Francis B. Hutchins v. F. J. George And Trustee

• Decision Date: 17 May 1918
• Citation: 104 A. 108,92 Vt. 371
• Parties: FRANCIS B. HUTCHINS v. F. J. GEORGE AND TRUSTEE
• Court: Vermont Supreme Court

104 A. 108

92 Vt. 371

FRANCIS B. HUTCHINS v. F. J. GEORGE AND TRUSTEE

Supreme Court of Vermont

May 17, 1918

Special Term at Brattleboro, February, 1918.

ASSUMPSIT. Plea, the general issue, and set-off. Trial by the Montpelier City Court, Erwin M. Harvey, Judge. Judgment for plaintiff. Defendant excepted. The opinion states the case.

Affirmed.

William C. White for plaintiff.

F J. Marshall for defendant.

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

OPINION

HASELTON

This is an action of contract in the form of general assumpsit brought before the City Court of Montpelier. The defences were the general issue, or denial, and set-off. Trial was by the court and judgment was rendered for the plaintiff to recover $ 22.82, as damages, and costs. The defendant brings a bill of exceptions.

The writ in this case was dated December 7, 1916. The defendant had previously brought an action in the form of general assumpsit against the plaintiff. That action had been returnable, to the court that tried this, November 13, 1916, and, the defendant there, the plaintiff here, not having appeared, judgment in that action had been rendered on his default for damages $ 10.50 and costs. On the trial of this case a certified copy of the record of the former judgment was not offered by either party, but the files therein were at hand in the possession of the court; and at the request of the plaintiff, the court took notice of the former judgment and the items of the specification therein, and considered them in the determination of this case. To this action of the court the defendant excepted on the sole ground that a court has no right to take judicial notice of its own judgments. As a rule the judgment and proceedings in another case than that on trial, even between the same parties, will not be taken notice of by the court of its own motion. Otherwise matters might be considered that a party has no opportunity to meet and explain. 15 R. C. L. 1114. But when former judicial proceedings between the same parties in the same court are offered in evidence they prove themselves, since a court takes judicial notice of the authenticity of its own records, and where such former proceedings are relevant and are seasonably offered they are, without more, properly in the case. Here the request of the plaintiff, that the court take notice of the former judgment and the specification on which it was based, was in effect an offer, and nothing appears to indicate that it was not seasonably made, and no question of relevancy is raised. Therefore, so far as appears, the matters noticed by the court were properly before it for consideration. State v. Shaw, 73 Vt. 149, 160, 50 A. 863; Armstrong v. Colby, 47 Vt. 359, 361, 364.

Some or all of the items of the specification of the plaintiff in this suit (Hutchins v. George) were for indebtedness claimed to have accrued prior to the bringing of the former action (George v. Hutchins), in which Hutchins did not appear but suffered judgment to go against him by default. These items were considered by the court, against objection and exception on the ground that Hutchins was precluded as to such items by the judgment against him in the suit in which he suffered default, the respective claims of the parties being such that in that suit Hutchins might have declared in offset on the claim for which he now brings suit. But, under our statute, it was not obligatory upon him to do so. He could fail to exercise his privilege in that regard without prejudice to his own claim in a suit brought by him. P. S. 1507 (G. L. 1806); Kezar v. Elkins, 52 Vt. 119, 120-121; Davenport v. Hubbard, 46 Vt. 200, 206, 14 Am. Rep. 620; Carver v. Adams, 38 Vt. 500.

We note that had the former action been book account the matter of...