Andrew v. Buck

• Decision Date: 08 March 1924
• Citation: 124 A. 74
• Parties: ANDREW v. BUCK.
• Court: Vermont Supreme Court

124 A. 74

ANDREW

v. BUCK.

Supreme Court of Vermont. Bennington.

March 8, 1924.

Exceptions from Bennington County Court; Sherman R. Moulton, Judge.

Action by William Andrew against Maurice Buck. Prom a judgment of the county court dismissing an appeal by defendant from a judgment for plaintiff, defendant appeals. Affirmed.

Argued before WATSON, C. J., and POWERS, TAYLOR, SLACK, and BUTLER, JJ.

Holden & Healy, of Bennington, for appellant.

Collins M. Graves, of Bennington, for appellee.

SLACK, J. The plaintiff obtained judgment against the defendant before a justice of the peace in Bennington county on August 1, 1923, from which the defendant appealed to the county court for that county. The appeal was entered and docketed with the clerk of that court September 11, 1923, without the knowledge or consent of the plaintiff, and on November 6 following the plaintiff not having entered an appearance, the defendant moved for a nonsuit, which, we assume from other facts that appear in the exceptions the clerk entered in accordance with the provision of G. L. 1696. On the first day of the next term of the county court, the plaintiffs attorney, by leave of court, entered a special appearance for the purpose of filing a motion to strike off the nonsuit, and to dismiss the appeal because not entered within the time allowed by statute, and immediately filed such motion. The defendant opposed the motion to strike off the nonsuit on the ground that no affidavit of merit had been filed, and resisted the motion to dismiss, because it was not filed within the time required by the rule—meaning, we assume, county court rule 4. The court struck off the nonsuit, and dismissed the appeal, to all of which the defendant excepted.

G. L. 1693, provides that, except in certain cases, either party may appeal from the judgment of a justice of the peace to the county court, if an appeal is claimed within two hours after the rendition of such judgment.

G. L. 1695, provides that the appellant shall, "on or before twenty-one days from the time of taking an appeal, cause to be entered and docketed with the clerk of the court to which the appeal is taken, certified copies of the original writ, process and record of judgment."

G. L. 1696, provides:

"The appellee shall cause his appearance to be entered with the clerk of the court on or before the expiration of thirty days from the time of taking such appeal. If the appellee does not appear in person or by attorney within such time, the clerk shall, on motion of the appellant, enter a nonsuit in case the plaintiff is appellee, and a default in case the defendant is appellee. At the next regular term, judgment shall be rendered by the court in accordance with such nonsuit or default, but such nonsuit or default may be stricken off on such terms as to costs and the time of filing pleadings as the court directs."

The plaintiff contends that, since the defendant failed to enter his appeal within the time fixed by statute, the county court was without jurisdiction in the matter. If so, jurisdiction could not be conferred by waiver, or even by consent or agreement. Essex Storage Electric Co. v. Victory Lumber Co., 93 Vt. 437, 108 Atl. 426; Hotel Vermont Co. v. Cosgriff, 89 Vt. 173, 94 Atl. 496. These cases are relied upon by the plaintiff in support of his claim. But the statutory provisions upon which the court's jurisdiction depended in those cases are unlike the one before us in the instant case. The former case was a proceeding before the Public Service Commission, from whose final order appeal is taken in the same manner as appeals in chancery (G. L. 5038), namely, by p written motion therefor filed with the clerk within 20 days from the date of the decree appealed from (G. L. 1561). The latter case was a petition for a new trial in an action at law where the exceptant had failed to file his exceptions within the time prescribed by G. L. 2258. These cases hold, and there are others to the same effect, that a motion for an appeal in the one instance, or a bill of exceptions in the other, if filed after the expiration of the time fixed, by statute, is too late to be effective, and that in such case this court is without jurisdiction. If the irregularity here complained of was that the defendant claimed and was allowed an appeal more than two hours after the rendition of the judgment by the justice, these cases would be in point; but such is not the case. Here the appeal was seasonably claimed and allowed—that step was properly perfected. The only defect was failure to...