Essex Storage Electric Company, Inc. v. Victory Lumber Co.

• Decision Date: 09 October 1919
• Parties: ESSEX STORAGE ELECTRIC COMPANY, INC. v. VICTORY LUMBER COMPANY
• Court: Vermont Supreme Court

108 A. 426

93 Vt. 437

ESSEX STORAGE ELECTRIC COMPANY, INC. v. VICTORY LUMBER COMPANY

Supreme Court of Vermont

October 9, 1919

January Term, 1919.

APPEAL from an order of the Public Service Commission Essex County. The opinion states the case.

Order affirmed, and cause remanded that a new time of payment be fixed and such further proceedings had as may be required not inconsistent with the views herein expressed.

Dunnett Shields & Conant and R. Y. Fitzgerald for the petitioner.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

POWERS

This is a proceeding brought to the Public Service Commission pursuant to G. L. 4984, wherein the plaintiff seeks to condemn, for the creation of a storage reservoir certain property of the defendant in the town of Victory. Both parties appealed (or attempted to appeal) to this Court pursuant to G. L. 5038.

An appeal from the final order of the Public Service Commission is to be taken and entered in this Court in the same manner as chancery appeal. G. L. 5038. The latter requires a written motion filed with the clerk within twenty days from the date of the decree appealed from. G. L. 1561. When the appeal is from an order of the commission, the motion is to be filed with it or its clerk, and not with the clerk of the court. Hyde Park v. St. Johnsbury & L. C. R. Co., 83 Vt. 562, 77 A. 913. These provisions are statutory, and neither the commission (Hyde Park v. St. Johnsbury & L. C. R. Co., 84 Vt. 326, 79 A. 873), nor this Court (Gove v. Gove's Admr., 87 Vt. 468, 89 A. 868), has any power to extend the time or modify the requirements.

The record before us shows that the order of the commission was made and filed June 21, 1918. On July 11, 1918, the plaintiff filed with the clerk of the commission its appeal therefrom. On that day, the defendant filed with the clerk of Essex County an appeal from this order, and on the next day, July 12, 1918, it filed an appeal with the clerk of the commission. It thus appears that July 11th was the last day for filing an appeal, and the attempted appeal of July 12th was too late to be effective. It follows that the plaintiff's appeal is properly before us, but that the defendant's will have to be dismissed.

Nor is this result affected by the stipulation filed since the argument of the case, wherein it is agreed that all motions to dismiss the cause from this Court are withdrawn and all grounds thereof waived. The well-established rule that jurisdiction cannot be conferred by waiver, consent, or agreement (State v. Hirsch, 91 Vt. 330, 100 A. 877; Miner's Exrx. v. Shanasy, 92 Vt. 110, 102 A. 480) applies. For, the requirements of a valid appeal being statutory, the jurisdiction of this Court depends upon a compliance therewith, and cannot be conferred by agreement or waiver, express or implied. Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228; McKenzie v. Jensen, (Ala.) 75 So. 939; Bolton v. Cummings, 200 Mich. 234, 167 N.W. 19; Land v. Johnston, 156 Cal. 253, 104 P. 449; John v. Paullin, 24 Okla. 642, 106 P. 838; National Union F. Ins. Co. v. Martin, (N. D.) 170 N.W. 880; Keyes v. Baskerville, (S. D.) 170 N.W. 143; Atty. Gen. v. Barbour, 121 Mass. 568; King v. Penn, 43 Ohio St. 57, 1 N.E. 84; Perkins v. Perkins, 173 Mich. 690, 140 N.W. 161; Kenyon v. Probate Court, 17 R.I. 652, 24 A. 149; Humphrey v. Employers' Liability Assur. Corp., 226 Mass. 143, 115 N.E. 253.

It does not of necessity follow, however, that in the circumstances of this case, the defendant is seriously prejudiced by the failure of its appeal. The plaintiff also appealed. So it remains to consider what effect, if any, this fact has upon the defendant's situation. The determination of this question depends upon the character and effect of such appeals.

