Blair v. Ritchie

• Citation: 73 Vt. 109,50 A. 807
• Court: United States State Supreme Court of Vermont
• Decision Date: 13 February 1901
• Parties: BLAIR v. RITCHIE et al.

50 A. 807

73 Vt. 109

BLAIR

v. RITCHIE et al.

Supreme Court of Vermont. Caledonia.

Feb. 13, 1901.

Appeal in chancery, Caledonia county; Taft Chancellor.

Suit by George P. Blair, assignee, against Ritchie & Warden. From a decree rendered in accordance with the mandate of the supreme court (72 Vt. 311, 47 Atl. 1074), defendants appeal. Affirmed.

Argued before TYLER, MUNSON, START, and WATSON, JJ.

Bates, May & Simonds, for orator.

Dunnett & Slack, for defendants.

MUNSON, J. This case was originally heard in the court of chancery upon the report of a master, and was heard in the supreme court on appeal, and was remanded, with a mandate directing a decree for the orator. The defendants thereupon filed a petition in the court of chancery, alleging a misapprehension affecting the management of their case before the master and the subsequent discovery of further evidence, and praying that the report of the master be recommitted for further hearing and additional findings. That court held that it had no power to recommit the report, and entered a decree for the orator in accordance with the mandate; and the case is now before us upon an appeal from this decree.

Our statute provides that a case finally de termined in the court of chancery may be taken by appeal to the supreme court; that that court shall hear and determine such appeal, and affirm, reverse, or alter the decree, as justice requires; that the proceedings, with the judgment, decree, or order of the supreme court therein, shall then be remanded to the court of chancery; and that such proceedings shall be had in the court of chancery "as may be necessary to carry such judgment, decree or order into effect." V. S. §§ 681, 984, 985. In Gale v. Butler, 35 Vt. 451, it is said: "The notion that on the remand of a case from the supreme court the power and duty of a chancellor over the case is a mere ministerial one, to register the mandate of the supreme court, and that he has no other, is quite too narrow. It is his duty to conform his decree to the judgment of the supreme court, so far as they have adjudged; but if no direction has been given as to an incident of the decree, like the costs, it is his duty to determine it." The opinion then proceeds: "So, if in his judgment justice requires that some further proceeding should be allowed in the case, it is within his power to allow it to be had, as was decided by this court at the last general term, in Barker v. Railroad Co." The decision referred to was not reported, but the nature of the further proceeding therein approved can be gathered from Barker v. Belknap's Estate, 27 Vt 700, and from the remark in the digest that the chancellor acted upon the intimation given by Judge Redfield in disposing of this case, and that his course was approved on appeal. The mandate in the case reported required the dismissal of the bill as to the railroad company, and an application was afterwards made to have the mandate so modified as to enable the court of chancery to allow the filing of a cross bill in favor of the defendant estate against the defendant company to settle the equities between them. The court declined to do this, whereupon Judge Redfield said, as an individual and without examination, that he had no doubt that the chancellor could allow such a motion without being in contempt of the mandate. In Re Chickering, 56 Vt. 82, the petitioner was one of the persons for whose benefit the bill was brought, if she should desire to avail herself of it by becoming a party; and the court held that it was within the discretion of the court of chancery to allow her to become a party at any time before the final decree should be signed and enrolled. The opinion says further that even if the decretal order affirmed by the supreme court had been so drawn that it would exclude the petitioner, the court of chancery would have had this right, for the reason that it was not a matter upon which the supreme court had passed or given directions. In Railroad Co. v. Bixby, 57 Vt. 548, the supreme court inadvertently assumed that the interest of one of the defendants in the property in suit was a one-third interest when no question as to theproportionate rights of the several parties was raised by the pleadings or the evidence. Upon receiving the case, the court of chancery permitted an amendment of the bill in this respect, and appointed a master to ascertain the value of the property and the amount of the interest in question, and upon the coming in of his report entered a decree for the amount so determined. This was held to have been properly done. In Sortwell v....