Barber v. Chase
| Decision Date | 03 October 1928 |
| Citation | 143 A. 302 |
| Parties | BARBER v. CHASE et al. |
| Court | Vermont Supreme Court |
Original petition for mandamus and prohibition by B. O. Barber directed to Henry Chase and others. Petition dismissed.
Argued before WATSON, C. J., POWERS, MOULTON, and CHASE, JJ., and THOMPSON, Superior Judge.
Fenton, Wing & Morse, of Rutland, for petitioner.
Collin M. Graves, of Bennington, for defendants.
This is a petition for mandamus and prohibition, and is based upon the following facts:
The petitioner was appointed and qualified as administrator of the estate of John Tighe on September 24, 1917. In August, 1918, he filed his final account as such administrator in the probate court for the district of Bennington, and the judge thereof, then Edward C. Bennett, assigned September 21, 1918, as the date for examining and allowing the account, and for decree of the residue to those lawfully entitled to receive it, and ordered that public notice thereof should be given by publishing the order three weeks successively, previous to the day assigned, in the Bennington Evening Banner, a newspaper published in the district. Through an error of the publisher, however, the order was published only twice before the date assigned, once on August 30, 1918, and once on September 3, 1918. So far as appears, this error was not discovered until after this petition had been brought and issue joined. Some time prior to September 21, the petitioner was notified by Judge Bennett that the hearing on the account was postponed, but on a later day the account was examined and allowed, and a decree was signed by Judge Bennett, which recited that:
"Whereas, it appears by the records and files of said court that, after the payment of the debts and funeral charges of said deceased, and the expenses of administration of his estate, there remains in the hands of said administrator personal estate of the value of $798.25, and no person having appeared to claim said residue as an heir or otherwise of the said John Tighe: It is ordered by said court that the said administrator pay said residue into the probate court as the law directs, and said administrator is ordered to pay over and deliver said estate according to said decree."
In pursuance of this order, the petitioner paid over the sum of $798.25 and received a receipt from Judge Bennett. For some reason, the original decree, with the receipt written upon the back of it, was delivered by Judge Bennett to the petitioner, and was not recorded. Judge Bennett deceased shortly before November 12, 1924, on which day the respondent, Henry Chase, was appointed his successor, and who now occupies the office of probate judge for the district of Bennington. What became of the $798.25 we do not know. Beyond the decree and receipt, to which we have referred, there is no record of it.
After Judge Chase took office, his attention was called to the fact that the petitioner's account as administrator of the estate of John Tighe was on file, but no decree was to be found. He therefore assigned April 28, 1925, as the day for examining and allowing the account, and ordered personal notice of the time and place of hearing to be given all parties interested. Personal notice thereof was given to the petitioner, but to no one else. The hearing was continued from time to time, and on November 23, 1925, the petitioner not being present or represented, the account was examined. Judge Chase found that, after payment of the debts and funeral charges and expenses of administration, there remained for distribution the sum of $1,041.65, which sum the petitioner was ordered to pay to the town of Pownal (of which town John Tighe was, at his decease, a bona fide resident), for the use and benefit of the schools of that town, since, according to the decree, the estate had escheated in accordance with the statute. G. L 3420-3422. No appeal was taken from this decree, and the town of Pownal has commenced suit against the petitioner to recover the sum so decreed.
After the petitioner received notice of the hearing from Judge Chase, and before the day when it took place, he went to the probate court and exhibited to him the decree and receipt which he had received from Judge Bennett. He declined to leave the document with the court for filing, saying that it was the only protection he had. Judge Chase took a copy, and at all times thereafter knew of the decree and its contents.
After receiving notice of the decree of November 23, 1925, the petitioner, by his attorney, presented Judge Bennett's decree to Judge Chase, and respondent Blanche L Curtis who was then, and is now, the register of probate, tendered the required fees, and demanded that it should be recorded. The decree was received, and indorsed: But, although subsequent demands were made on petitioner's behalf for its record, Judge Chase has refused to do so, although the decree has remained on file. The petitioner seeks a writ of mandamus to compel Judge Chase and Miss Curtis, the register, to record the Bennett decree, and a writ of prohibition to restrain the town of Pownal and the selectmen thereof from prosecuting their suit against him, based upon the decree of November 23, 1925.
