Grant v. Goodrich, 804.

• Decision Date: 03 May 1938
• Docket Number: No. 804.,804.
• Citation: 199 A. 246
• Court: Vermont Supreme Court
• Parties: GRANT v. GOODRICH et al.

199 A. 246

GRANT

v. GOODRICH et al.

No. 804.

Supreme Court of Vermont. Orange.

May 3, 1938.

Exceptions from Orange County Court; Charles B. Adams, Judge.

Action in general assumpsit by Fleda A. Grant against Ernest E. Goodrich and Raymond La Belle and another, trustees, for rent. The plaintiff had judgment in the justice of the peace court, and on appeal to the county court the action was amended into one of debt on a prior justice of the peace judgment secured against the defendants. Judgment was subsequently rendered against the defendant Ernest E. Goodrich, and a motion to discharge the trustees was granted, and the plaintiff brings exceptions.

Judgment affirmed.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Stanley L. Chamberlin, of Randolph, for plaintiff. Ernest E. Goodrich, of Randolph, pro se, and for intervener Phyllis E. Goodrich.

BUTTLES, Justice.

This is an action in general assumpsit brought on August 25, 1936, before a justice of the peace in which the plaintiff had judgment against the principal defendant and against the trustees summoned therein, the claim being for rent of an office accruing between December 1, 1934, and April 10, 1935. Appeal was taken to Orange county court, and at the June, 1937, term the action was amended into one of debt on a prior justice of the peace judgment secured against the defendant on April 11, 1935. Judgment was thereafter rendered at said term against the principal defendant, Ernest E. Goodrich, and a hearing was had on the motion of the defendant and his wife to discharge the trustees, which motion the court granted. The plaintiff brings the case to this court on exceptions to the granting of this motion, and to the exclusion of certain testimony offered by the plaintiff during the hearing and excluded by the court.

The plaintiff complains that the court failed to file findings of fact developed at the hearing of this motion, although it does not appear that such findings were requested and no exception was taken to the failure to make and file findings. The nature and status of the motion to discharge the trustees are not altogether clear. The proceeding known as trustee process in our practice is purely statutory. A person summoned as trustee is required to appear before the court and make disclosure of the goods, chattels, rights, or credits of the principal defendant which he may have in his possession. P.L. 1775 provides that in lieu of such disclosure the person summoned as trustee may make a declaration setting forth such facts as he deems material and submit himself thereupon to a further examination on oath, and such declaration, with the further examination, if any, shall be sworn to. The principal defendant may secure the discharge of the trustee by filing a bond as provided by P.L. 1766 to 1770. But if the person summoned as trustee is not so discharged and makes no disclosure, he shall be adjudged a trustee and judgment may be rendered against him for the amount of damages and costs recovered by the plaintiff in the action. 1771 and 1772. The statute does not provide for trying the question of liability of the trustee to the principal defendant by motion to discharge the trustee.

The statute also outlines the procedure to be followed when it appears that the goods, effects or credits in the hands of a supposed trustee are claimed by another person. P.L. 1803 provides that when such claimant appears he may be admitted as party to the action for the purpose of maintaining his title to the goods, effects and credits in question, and such title shall be tried and determined in the same manner as the liability of the trustee. The document before us which is entitled "Motion to Discharge Trustees," purporting to be signed by Ernest E. Goodrich and Phyllis E. Goodrich, recites, among other things, that "the funds held by the trustees, Raymond LaBelle and Julia E. LaBelle are funds owned by Ernest E. Goodrich and Phyllis E. Goodrich by the estate of the entirety." It does not appear from the motion that Ernest E. Goodrich and Phyllis E. Goodrich are husband and wife, but this fact does appear from the transcript which is made a part of the bill of exceptions and is made controlling. The parties to the proceeding as well as the court appear to have treated this motion as, in effect, a claim to the fund in question by Goodrich and wife as property held by the entirety, and we so treat it.

Plaintiff's complaint that findings of fact were not made and filed by the court below cannot avail her here. No request for findings or exception to the failure of the court to file same is shown. Furthermore the hearing of this so-called motion by the court was not the trial of "a question of fact that entitles either party to trial thereof by jury" within the provisions of P.L. 2069. It is said in Eastern States Agricultural & Industrial League v. Estate of Vail, 97 Vt. 495, 513, 124 A. 568, 575, 38 A.L.R. 845, referring to the limitation of review in the appellate court to facts reduced to writing and filed by the court below: "But the restriction is limited to cases in which a party is entitled to a trial by jury. 'Entitled' signifies a claim of right—the right to demand or receive. Webster's New Int. Dictionary; People's Trust Co. v. Smith, [Sup.] 30 N.Y.S. 342." The most that could be claimed for the proceeding in the trial court in this case would be that if P.L. 1777 applies, by reason of the provisions of 1803 to the effect that the title of a claimant shall be tried and determined in the same manner as liability of the trustee, then questions of...