Haven v. Ward's Estate

• Decision Date: 03 May 1955
• Docket Number: No. 1269,1269
• Citation: 114 A.2d 413,118 Vt. 499
• Court: Vermont Supreme Court
• Parties: Franklin G. HAVEN and Eva L. Haven v. Sidney L. WARD'S ESTATE.

Page 413

114 A.2d 413

118 Vt. 499

Franklin G. HAVEN and Eva L. Haven v. Sidney L. WARD'S ESTATE.

No. 1269.

Supreme Court of Vermont.

May 3, 1955.

R. Lawlor Cooper, Springfield, for plaintiffs.

Alban J. Parker, Springfield, for defendant.

Before CLEARY, ADAMS, CHASE and HULBURD, JJ., and SYLVESTER, Superior Court Judge.

HULBURD, Justice.

Franklin G. Haven and Eva L. Haven, his wife, presented a claim to the Commissioners of the Estate of Sidney L. Ward. It was disallowed. Thereupon the Havens duly took an appeal to Windsor County Court. The declaration on appeal was in the common counts with specifications showing that the claimants were seeking to recover as follows:

Moving shop $230.00

Moving of shrubbery and planting 400.00

Driveway 483.00

Repairing building 1000.00

$2113.00

On June 15, 1953 the defendant Estate moved for further specifications. The plaintiffs, not waiting for any court order, responded by breaking down the item of $400 into two parts of $200 each; otherwise the specifications were left the same. Not being satisfied with this, the defendant Estate pressed its motion for further specifications, and on June 22, 1953, the court ordered that the plaintiffs file more complete specifications at once, informing both parties that the action would come on for trial three days later, that is, on June 25th. On June 24th, the day before the trial, instead of filing further specifications, the plaintiffs filed a motion in which they asked leave to amend their declaration and be permitted to declare specially on a certain land contract and warranty deed, under which it was claimed that a breach of warranty had occurred. The defendant opposed the motion on the ground that the proposed amendment substituted a new cause of action and, therefore, was improper. The court sustained the defendant in this and declined to allow the amendment. The plaintiffs excepted. The defendant then moved that the plaintiffs be non-suited for failure to comply with the court's order for further specifications. This was granted and on June 30, 1953, the plaintiffs were non-suited and the defendant Estate had judgment to recover its costs. The plaintiffs thereafter moved to strike the entry of non-suit and to set aside the judgment. On July 13, 1953, the court so ordered and further granted the plaintiffs' motion to pass the cause to Supreme Court before final judgment with the thirty days expiring on August 12, 1953 as the last date on which the plaintiffs might file their bill of exceptions.

The plaintiffs did not get a bill of exceptions signed by the presiding judge within the required time. Instead on August 11, the next to the last day for filing a bill of exceptions, the plaintiffs' attorney mailed an unsigned draft of a bill of exceptions to the Windsor County Clerk, taking it for granted that the clerk would see that it was signed by the presiding judge. Although the June term 1953 had not adjourned, it was in recess and neither the presiding judge nor the clerk was in Woodstock. The unsigned bill of exceptions was received at the county clerk's office on August 12, the last day for filing, and a post card acknowledgment was mailed out to the plaintiffs' attorney the same day. This card indicated that the plaintiffs' bill of exceptions had been received and filed. Nothing was stated on the post card as to whether the bill had been signed or not. About five days later after he had returned to Woodstock, the clerk notified the plaintiffs' attorney that, in fact, the bill of exceptions was not actually filed until August 17. In addition to being filed late, the bill of exceptions did not bear the signature of the presiding judge.

Confronted with this situation, the plaintiffs, on November 25, 1953, after final adjournment of the June term, moved to strike the entry of July 13 asking for a new entry which would allow passage of the cause to Supreme Court before final judgment for hearing on the exceptions of the plaintiffs to the denial of their motion to amend. This motion to strike came on for hearing at the following term of county court and was finally disposed of on February 1, 1954 when the court denied the plaintiffs' motion. The plaintiffs excepted and the court in its discretion permitted the cause to pass to this court before final judgment, and this time a bill of exceptions was properly signed and seasonably filed.

There can be no doubt but that in appropriate cases our courts have the power to vacate or modify judgments even after the lapse of the term. This revisory control over its records is a discretionary power all courts of record possess independent of statute. It is frequently used to relieve a party against the unjust operation of a record resulting from the mistake or inadvertence of the court and not the fault or neglect of a party. It is a power, it is said, which should be used with great caution and is addressed solely to the discretion of the court. In re Estate of Moody, 115 Vt. 1, 6, 49 A.2d 562. St. Pierre v. Beauregard, 103 Vt. 258, 261, 152 A. 914.

The plaintiffs claim that this is a case in which the court should exercise its revisory power. They have argued that the court below ruled as a matter of law that it had no such power. It is enough to say that the record does not bear the plaintiffs out on this point. Nothing appearing to the contrary, we cannot assume that the court withheld its discretion; rather the assumption is that it was exercised. Mullett v. Milkey, 113 Vt. 42, 45, 29 A.2d 806.

When we come to analyze the situation in this case, we find that the plaintiffs are not seeking to have an erroneous record corrected. Nothing is claimed to have been wrong about it. The entry of July 13 was the very entry which the plaintiffs previously sought. Having got it with a right to go to Supreme Court before final judgment, they failed to comply with the statutory requirement as to the filing of their bill of exceptions. Realizing their failure, the plaintiffs are seeking to employ a motion to strike as a device to open a way to a second chance to do what they should have done in the first place. It is at once apparent that if such a procedure were generally sanctioned, the requirements of the statute as to filing of bills of exceptions would be virtually abrogated. To permit it, would be tantamount to allowing some other judge than the one who presided at the trial to sign the bill of exceptions. This cannot be done. Beam v. Fish, 106 Vt. 219, 221, 172 A. 617.

It is the duty of the losing party to see to it that his bill of exceptions is presented to the presiding judge and signed by him and filed within the required time. The latest decision in a long line of cases to this effect is In re Estate of Towner, 117 Vt. 554, 97 A.2d 538. The weakness of the plaintiffs' procedure was that they sought to impose on the clerk a duty which was not his but was their own. It was...