Hancock v. Town of Worcester

• Decision Date: 06 January 1890
• Citation: Hancock v. Town of Worcester, 62 Vt. 106, 18 A. 1041 (Vt. 1890)
• Parties: HEMAN A. HANCOCK v. TOWN OF WORCESTER
• Court: Vermont Supreme Court

18 A. 1041

62 Vt. 106

HEMAN A. HANCOCK v. TOWN OF WORCESTER

Supreme Court of Vermont

January 6, 1890

GENERAL TERM, OCTOBER, 1889.

Judgment affirmed.

John G. Wing, for the defendant.

OPINION

ROWELL

This case comes up on exceptions, signed by the Chief Judge, at the March Term, 1889, of Washington County Court when there was final judgment. At the September Term, 1886 of that court, both parties moved that the petition be dismissed with costs. The court overruled the motions and appointed commissioners, to which the defendant excepted; but no minute of that exception was signed until the exception was embodied in the bill now before us. Although the statute requiring exceptions to be filed within thirty days from the rising of the court has reference only to final judgment in the case, Thetford v. Hubbard, 22 Vt. 440 yet the statute requires that exceptions be signed by the judge who presides at the trial at which the exceptions are taken.

County Courts are established by the Constitution, and the statute makes it the duty of the judges of this court to assign one of their number to preside in the County Court in each county; and although it seems to be differently held in England and in some of the States, yet in this State the Supreme Court will take judicial notice of subordinate tribunals created by the Constitution, and of who are the presiding judges thereof at a given term, and it will be presumed, the contrary not appearing, that the judge assigned to preside, presided during the whole term, as such is the usual course. Stricker v. State, 11 Md. 322; Kilpatrick v. Commonwealth, 31 Pa. 198; ex parte Peterson, 33 Ala. 74; 89 Am. Dec. note, 685. Hence we judicially know that the Chief Judge did not preside at the trial when said motions were overruled and commissioners appointed, and therefore the exception to that action of the court is not properly before us.

The statute allowing cases of this kind to come up on exceptions instead of upon certiorari, provides that no judgment nor order of the County Court, rendered in such a proceeding, shall be reversed, unless this court would have granted a writ of certiorari for the same cause. That writ is not demandable as matter of strict legal right, but it rests in the discretion of the court to grant or refuse it. He who asks for it must show that substantial injustice has been done, and that it will be remedied by granting the writ. Failing this, the writ is always denied.

The commissioners decided that the public good and the convenience of individuals require the road to be laid as prayed for, and they lay it accordingly. They then proceed to appraise the land damages. They then go on to say that while the public good and the convenience of individuals require the road to be laid, yet they are of opinion that there will be such benefit to the petitioners, and especially...