Couture v. Lowery

• Citation: 122 Vt. 505,177 A.2d 371
• Decision Date: 02 January 1962
• Docket Number: No. 1921,1921
• Court: United States State Supreme Court of Vermont
• Parties: Eugene P. COUTURE v. Fred LOWERY and Ida Lowery.

Page 371

177 A.2d 371

122 Vt. 505

Eugene P. COUTURE v. Fred LOWERY and Ida Lowery.

No. 1921.

Supreme Court of Vermont.

Jan. 2, 1962.

Finn & Davis, Barre, for plaintiff.

Reginald T. Abare, Barre, for defendants.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

BARNEY, Justice.

A temporary injunction, restraining the defendants from conveying their farm premises, was dissolved as a consequence of this Court's decision in Couture v. Lowery, 122 Vt. 239, 168 A.2d 295. In this proceeding the defendants, by motion addressed to the court of chancery for Washington county, asked for assessment of damages consequential to the enjoinment. They prevailed below but appeal on the grounds that the award of damages was insufficient in the light of the loss demonstrated by the evidence, and, further, that they were improperly precluded from presenting further evidence of damage. The plaintiff says that the whole proceeding ought to be dismissed for want of jurisdiction, contending that the defendants brought their motion too late.

Since jurisdiction is basic, that issue is of initial concern. The entry order in this Court was filed on March 1, 1961. The privilege of asking for reargument expired fifteen days later (Supreme Court Rule 22), and the order became final. On May 2, 1961, according to the docket entry, defendants' motion for assessment of damages was filed in the chancery court below. In this Court the time for requesting such relief had passed, in the absence of a motion to strike off the original judgment order. See St. Germain's Admr. v. Tuttle, 114 Vt. 348, 45 A.2d 202; same case, 114 Vt. 263, 44 A.2d 137.

The defendants elected to present their motion to the lower court. We stated, in Turner v. Bragg, 114 Vt. 334, 336, 44 A.2d 548, 549, that 'unless a remand is ordered when final judgment or decree is rendered in this Court, or later obtained on motion, a chancellor or court of chancery has no further jurisdiction in the cause.' Therefore, to support these proceedings in the chancery court below there must be either an order of remand or some special quality attached to assessment of such damages that supports a sort of retained or residual jurisdiction.

In spite of the breadth of the quoted language above, there are chancery concerns which, by their nature, give rise to a need for continued supervision by the chancellor of issues not carried here on appeal. Westinghouse Electric Mfg. Co. v. Barre & Mont. Tr. & P. Co., 97 Vt. 306, 123 A. 201. However, after that case and White River Chair Co. v. Conn. River Power Co., 105 Vt. 24, 162 A. 859, were decided, 12 V.S.A. § 4605 was amended in 1937 to its present form, giving this Court the power to enter final judgment without remand. The language of those earlier cases must be read in the light of this statutory difference. See Turner v. Bragg, 113 Vt. 156, 159-61, 30 A.2d 450. The prospect of final disposition enlarges the authority of this Court over the matters at issue, so that its judgment may become the decree in the case. Turner v. Bragg, supra, 114 Vt. 334, 335-6, 44 A.2d 548; Century Indemnity Co. v. Mead, 121 Vt. 434, 435, 436, 159 A.2d 325. The statutory purpose is clear: to expedite final disposition of chancery matters without the necessity for innumerable remands for final action followed by consequential appeals to test compliance with the mandates involved.

The entry made in this case, 122 Vt. 239, 168 A.2d 295, reads, 'Decree reversed. Judgment for the defendants to recover their costs.' Since in all cases of a civil nature finally disposed of in this Court, costs are taxed here (12 V.S.A. § 2131) unless otherwise ordered, this entry is in no sense a remand.

The question becomes, then, an inquiry into whether the power to assess injunctive damages is one reserved to the issuing court, even in the face of a statutory trend enlarging the competence of this Court to dispose of all issues in a chancery case. By 12 V.S.A. § 4447, however, the legislature has said that such a damage assessment may be made by reference to a master. Such a reference is appropriate to either the court of chancery or ...