Clarence Rinfret v. A. L. Tripp

• Decision Date: 06 February 1924
• Citation: 123 A. 430,97 Vt. 404
• Parties: CLARENCE RINFRET v. A. L. TRIPP ET AL
• Court: Vermont Supreme Court

123 A. 430

97 Vt. 404

CLARENCE RINFRET v. A. L. TRIPP ET AL

Supreme Court of Vermont

February 6, 1924

January Term, 1924.

ACTION OF TORT. Plea, the general issue. Trial by jury at the September Term, 1923, Windham County, Willcox, J., presiding. Verdict and judgment for defendants. Final adjournment of the court for the term was taken November 2, 1923. On Monday December 3, 1923, the presiding judge extended the time for filing exceptions to December 10, 1923, at which time bill of exceptions was filed with the clerk of the court, subject to amendment. Defendants then moved to dismiss exceptions because not filed within the statutory time. The opinion states the case.

Let the exceptions be dismissed.

Harvey Maurice & Fitts for the defendants.

Carpenter & Clawson for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

BUTLER

This case was tried by jury at the September Term of Windham county court. Verdict and judgment for defendants. Exceptions were noted for plaintiff. The final adjournment of said term of court as shown by the record was taken on November 2, 1923. No bill of exceptions was filed until December 10, 1923, and this case is now before us on the motion of defendants to dismiss the exceptions because not filed with the clerk within the time fixed by statute for filing them.

G. L 2258 provides that a bill of exceptions "shall be signed by the presiding judge and be filed with the clerk within 30 days after the rising of the court; provided that a date before or after the expiration of the 30 days may be fixed by the court for filing of such exceptions * *."

The plaintiff attempts to bring himself within the statute by showing that the presiding judge fixed a time beyond the 30-day limit, within which he might file exceptions, and that they were filed within the time so fixed.

The 30 days allowed the plaintiff to procure and file a bill of exceptions, apart from the fact that the last day for filing exceptions fell on Sunday, expired on December 2, 1923. By a written order signed by the presiding judge dated December 3, 1923, the time fixed by him as the last day within which exceptions could be filed was December 10. This order was not in fact signed by the presiding judge until December 4, 1923, and was not filed with the clerk until December 10.

The provisions of the statute as to the signing and the time of filing exceptions are mandatory, unless complied with the exceptions must be dismissed as giving this Court no jurisdiction of the case, and no action of the parties or the presiding judge can give the court jurisdiction. Mead v. Moretown, 72 Vt. 323, 47 A. 1072; Gordon v. Mead, 81 Vt. 36, 69 A. 134; Hotel Vermont Co. v. Cosgriff, 89 Vt. 173, 94 A. 496. Any order subsequently made is a mere nullity by operation of the statute, and the clerk of the court could not lawfully file them. Nelson v. Marshall, 77 Vt. 44, 58 A. 793; Nixon v. Phelps, 29 Vt. 198; Cole v. Walsh et al., 97 Vt. 256, 122 A. 664.

In the very recent case, last above cited, this precise question was considered and determined and it was there stated that a construction of this statute giving the court authority after the time limited by statute has expired to extend the time of filing exceptions would be repugnant to the subsequent provision, requiring the clerk, if they are not filed, to erase from the docket the entry of exceptions and issue execution. Cole v. Walsh, supra.

The plaintiff, however, insists that as December 2, the last day by law for filing exceptions was Sunday, of which the court will take judicial notice, it should be excluded in computing the time in which he could file exceptions, and, being entitled to file exceptions on December 3, the court could on that day extend the time and did so.

But this ground is untenable. It appeared that the presiding judge did not sign the order of extension until Tuesday, December 4, which was manifestly too late. The application for an extension of time made to the presiding judge on December 3, is unavailing for it was not then granted. Neither does the fact that the written order was dated on December 3 aid the plaintiff, for it was not then filed.

Whether the presiding judge alone may, at any time, extend the time allowed by law for filing exceptions is a question not raised by the parties, and so is not here considered.

Moreover, if such power exists, the filing of an order with the clerk before the time allowed by law expired, is as essential as the filing of the exceptions, for at the expiration of the time the clerk is required by law to erase the notation of exceptions and thereupon other rights immediately intervene. Without an order of extension signed and filed he must act upon his record as the law directs and erase the exceptions noted, and, being but a ministerial act, when once the erasure is made it cannot be restored.

This holding would dispose of the case without further...