Bennett Estate v. Travelers Ins. Co., No. 442-80

• Docket Nº: No. 442-80
• Citation: 140 Vt. 339, 438 A.2d 380
• Case Date: November 03, 1981
• Court: United States State Supreme Court of Vermont

Page 380

438 A.2d 380 140 Vt. 339 Victor A. BENNETT ESTATE, Margaret B. Bennett and Duncan Y.
Bennett, Administrators,
v.
TRAVELERS INSURANCE COMPANY. No. 442-80. Supreme Court of Vermont. Nov. 3, 1981.

Page 381

[140 Vt. 341] Bloomer & Bloomer, Rutland, for plaintiffs.

Smith, Harlow & Liccardi, Rutland, for defendant.

Before [140 Vt. 339] BARNEY, C. J., HILL and PECK, JJ., and LARROW and SMITH, JJ. (Ret.), Specially Assigned.

[140 Vt. 341] PECK, Justice.

It has been said that "he must have patience who to law will go." R. Dodsley, Pain and Patience (1745). This has been especially true for the parties to this appeal. Although the litigation has not progressed beyond the stage of discovery, it is now before this Court for the second time.

This appeal results from the collision of automobiles driven by plaintiff Bennett, now deceased, and a motorist insured by defendant Travelers Insurance Company. Plaintiff brought suit against the driver of the other vehicle, and on January 20, 1974, a default judgment was entered by the then Bennington County Court. A hearing on damages was held before the presiding judge and two assistant judges. V.R.C.P. 55(b)(3). It was at this point that the uneventful course of the proceedings turned abruptly into controversy.

On January 22, 1974, the trial court, although not requested or required to returned findings of fact and conclusions of law on the issue of damages. The order contained lines for the signatures of three judges but was signed only by the presiding judge. A formal judgment order incorporating the findings was filed on January 30, 1974. Again, only the presiding judge signed the judgment order.

Subsequently, plaintiff brought the present action seeking to enforce the 1974 judgment directly against defendant Travelers pursuant to 8 V.S.A. § 4203(3). ¹ Defendant moved to dismiss[140 Vt. 342] plaintiff's action on the ground that the 1974 judgment order was invalid because it and the findings were signed only by the presiding judge. The trial court agreed and granted defendant's motion. On appeal we held the dismissal to be premature and remanded the case for further proceedings. Bennett Estate v. Travelers Insurance Co., 138 Vt. 189, 413 A.2d 1208 (1980).

On remand defendant once again moved to dismiss plaintiff's action on the ground that the 1974 judgment order was invalid. The trial court properly treated the motion as one for summary judgment, as materials outside the pleadings were submitted by the parties. ² V.R.C.P. 12(b), 56(e). The court, although agreeing with defendant's argument, denied the motion because it concluded defendant did not have standing to collaterally attack the 1974 judgment. Defendant requested permission to appeal prior to final judgment, V.R.A.P. 5(b), and the trial court certified the following controlling question of law:

Can the defendant in this case, who is being sued on a judgment in a companion case, to which it was not a party ... collaterally attack that judgment when that Court had jurisdiction over the persons and the subject matter, and the presiding judge and the two assistant judges heard the evidence, but only the presiding judge signed the findings of fact and conclusions of law, and only the presiding judge signed the judgment, and the judgment was never appealed or amended?

The trial judge, in his formulation of the certified question, correctly notes that defendant's attack on the 1974 judgment is a

Page 382

collateral one. A collateral attack is "one questioning the validity of a judgment in a proceeding which is not brought for the purpose of modifying, setting aside, vacating or enjoining the judgment." Burlington Data Processing, Inc. [140 Vt. 343] v. Automated Medical Systems, Inc., 492 F.Supp. 821, 822 (D.Vt.1980).

It is firmly established that judgments that appear to have been regularly obtained are conclusive upon parties and privies, and cannot be collaterally attacked. Santerre v....