Bennett Estate v. Travelers Ins. Co., No. 293-79

• Docket Nº: No. 293-79
• Citation: 413 A.2d 1208, 138 Vt. 189
• Case Date: February 28, 1980
• Court: United States State Supreme Court of Vermont

Page 1208

413 A.2d 1208 138 Vt. 189 Victor A. BENNETT ESTATE, Margaret B. Bennett and Duncan Y.
Bennett, Administrators
v.
TRAVELERS INSURANCE CO. No. 293-79. Supreme Court of Vermont. Feb. 28, 1980.
Motion for Reargument Denied April 8, 1980.

[138 Vt. 190] Bloomer & Bloomer, Rutland, for plaintiffs.

Miller, Norton & Cleary, Rutland, for defendant.

Before [138 Vt. 189] BARNEY, C. J., DALEY and HILL, JJ., SMITH, J. (Ret.), and AMIDON, Superior Judge, Specially Assigned.

[138 Vt. 190] DALEY, Justice.

This is an appeal from an order that dismissed plaintiffs' action on the ground that it is based on an invalid judgment order. The judgment order in question, a

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default judgment dated January 20, 1974, awarded plaintiffs' decedent, Victor A. Bennett, damages for injuries sustained in a collision against the driver of the other car. Subsequently, alleging that the driver was insolvent, plaintiffs' decedent, later replaced by plaintiffs, brought this action upon the 1974 judgment against the driver's insurer. See 8 V.S.A. § 4203(3). At a hearing in chambers on the later action, the superior court, acting sua sponte, objected to the 1974 judgment on the ground that it was based on findings and conclusions signed by the presiding judge, but not by either assistant judge. Acting on the court's remarks, defendant made an oral motion to dismiss. The court granted the motion, and this appeal followed. We reverse.

Under former practice, a judgment valid on its face could not be challenged by a demurrer. Ferry v. Miltimore Elastic Steel Car Wheel Co., 71 Vt. 457, 462, 45 A. 1035, 1036 (1899). A motion to dismiss that challenges the sufficiency of the complaint is akin to a demurrer in that it admits all facts well pleaded, and cannot be supported by extrinsic evidence. [138 Vt. 191] Drinkwine v. State, 129 Vt. 152, 152, 274 A.2d 485, 486 (1970); Rothberg v. Olenik, 128 Vt. 295, 296, 262 A.2d 461, 462 (1970). With the advent of the Vermont Rules of Civil Procedure in 1971, however, it became possible to support a motion to dismiss with extrinsic evidence by converting it into a motion for summary judgment. V.R.C.P. 12(b) ¹; see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1364, at 664-73, and § 1366, at 675 (1969). "The element that triggers the conversion is a challenge to the sufficiency of the pleader's claim supported by extra-pleading material." 5 C. Wright & A. Miller, supra, § 1366, at 676.

In this case, immediately before ruling on defendant's motion to dismiss, the court took judicial notice of the contents of the file in the 1974 case. This action is...