Beam v. Fish

• Decision Date: 04 January 1933
• Citation: 163 A. 591
• Court: Vermont Supreme Court
• Parties: BEAM v. FISH et al.

163 A. 591

BEAM

v. FISH et al.

Supreme Court of Vermont. Rutland.

Jan. 4, 1933.

Exceptions from Rutland County Court; Deane C. Davis, Judge.

Action by Lucy Beam, by next friend, against Herbert W. Fish and another. A verdict was directed for defendant named, whereupon the case was continued as to bis codefendant and the jury discharged, and, judgment having been entered on the directed verdict, plaintiff brings exceptions.

Exceptions dismissed.

Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

Novak & Bloomer, of Rutland, for plaintiff.

Jones & Jones, of Rutland (Seymour P. Edgerton, of Boston, Mass., of counsel), for defendant Fish.

MOULTON, J.

In this case three defendants were sued as joint tort-feasors. The action was discontinued as to one of them, and went to trial before a jury against the other two. At the close of the evidence, a verdict was directed in favor of the defendant Fish, and the plaintiff excepted. The case was thereupon continued as to the remaining defendant, Dansro, and the jury discharged. Judgment was entered upon the directed verdict, and the plaintiff has prosecuted his exceptions to this court.

No question is presented for review. Except when the county court, in its discretion, may pass a case to the Supreme Court before final judgment, under G. L. 2262, exceptions are not to be allowed until a judgment has been entered in the trial court which Is final in the sense that the case is so far ended that, if no exceptions have been taken, it will go out of court. Hayes v. Stewart, 23 Vt. 622, 625. The whole proceeding must be perfected below and a judgment rendered upon which execution may issue, before it can be brought before this court. Gage v. Ladd, 6 Vt. 174,176. Such a judgment is like a decree in chancery, which, to be appealable, must dispose of the merits of the case and settle the rights of the parties under the issues made by the pleadings. Nelson v. Brown, 59 Vt. 600, 601, 10 A. 721. "A final judgment or decree from which an appeal may be taken must dispose of the whole controversy presented to the court, and must adjudicate the rights of all the parties to the suit." American Fidelity Co. of Montpelier v. East Ohio Sewer Pipe Co. et al. (Ind. App.) 101 N. E. 101. Such a judgment is not subject to review in the appellate court where the rights of one or more of the parties have not been adjudicated and the proceeding, as to them, is still pending below. Enmeier v. Blaize (Ind. Sup.) 179 N. E. 783, 784; Daegling v. Strauss, 59 Ind. App. 672, 109 N. E. 920, 921; Chicago & W. I. R. Co. v. City of Chicago, 294 Ill. 257, 128 N. E. 462, 463, 461; Dreyer v. Goldy, 171 Ill. 434, 49 N. E. 560; Bush v. Leach (C. C. A. 2d Circuit) 22 F.(2d) 296; Hohorst v. Hamburg-American Packet Co., 148 U. S. 262, 13 S. Ct. 590, 37 L. Ed. 443, 444, 445; Bowles v. City of Richmond, 147 Va. 720, 129 S. E. 489, 490, 133 S. E. 593; Karabacek v. Richards, 249 Mo. 608,155 S. W. 777, 778; Continental Trust Co. v. Peterson, 76 Neb. 411, 107 N. W. 786, 110 N. W. 316, 317; Amarillo, etc., Corp. v. Ellis (Tex. Civ. App.) 10 S.W.(2d) 733, 734; Erwin v. Black (Tex. Civ. App.) 249 S. W. 1113, 1114; Dabney Oil Co. v. Providence Oil Co., 29 Cal. App. 251, 155 P. 114, 115; Toleikis v. Austin, 197 Mich. 333, 165 N. W. 971; Dickerson v. Western Union Tel. Co., 1111 Miss. 264, 71 So. 385, 386.

It is true that, under G. L. 2262, the county court may, in its discretion, pass exceptions to this court before final judgment Nothing to the contrary appearing, we will assume that the trial court has undertaken to act under this statute. Ryan v. Barrett (Vt.) 162 A. 793, 794; Hannah v. Hannah, 96 Vt. 469, 472, 120 A. 886. But the discretion therein mentioned is judicial, not absolute. It is recognized in Hannah v. Hannah, supra, that the case must be a proper one for the application of the statutory provision. It has been considered applicable to a ruling upon a motion for a mistrial (Ryan v. Barrett, supra), to a ruling upon a motion to set aside the verdict, made before judgment (Hannah v. Hannah, supra), and to a ruling upon a demurrer to the plea of one of two defendants (Austin v. Belknap, 54 Vt. 495, 498). But we conceive that the discretion of the county court does not extend to the situation presented by the record in the instant case, where the trial upon the merits has been interrupted without an adjudication of the rights of one...