Fire District No. 1 of the Town of Barre v. the Graniteville Spring Water Company, Inc

• Decision Date: 19 May 1930
• Citation: Fire District No. 1 of the Town of Barre v. the Graniteville Spring Water Company, Inc, 150 A. 459, 102 Vt. 511 (Vt. 1930)
• Parties: FIRE DISTRICT NO. 1 OF THE TOWN OF BARRE v. THE GRANITEVILLE SPRING WATER COMPANY, INC
• Court: Vermont Supreme Court

150 A. 459

102 Vt. 511

FIRE DISTRICT NO. 1 OF THE TOWN OF BARRE v. THE GRANITEVILLE SPRING WATER COMPANY, INC

Supreme Court of Vermont

May 19, 1930

May Term, 1930.

Appeals in Chancery.

1. Under G. L. 1561, party seeking review of case in chancery must cause written motion for appeal to be filed with clerk within twenty days from time final decree is filed, and unless motion for appeal is so filed case is not in Supreme Court.

2. Exceptions in chancery are brought to Supreme Court only by force of an appeal, and, when appeal fails, exceptions fail with it.

3. Where findings of fact were filed on September 7, and on fourteenth day of same month plaintiff's attorney sent clerk letter enclosing plaintiff's exceptions to findings of fact to be filed at once, and also enclosed motion for appeal "to be signed as soon as you enter decree of dismissal which the court indicated he should make," and clerk inadvertently filed motion for appeal on September 15 when filing exceptions, and acknowledged receipt of entry fee in Supreme Court, stating that case was then in Supreme Court, and appellant's attorney was not advised otherwise until filing of motion to dismiss, whereas decretal order from which appeal was desired was not filed until September 22, held that statute (G. L. 1561) relating to appeals had been substantially complied with, and motion for appeal should be treated as having been filed as intended immediately after filing of decretal order.

4. Question whether exceptions taken to admission and exclusion of evidence and to findings of facts, which were impliedly overruled by adverse decree, are before Supreme Court for review, is not properly presented by motion to dismiss appeal.

5. Provision of G. L. 1511 that exceptions taken on trial of controverted questions of fact before chancellor shall be available on appeal in same manner as in county court causes tried by court, held to apply both to exceptions to admission and exclusion of evidence and chancellor's findings.

6. Method prescribed by G. L. 1511 for making exceptions on trial before chancellor available on appeal is exclusive.

7. Where plaintiff took appeal from decree of chancellor dismissing bill, but failed to have bill of exceptions signed and filed as required by statute, no exception taken on trial before chancellor is brought up by appeal for consideration and review.

APPEAL IN CHANCERY. Heard on pleadings and findings of fact by chancellor at the September Term, 1928, Washington County Thompson, Chancellor. Decree dismissing bill. The plaintiff excepted and appealed. Motion to dismiss appeal on ground among others, that appeal was not filed within 20 days from date of decree. Motion to dismiss appeal overruled.

Defendant's motion to dismiss the appeal is overruled.

C O. Granai and John W. Gordon for the plaintiff.

Deane C. Davis and Fred E. Gleason for the defendant.

Present: POWERS, C. J., SLACK, and MOULTON, JJ., and GRAHAM, Supr. J.

OPINION

GRAHAM

This is a proceeding in equity. Heard below before the chancellor; findings of fact were filed and also decree dismissing the bill. The questions here presented are raised by defendant's motion to dismiss plaintiff's appeal. One ground of the motion is that the plaintiff did not within twenty days from the date of the decree, file a written motion for appeal therefrom.

By statute G. L. 1561 it was essential to the bringing of the case to this Court for review that the plaintiff procure a written motion for an appeal to be filed with the clerk within twenty days from the time the final decree was filed. United States of America v. Cano et ux. 100 Vt. 111, 135 A. 1; Ludlow Savings Bank & Trust Co. v. Knight, 91 Vt. 172, 99 A. 633; Gove v. Gove's Admr., 87 Vt. 468, 89 A. 868, and cases cited. Unless such a motion for appeal is filed in compliance with the positive terms of the statute, the case is not here, but remains in the court of chancery. United States of America v. Cano, supra; Ludlow Savings Bank & Trust Co. v. Knight, supra. Exceptions are brought up to this Court only by force of an appeal, and when the appeal fails, the exceptions fail with it. Essex Storage Electric Co. v. Victory Lumber Co., 93 Vt. 437, 445, 108 A. 426; United States of America v. Cano, supra; Residents of Royalton v. Central Vermont Railway Co., 100 Vt. 443, 138 A. 782. Was this statutory requirement complied with? The facts are these: The findings of fact were filed on September 7, 1928, and the decretal order was filed September 22, 1928. We assume that the interim of fifteen days was allowed for the filing of exceptions to the findings under chancery rule 39. On September 14, 1928, the plaintiff's attorney sent the clerk of the court a letter in which he said: "Inclosed is plaintiff's exceptions" (meaning exceptions to the findings of fact) "in the case of Fire District No. 1 of the Town of Barre v. Graniteville Spring Water Co., Inc. Please file the same at once. I also inclose a motion for appeal to be filed as soon as you enter the decree of dismissal which the court indicated he should make." The exceptions to the findings and the motion for an appeal were inclosed with this letter and received by the clerk. The exceptions were filed by the clerk on September 15 and also on the same day the motion for an appeal was filed by the clerk through inadvertence and an oversight of the express directions...