Daisy J. Turner, Admx. v. Alba M. Bragg
| Decision Date | 10 February 1943 |
| Citation | 30 A.2d 450,113 Vt. 156 |
| Parties | DAISY J. TURNER, ADMX., ET AL. v. ALBA M. BRAGG ET AL |
| Court | Vermont Supreme Court |
January Term, 1943.
Jurisdiction of Supreme Court in Chancery Appeals.
1. A motion to dismiss a bill of exceptions on grounds other than that it was not seasonably filed will be heard in Supreme Court only in connection with the main question for review except in extraordinary circumstances.
2. Although chancery rule 39 provides that exceptions to findings shall be filed within fifteen days after the findings are filed, chancery rule 54 gives the chancellor discretion to take the case out of that rule.
3. When a trial court treats exceptions as seasonably taken and certifies them to the Supreme Court, no statute being thereby violated, the exceptions will be heard.
4. Original jurisdiction in all chancery matters is conferred upon the court of chancery, the powers of which are vested in a single chancellor, and the Supreme Court has only appellate jurisdiction in such matters, such jurisdiction being statutory only and being exhausted when the appeal has been considered and decree entered.
5. In chancery cases the Supreme Court sits in error only, and lacks jurisdiction to act as a higher court of equity.
6. On appeal from a decree of a court of chancery the Supreme Court is without jurisdiction to entertain a bill in the nature of a bill of review, a petition for a new trial in the lower court or a motion to remand with instructions that the case be reopened for the taking of further evidence.
7. Although as to issues fully heard and decided the court of chancery has no jurisdiction to hear the parties further after remand from the Supreme Court, it is permissible to bring a bill of review for newly discovered evidence, within the limits prescribed by statute.
BILL IN CHANCERY seeking injunction and damages. Court of Chancery, Windham County, Adams, Chancellor. Decree for defendants dismissing the bill. In Supreme Court the plaintiffs filed a bill in the nature of a bill of review, a petition for new trial and a motion to remand with instructions. Defendants filed a motion to dismiss the bill of exceptions.
The defendants' motion to dismiss the plaintiffs' exceptions is denied. The plaintiffs' bill in the nature of a bill of review and petition for a new trial are dismissed and the motion to remand with instruction that further evidence be received is denied, each and all without prejudice to the rights of the plaintiffs. The case stands for hearing upon the plaintiffs' exceptions.
Natt L. Divoll, Jr. and Herbert S. Avery for the plaintiffs.
George L. Daley and William R. Daley for the defendants.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.
This is a chancery suit in which the plaintiffs seek an injunction restraining the defendants from trespassing on lands alleged to belong to the plaintiffs. After a trial on the merits the chancellor filed findings of fact and a decree was entered for the defendants. The case is here on the plaintiffs' exceptions.
That the plaintiffs' bill of exceptions was seasonably filed is not questioned. However, these exceptions have neither been briefed nor argued. The defendants have moved to dismiss the plaintiffs' exceptions and in this Court the plaintiffs have filed: 1, a bill in the nature of a bill of review; 2, a petition for a new trial; and, 3, a motion to remand the case for the reception of further evidence and for other purposes as stated in the motion.
We first take up the defendants' motion to dismiss the exceptions. The first question is whether the motion shall be entertained.
Questions of the nature presented by this motion will be heard only in connection with the main question for review, except in extraordinary circumstances. Int. Products Co. v. Marsters et al., 96 Vt. 243, 244, 118 A. 809. However, in this case it appears that the plaintiffs saved twenty-one exceptions to the findings and that the transcript contains four volumes. Thus it appears that proper briefing of the exceptions saved will require a great amount of work and the expenditure of a considerable sum of money, all of which will go for naught if these exceptions are eventually dismissed. Therefore, we are disposed to entertain this motion at this time. It must be understood, however, that we fully indorse the rule of practice above stated and it will be departed from only in exceptional cases. Int. Products Co. v. Marsters et al., 96 Vt. 243, 244, 118 A. 809.
The defendants contend that under chancery rule 39 the plaintiffs had fifteen days from the time the findings were filed to file their exceptions to those findings. They insist that after such fifteen day period had expired, the time for filing exceptions not having been extended within the time fixed by the rule, thereafter the chancellor was without authority to take the case out of the rule and allow the plaintiffs to then file their exceptions to the findings as the chancellor attempted to do in this case. For that reason the defendants contend that the exceptions are without force and should be dismissed.
However, chancery rule 54 gave to the chancellor authority to take the case out of the rule. Where the court treats the exceptions as seasonably taken, and certifies them to this court, as was done in this case, no statute being thereby violated, we will not inquire into the action of that court. International Products Co. v. Marsters et al., 96 Vt. 243, 245, 118 A. 809. Cases cited by the defendants dealing with questions as to the time of filing a bill of exceptions are not here material. We are dealing with the time of saving exceptions and not with the time of filing the bill showing what exceptions have been saved. This motion is without merit.
As to the plaintiffs' bill in the nature of a bill of review, petition for a new trial and motion to remand with direction that the case be reopened for the reception of further evidence, the first question is whether this Court has jurisdiction to entertain any or all of them.
Original jurisdiction in all chancery matters is conferred upon the court of chancery, the powers of which are vested in a single chancellor. P. L. 1245. The Supreme Court has only appellate jurisdiction in such matters. Slason v. Cannon, 19 Vt. 219, 220; Canerdy v. Baker, 55 Vt. 578, 581; Westinghouse Electric Mfg. Co. v. Barre & Montpelier Tr. & Pr. Co. et al., 97 Vt. 306, 309, 123 A. 201. Its jurisdiction is statutory, acquired only in the manner provided by statute (Westinghouse case, supra, 97 Vt. at 309, 123 A. 201, and cases cited) and exhausted when the appeal has been considered and judgment or decree entered in accordance with the provisions of P. L. 1325 no. 39 of the acts of 1937. Westinghouse case, supra, 97 Vt. at 309, 123 A. 201, and cases cited. However, such jurisdiction may be restored on proper petition or motion for rehearing. P. L. 1327-1330; Westinghouse case, supra, 97 Vt. at 309, 123 A. 201.
The plaintiffs contend that the provisions of P. L. 1324, when read in...
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