With us, an appeal in chancery partakes of the nature both of an "appeal" in its full and Civil Law sense, and of a writ of error. Yet it differs from each in essential particulars. It is unlike the former, in that it brings before this Court for review questions of law, only; and it is unlike the latter, in that it brings before this Court for review the whole case. In such appeals, we have nothing to do with the facts, but take them as found below (Middlebury Electric Co. v. Murkland, 89 Vt. 10, 93 A. 291) and sit in error, only. Steffanazzi v. Italian Mut. Benefit Society, 91 Vt. 538, 101 A. 1010, L.R.A. 1918B, 308. But the decree of the court of chancery is vacated by the appeal, and consequently the whole case is brought up by it; and all exceptions properly saved--those of the appellee as well as those of the appellant--are presented for consideration in this Court. Cooley v. Hatch, 91 Vt. 128, 99 A. 784, and cases cited.

On the other hand, when a bill of exceptions is allowed and filed, the judgment of the court below is not vacated, but remains valid until reversed or annulled. Snow v. Carpenter, 54 Vt. 17. Therefore the whole case does not come here for review, and only so much of it stands for consideration in this Court as is covered by the assignments of error of the excepting party. Stratton v. Holden & Martin, 91 Vt. 1, 99 A. 272.

The effect upon the judgment below being the determinating factor, it is not difficult to say to which of these classes appeals from the Public Service Commission belong. For it is expressly provided by G. L. 5038 that the order of the commission shall not be vacated by the appeal.

It must be held, therefore, that in the respect now under consideration, these appeals stand in this Court like cases here on exceptions, and that the plaintiff's appeal does not bring up the defendant's assignments of error.

We are told that various exceptions were saved by the plaintiff to the admission and exclusion of evidence. These are not briefed, and the plaintiff says that it lost the benefit of them by lack of opportunity to file them with the commission. The failure to brief these exceptions amounts to a waiver of them, and ordinarily we should say no more concerning them. But lest others be misled, we consider it worth while to refer to the method by which such exceptions are to be saved and presented for consideration in this Court.

The statute requires the commission to state its rulings, when excepted to. G. L. 5036. The procedure whereby such exceptions are saved and brought to this Court is, as we have seen, that of the court of chancery. Bacon v. Boston & Maine R. R., 83 Vt. 528, 77 A. 858.

There are now two ways of saving exceptions in cases in chancery. If the case is tried before a master, questions as to the admission or exclusion of evidence are not available in this Court, unless saved by exceptions to the report duly filed in the court of chancery. G. L. 1520. If the case is tried before a chancellor, such questions are available on appeal as in cases at law tried by the court (G. L. 1511), and the excepting party has thirty days from the day on which the judgment order is filed in which to file his exceptions. G. L. 1609. Considering the fact that the commission hears the evidence and finds its own facts, therein sitting as a chancellor does in cases tried before him, both alike acting as a court, we think that it was the intention of the Legislature that exceptions in hearings before the commission should be saved in the manner provided by the statute for trials before a chancellor. These parties, then, had thirty days from June 21, 1918, in which to file their exceptions.

This holding does not improve the defendant's situation, for exceptions are brought up to this Court only by force of an appeal, and when the defendant's appeal failed, its exceptions went with it. Nor does it improve the plaintiff's situation, unless the waiver resulting from a failure to brief is neutralized by the stipulation hereinbefore referred to, wherein it is agreed that the exceptions of both parties shall stand for consideration.

Such a waiver cannot be recalled without leave of this Court. It is just as effective as an express waiver, which is binding unless leave is granted to withdraw it. Fadden v. McKinney, 87 Vt. 316, 89 A. 351. It stands like a waiver of objection to evidence, which the court may hold a party to or allow to be withdrawn, in its discretion (In re Martin's Est., 92 Vt. 362, 104 A. 100); or a concession of counsel, which is binding until the court exercises its discretion and relieves the party from this effect. United States v. U.S. Fidelity & Guaranty Co., 83 Vt. 278, 75 A. 280.

No application has been made to this Court to recall the waiver referred to. But treating the filing of the stipulation as such an application, which is the most we can do, we think relief ought to be denied. For reasons already given, the defendant's exceptions cannot be saved to it; and it seems so unfair to give effect to an agreement that can only operate to the advantage of one party though intended to benefit both, that in the exercise of our discretion we disregard the stipulation and dispose of the case on the record before us.

We have left then, nothing for consideration but the plaintiff's objections to the assessment of damages.

The plaintiff insists that the item of $ 10,500 on account of increased cost of cutting and marketing the hardwood standing on the east slope of the basin was improperly allowed. In discussing this claim, we will assume that all of this hardwood was standing on land owned by the defendant but wholly separated from the land sought to be taken by lands owned by others. The argument is...