The statute (G. L. 3276) does not prescribe any particular form or manner of notice of the settlement of an administrator's account to be given to interested parties. It provides only that notice shall be given, "and such notice may be given personally to said interested persons, or by public notice, as the court directs." But it is unnecessary to consider the question of the shortage of the published notice in this case, because it is not by the petition and answers made an issue between the petitioner and the respondents Chase and Curtis. The writ of mandamus is sought only as against these. The petition, in the third section thereof, alleges that the notice was caused to be published three times, "to wit, on the 30th day of August, 1918, and the 6th and 13th of September, 1918." In the answer of respondent Chase, he "neither admits nor denies the allegations contained in paragraph 3 of the plaintiff's petition, but leaves the plaintiff to his proof of the same, and respondent Curtis in her answer says:
"That as to the allegations contained in paragraph ***3***of the plaintiff's petition this defendant has no knowledge, and therefore neither admits or denies."
A mandamus proceeding is an action at law, and the complaint, answer and subsequent pleadings are to be governed by the rules of the common law, and must contain in substance the essentials of good pleading in an ordinary action at law. Facts alleged in the complaint, as to which the defendant answers that he neither admits nor denies, but calls upon the petitioner for his proof, are in the eye of the law admitted to be true. Each party directly admits all such traversable allegations on the opposite side as he does not traverse, and under this rule argumentative denials are not enough. To refuse to admit or deny an allegation is, in legal effect, a refusal to answer at all. Clement v. Graham, 78 Vt. 290, 305, 308, 309, 63 A. 146, Ann. Cas. 1913E, 1208.
Cases are tried in court upon the issues joined by the parties. Brown v. Aitken, 90 Vt. 569, 573, 99 A. 265; Powell v. Rockwell, 97 Vt. 528, 530, 124 A. 567; Millignn v. Clogston, 100 Vt. 455, 459, 138 A. 739. They are not to be decided upon an issue outside the pleadings. Dodge Bros. v. C. V. Ry. Co., 92 Vt. 454, 458, 104 A. 873; Smith v. C. V. Ry. Co., 80 Vt. 208, 219, 67 A. 535; Milligan v. Clogston, supra. The admission, by the answer, of a fact alleged in the complaint, is a judicial admission, and binding and conclusive. Oakes v. Buckman, 87 Vt. 187, 190, 88 A. 736; Brown v. Aitken, supra; Salisbury v. Button, 97 Vt. 9, 11, 121 A. 435.
Thus it follows that, so far as the respondents Chase and Curtis are concerned, the decree of Judge Bennett was founded upon sufficient notice, for the publication, as alleged in the petition, has been held to be "public notice," to all persons interested, of the time and place of examining and allowing the account, and making decree of distribution, and sufficient under the provisions of G. L. 3276. In re Warner's Estate, 98 Vt. 254, 261, 127 A. 362, and cases therein cited.
The town of Pownal and the selectmen thereof have not, in their answer, admitted the truth of paragraph 3 of the complaint, but have expressly denied it. A writ of prohibition, not one of mandamus, is sought against them. But such a writ lies to prevent the unlawful assumption of jurisdiction of a cause, or of a collateral matter incidental thereto, by an inferior court, as is fully explained in Bullard v. Thorpe, 66 Vt. 599, 601, 30 A. 36, 25 L. R. A. 605, 44 Am. St. Rep. 867, Wilkins v. Stiles, 75 Vt 42, 47, 52 A. 1048, 98 Am. St. Rep. 804. and Leonard v. Willcox (Vt.) 142 A. 762, 766. There is no claim or suggestion that the court to which the selectmen have brought their suit against the petitioner has not jurisdiction over the cause, and so the writ of prohibition is not appropriate to the situation before us.
The reason for the discrepancy between the sum of $798.25, ordered by Judge Bennett to be paid into court, and that of $1,052.25, for which Judge Chase held the petitioner chargeable, clearly appears by the latter's account as administrator, and by the order of Judge Chase thereon. On September 24, 1917, the petitioner paid "probate court, inheritance tax, etc., $254.00," and on December 19, 1917, he paid "probate court, for investment $500.00." The latter item was evidently included in the order of Judge Bennett that he should pay the residue of $798,25 into court, because the account, after deducting the two items above mentioned, showed a balance of $298.25. Judge Chase disallowed the items of $254 and $500, and treated the balance of $298.25 as an asset in the hands of the...
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