Hogan & Hog An v. Sullivan

• Decision Date: 26 May 1906
• Citation: 79 Vt. 36,64 A. 234
• Court: Vermont Supreme Court
• Parties: HOGAN & HOG AN v. SULLIVAN.

64 A. 234

79 Vt. 36

HOGAN & HOG AN

v. SULLIVAN.

Supreme Court of Vermont. Franklin.

May 26, 1906.

Exceptions from Franklin County Court; John W. Rowell, Judge.

Action by Hogan & Hogan against Nora Sullivan. Heard on an auditor's report and exceptions thereto. Judgment for plaintiffs, and defendant brings exceptions. Affirmed.

Argued before TYLER, MUNSON, WATSON, HASELTON, and POWERS, JJ.

Hogan & Hogan and H. C. Royce, for plaintiffs. C. G. Austin & Sons, for defendant.

POWERS, J. The action is book account, and the plaintiffs had judgment in the county court for the amount found due by an auditor. The auditor found facts on evidence objected to by the defendant, and reached conclusions which the defendant insists were unwarranted by the evidence; but she filed no exceptions to the report, and did not ask that the report be recommitted or rejected. There is nothing in the record to show that the questions of admissibility or sufficiency of evidence here argued were pressed upon the attention of the county court, or considered or passed upon by that court. All the excepttions show is that the case was "heard on auditor's report."

It is a well-settled and oft-repeated rule of this court that no questions will be considered here, except such as appear by the record to have been raised and decided by the county court. Vilas v. Downer, 21 Vt. 419; Walton v. Walton's Est., 63 Vt. 513; Manning v. Leighton, 66 Vt. 56, 28 Atl. 630; Barrette v. Laurier, 60 Vt. 509, 38 Atl. 230; Parker v. McKannon Bros. & Co., 76 Vt. 96, 56 Atl. 536. The defendant insists that these questions of admissibility and sufficiency of evidence were presented to the county court by virtue of a' reference of them to that court by the auditor in his report. The general rule is that objections of this kind to the report of an auditor, referee, or commissioner must be taken by way of exception, motion to recommit, or objection to the acceptance of the report, or they are waived. Kidder v. Smith, 34 Vt. 294; Wilder v. Stanley, 49 Vt. 105. But when a question of law is pointed out by such auditor, referee, or commissioner, and referred to the court, there is no necessity for filing any exceptions to the report. Sargeant v. Sargeant's Ex'rs, 18 Vt. 330; Willey v. Laraway, 64 Vt. 559, 25 Atl. 436. See, also, Walton v. Walton's Est., and Manning v. Leighton, supra. In such case the question referred is properly before the county court and available to the complaining party. The growing tendency, however, of submitting all such questions which arise during the hearing by a general reference is not approved. Good practice requires that the trier should point out each of such questions with the same precision as is demanded in an exception. The court should not be called upon to search through the report to discover the legal questions submitted. The trier should "put his finger" upon the very question reserved for review. This auditor does nothing of the kind. Indeed, he does not, even in general terms, submit any question of admissibility or sufficiency of evidence,...