Edward H. Holden v. George F. Campbell

• Decision Date: 26 January 1929
• Citation: 144 A. 455,101 Vt. 474
• Parties: EDWARD H. HOLDEN v. GEORGE F. CAMPBELL
• Court: Vermont Supreme Court

144 A. 455

101 Vt. 474

EDWARD H. HOLDEN v. GEORGE F. CAMPBELL

Supreme Court of Vermont

January 26, 1929

November Term, 1928.

Executors and Administrators---Recognizance on Appeal from Probate Court---G. L. 1707, 2299 2304---Courts---Jurisdiction---Necessity of Compliance with Legislature Requirements To Create Remedy---Effect of Lack of Proper Recognizance.

1. On petition to county court, brought under G. L. 2299, for allowance of an appeal from a decree of probate court allowing supplemental account of special administrator, held that recognizance, under G. L. 1707 as provided for writs of summons, but not complying with G. L. 2304, was void provisions of latter section applying to all petitions mentioned in G. L. Ch. 115.

2. When Legislature creates a remedy contingent upon its being asserted within a specified time or in a prescribed manner such requirements must be substantially complied with in order to give court jurisdiction.

3. Petition to county court, brought under G. L. 2299, for allowance of an appeal, from decree of probate court allowing supplemental account of special administrator, not having recognizance required by G. L. 2304, and proceedings under such petition, held void.

PETITION to the county court, brought under G. L. 2299, for the allowance of an appeal from a decree of the probate court for the district of Bennington allowing the supplemental account of the special administrator of the estate of Michael Flynn. Heard by court at the June Term, 1928, Bennington County, Sherburn, J., presiding. Petition granted, and judgment rendered disallowing such account with costs to petitioner. The defendant challenged the jurisdiction of the county court, on the ground that recognizance taken when petition issued did not comply with G. L. 2304, and excepted to the rulings and judgment of the county court.

Proceedings in the court below held for naught, and petition dismissed with costs.

Collins M. Graves for the defendant.

Edward H. Holden for the plaintiff.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and CHASE, JJ.

OPINION

SLACK

This is a petition to the county court, brought under G. L. 2299, for the allowance of an appeal from a decree of the probate court allowing the supplemental account of the special administrator of the estate of Michael Flynn. On facts found the prayer of the petition was granted and judgment was entered disallowing said account with costs to the petitioner. The case is here on defendant's exceptions.

The defendant challenged the jurisdiction of the court below, in various ways, on the ground that the recognizance taken when the petition issued did not comply with G. L. 2304, which provides: "A petition for a new trial or to enter an appeal shall not issue until a justice of the supreme court, the presiding judge or a municipal or city judge of the court having jurisdiction of the same, as the case may be, has taken sufficient security by way of recognizance to the adverse party, which shall be minuted on the citation or petition, conditioned," etc., and excepted to all of the court's rulings relating thereto.

The only recognizance taken in the instant case is that provided by G. L. 1707 for writs of summons, and was taken by the clerk of Bennington county court who signed the citation. The petitioner insists that this is sufficient--that the provisions of G. L. 2304 do not apply to petitions of this nature, and calls attention to Durkee v. Marshall, 14 Vt. 559, where it is said that the provisions of R. S. Ch. 33, § 10, which in some respects were similar to those of G. L. 2304, apply only to petitions for an appeal from the judgment of a justice court in cases of fraud, accident, or mistake. When all the provisions of the present statute relating to new trials and appeals are considered together, as they must be, it is apparent that the provisions of G. L. 2304 were not intended to be so limited in their application as the provisions of the earlier statute appear to have been in the case relied upon.

The petitioner insists that a defective recognizance does not affect the jurisdiction of the court over petitions like this one, and cites Houghton v. Slack, 10 Vt 520, in support of this claim. Concerning this it is enough to say that the statute under consideration in that case was directory, while the statute be...