendant to plaintiff and that judgment and order might be entered thereon, and judgment that plaintiff recover of defendant amounts named in stipulation was rendered by court at the September Term, 1928, Orleans County, Willcox, J., presiding. At the March Term, 1930, Orleans County, Sherman, J., presiding, plaintiff filed motions praying that case be brought forward; that a capias issue to bring defendant before court to show why he should not be ordered to pay as ordered at the September Term, 1928; that he be required to give a suitable recognizance to make payments as ordered in record at said September Term, or be confined in jail until recognizance was given; that judgment be amended to conform to G. L. 3616, 3617; and that an execution issue against defendant and his surety who recognized before the justice of the peace. The motions were severally overruled as matter of law. The plaintiff excepted.

Judgment reversed, and cause remanded.

E. A. Cook for the plaintiff.

Lee E. Emerson for the defendant.

Present: POWERS, C. J. SLACK, MOULTON, WILLCOX, and THOMPSON, JJ.

OPINION

THOMPSON

This is a bastardy proceeding. It appears from the record that at the September Term, 1928, the parties stipulated and agreed "that the defendant shall pay to the plaintiff One Hundred Dollars on or before ten days from date, that he will pay her One Hundred Dollars each year thereafter for four years making Five Hundred Dollars to be paid in full settlement of the case and that the court may enter judgment and order for that amount to be paid as above stipulated." It further appears from the record "And such proceedings were had that the court ordered and adjudged that the plaintiff recover of the defendant the amounts named in the said stipulation." The defendant paid the first one hundred dollars, but has not paid anything since then.

The plaintiff brought her motion to the March Term, 1930, praying that the case be brought forward, and that a capias issue to bring the defendant before the court to show cause why he should not be ordered to pay as ordered at the September Term, 1928, to give a suitable recognizance to pay the payments as ordered in the record of said September Term, or be confined in jail until such recognizance is given.

The plaintiff filed another motion praying that the court amend the judgment so that it would conform to the provisions of G. L. 3616, 3617, relating to judgment in bastardy cases; and also another motion praying for an execution against the defendant and his surety who recognized before the justice of the peace.

The case was brought forward, and the three motions were severally overruled as matter of law; and the plaintiff took and was allowed an exception to the overruling of each motion.

G. L 3616 provides that if the judgment of the court on trial is that the defendant is guilty, he shall be adjudged to be the father of the child, and shall stand charged with its support, with the assistance of the mother, in such manner and proportion as the court judges proper. G. L. 3617...