Ford v. Hersey

• Decision Date: 05 November 1918
• Citation: 104 A. 875
• Parties: FORD et al. v. HERSEY et al.
• Court: Vermont Supreme Court

104 A. 875

FORD et al.

v. HERSEY et al.

Supreme Court of Vermont. Chittenden.

Nov. 5, 1918.

Appeal in Chancery, Chittenden County; Frank L. Fish, Chancellor.

Suit by Mattie H. Ford and another against Harvey Hersey and others to set aside deeds from plaintiffs to defendant, which defendant was alleged to have altered after execution, having obtained possession of them without the consent of plaintiffs and placed them on record. Thereafter defendant sold part of the premises covered by the deeds to defendants Smith. Decree for plaintiffs, and the defendants appeal. Altered, affirmed, and remanded, with directions.

Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ.

Edward H. Deavitt, of Montpelier, and J. Ward Carver, of Barre, for appellant Hersey.

Erwin M. Harvey, of Montpelier, for appellants Smith.

V. A. Bullard and Sherman R Moulton, both of Burlington, for appellees.

WATSON, C. J. It is said that the decree rendered below gives no consideration to the matters sought to be brought into the case by the motion of defendant Hersey for leave to file a cross-bill, and that in the circumstances of the case the denial of the motion was an abuse of discretion, and consequently an error which this court will correct. The principle here invoked is well understood, but to make it applicable a clear case of such abuse must be made to appear. Our attention is called to the fact that it appears from the transcript that when the consideration or inducement for the deeds of April6, ">1904, was under consideration and Hersey was testifying concerning the matter he was asked whether there was any other consideration or inducement for making those deeds. Whereupon counsel for plaintiffs objected on the ground that it went to those prior conveyances, which could not be done in the absence of a cross-bill; and that it was not material to any issue in the case. The answer, which was in the negative, was received and exception saved by plaintiffs. The direct examination continued, and, so far as it appears, the course of it was not changed by reason of this objection and exception. The master's report shows that the case was heard on the evidence in December, 1915, closing on the 29th; that, after the taking of testimony was thus concluded, a further hearing was granted by the master, at Hersey's request for the purpose of receiving more evidence, and such hearing was had on the 27th day of July, 1916. The master's report was filed on August 2, 1917, and exceptions thereto were filed by all the defendants on the 16th day of the same month. The motion by Hersey for leave to file the so-called cross-bill was in fact a motion for leave to file a certain paper then presented, consisting of an amendment to his answer by way of allegations of new matter, and a cross-bill praying for specific and for general relief, all of great length and sworn to by him on November 9, 1917. Consequently this action was not presented to the chancellor at the earliest until the day last named, which was nearly two years after the aforementioned objection, based upon the want of a cross-bill, was made. The additional allegations, except as to change of counsel and prejudice of the master presently to be noticed, show nothing not fully known to Hersey when he made answer to the bill. It is alleged therein, however, that he told all such additional facts to his counsel before the latter drew the answer, but that they were not included, and many of them were not shown in evidence. It is a part of the new allegations that, during the progress of the hearing before the master, Hersey became dissatisfied with the handling of his case, dismissed his counsel, and procured the service of new counsel; that the failure to bring out such additional facts and the change of counsel created prejudice in the master's mind against Hersey, by reason whereof the master did not give proper consideration to the evidence adduced by him, and found against the evidence in the case.

Just when the change of counsel took place does not appear; but it was prior to the hearing had before the master in July, 1916. On that occasion Hersey was represented by the new counsel. So if there was neglect of duty by his former solicitors in the respect named, the hearing of the case on the merits was concluded by the new solicitor, who thereafter had charge of the matter without applying for leave to take steps remedying the effect of the alleged neglect of duty, until at least a year and four months after his employment and some three months after the report and exceptions thereto were filed, and immediately preceding the rendition of the decree. The record...