Beam v. Fish

• Decision Date: 01 May 1934
• Citation: 172 A. 617,106 Vt. 219
• Parties: LUCY BEAM, b/n/f v. HERBERT FISH
• Court: Vermont Supreme Court

172 A. 617

106 Vt. 219

LUCY BEAM, b/n/f v. HERBERT FISH

Supreme Court of Vermont

May 1, 1934

Special Term at Rutland, November, 1933.

Bills of Exceptions, Construction of---Statutory Requirements as to Signing and Filing Bills of Exceptions Mandatory---G.L 2258---"Presiding Judge"---Lack of Authority of Superior Judge Presiding at Trial of Cause at One Term of County Court To Sign Bill of Exceptions to Second Judgment in Same Cause at Term at Which He Did Not Preside---Evidence---Judicial Notice---Insufficiency of Bill of Exceptions Signed after Statutory Time To Give Jurisdiction to Supreme Court---Dismissal of Bill of Exceptions Showing Lack of Jurisdiction of Supreme Court on Its Own Motion.

1.Supreme Court must construe bills of exceptions strictly, but reasonably, against excepting party.

2.Provisions of G. L. 2258 that exceptions to opinion of county court on question of law arising on trial of civil cause shall be signed by presiding judge and filed with clerk within thirty days after rising of court are mandatory, and compliance therewith is necessary to give Supreme Court jurisdiction.

3.Requirement of G. L. 2258 that bill of exceptions shall be signed by "presiding judge," means judge who presided at trial of which review is sought.

4.Superior judge presiding at March Term, 1932, of certain county court was without power to sign bill of exceptions to second judgment in same cause entered at March Term, 1933, of such county court, at which he was not presiding judge and with which entry he had had nothing to do.

5.Supreme Court cannot take judicial notice of day of final adjournment of county court in particular county, time thereof not being fixed by law, but may take such notice that it adjourned more than thirty days before certain date because of fact that two other terms of same court had intervened.

6.Bill of exceptions signed by superior judge, who presided at term at which second judgment in cause was entered but not at trial of cause, and not filed until statutory time after final adjournment of such term had elapsed, held ineffective to give Supreme Court jurisdiction.

7.Where bill of exceptions was signed by presiding judge of county court after statutory time had elapsed, so that Supreme Court was without jurisdiction, latter Court will act on its own motion to dismiss exceptions.

ACTION OF TORT.Plea, general issue.Exceptions from a previous trial of this cause were dismissed for the reasons stated in opinion therein, 105 Vt. 96, 163 A. 591.At the March Term 1933, Rutland County, Buttles, J., presiding, plaintiff discontinued her action as to one Dansro, who was also defendant in preceding trial, and a second judgment was entered, without a trial, in favor of defendant Fish.The plaintiff excepted.The opinion states the facts in case.Heard in Supreme Court on motion to dismiss exceptions.

Exceptions dismissed.

Novak Bloomer & Spero for the plaintiff.

Jones & Jones and G. M. Goddard for the defendant.

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

OPINION

MOULTON

This is a motion by the defendant to dismissthe plaintiff's exceptions.The cause was tried at the March Term, 1932Rutland countycourt, Judge Davis presiding.There were two defendants, Fish and Dansro.A verdict was directed for Fish, and the cause was continued as to Dansro, and passed to this Court upon exceptions by the plaintiff.It was heard at the Special Term at Rutland, November, 1932, and at the General Term in January, 1933, the exceptions were dismissed for the reasons given in the opinion, 105 Vt. 96, 163 A. 591.At the March Term, 1933, Rutland County, Judge Buttles presiding, the plaintiff discontinued her action as against Dansro, and another judgment was entered in favor of Fish, to which the plaintiff excepted.On July 13, 1933, a bill of exceptions was filed, signed by Judge Davis as presiding judge of the March Term, 1932.On January 30, 1934, and after this motion had been argued before us, another bill of exceptions, signed by Judge Buttles as presiding judge of the March Term, 1933, was filed.Both bills attempt to bring before us the questions raised upon the trial in 1932, for in each of them reference is made to the record and transcript of that trial.It appears, construing the bills, as we must, strictly but reasonably against the excepting party( Poulin v. Graham, 102 Vt. 307, 310, 147 A. 698;Higgins v. Metzger, 101 Vt. 285, 298, 143 A. 394;Hanley v. Town of Poultney, 100 Vt. 172, 174, 135 A. 713, 54 A.L.R. 371;St. Albans Granite Co. v. Elwell & Co., 88 Vt. 479, 483, 92 A. 974;Stoddard v. Ins. Co., 75 Vt. 253, 257, 54 A. 284), that the second judgment was entered without a trial and...