Helen Duprey v. Agnes Harrington

• Decision Date: 05 February 1931
• Citation: Helen Duprey v. Agnes Harrington, 153 A. 355, 103 Vt. 274 (Vt. 1931)
• Parties: HELEN DUPREY ET AL. v. AGNES HARRINGTON ET AL
• Court: Vermont Supreme Court

153 A. 355

103 Vt. 274

HELEN DUPREY ET AL. v. AGNES HARRINGTON ET AL

Supreme Court of Vermont

February 5, 1931

January Term, 1931.

Appeals in Chancery---Necessity of Compliance with Statute in Effecting Appeal---Record Must Affirmatively Show Facts Conferring Jurisdiction on Appeal---G. L. 1561.

1. Chancery appeals being matter of statute only, statute relating thereto must be strictly complied with.

2. Since jurisdiction of Supreme Court in chancery appeals depends upon compliance with statute relating thereto appealing party must produce record that affirmatively shows such jurisdiction, as it will not be presumed.

3. Where record failed to show date of decree appealed from Supreme Court was without jurisdiction, which depended on appeal being filed within twenty days from date of decree.

4. As G. L. 1561, relating to chancery appeals, requires that motion for appeal must be filed within twenty days from date of order or decree appealed from, date of such order or decree must affirmatively appear.

APPEAL IN CHANCERY. Suit was to determine the ownership of the proceeds of a life insurance policy. Hearing was had on bill answer, and amended answer, at the December Term, 1929 Bennington County, Buttles, Chancellor. By leave of court, defendant insurance company, in which deceased had been insured, paid the fund in question into court, whereupon the suit as to it terminated, and subsequently decree was entered in favor of the other defendants. The plaintiffs attempted to appeal therefrom. The individual defendants moved to dismiss cause on the ground that plaintiffs' motion for an appeal was not filed in time, and that cause was therefore not properly before the Supreme Court. The opinion states further facts in the case.

Motion granted, and appeal dismissed.

F. E. Morrisey and Norton Barber for the defendants.

Edward J. Hall for the plaintiffs.

Present: POWERS, C. J., SLACK, MOULTON, WILLCOX, and THOMPSON, JJ.

OPINION

SLACK

This is a suit in chancery to determine the ownership of the proceeds of a life insurance policy that Edward A. Baker, deceased, held in the New England Order of Protection at the time of his death which occurred September 19, 1929. On December 24, 1929, the insurance company, by leave of court, paid the fund in question into court and the suit as to it thereupon terminated. Such proceedings were subsequently had that a decree was entered in favor of the other defendants. From such decree the plaintiffs appealed or attempted to appeal, to this Court pursuant to G. L. 1561. The validity of such appeal is now challenged by the defendants on the ground that the motion therefor was not seasonably filed.

G. L. 1561 provides that, except in certain instances not here material, a party may, by a written motion filed within twenty days from the date of a final order or decree, appeal therefrom to the Supreme Court. Since chancery appeals are a matter of statute, and can only be had by force of the statute, Gove v. Gove's Admr., 87 Vt. 468, 89 A. 868; Essex Storage Electric Company v. Victory Lumber Company, 93 Vt. 437, 108 A. 426, it is essential that in an attempted appeal the statute be strictly complied with. Fire District No. 1, etc. v. Graniteville Spring Water Co., Inc., 102 Vt. 511, 150 A. 459; United States v. Cano, 100 Vt. 111, 135 A. 1; Ludlow Savings Bank & Trust Co. v. Knight, 91 Vt. 172, 99 A. 633, and cases cited above.

No question is made but that the motion for an appeal in the instant case was filed March 26, 1930. All that appears respecting the date of the decree from which the appeal was attempted is the following docket entries: "Hearing on bill and ans. Feb. 26, 1930; Judgt. for defts. Harrington, Galgas & Young on hearing; exceps. by plffs.; plffs. mo. for app. fi. Mch. 26."

The defendants claim that the decree was entered the day on which the hearing on the bill and answer was had, namely, February 26, 1930, and insist that the docket entries should be construed as showing such to be the fact. The plaintiffs claim that the decree was entered at a later time, but if so there is nothing by which the date thereof can be fixed. We are inclined to accept the defendants' view respecting the construction to be given the docket entries, but since the question is open to doubt, and the disposition of the case does...