Horicon v. Langlois' Estate., 604.

• Decision Date: 22 May 1947
• Docket Number: No. 604.,604.
• Citation: 52 A.2d 888
• Parties: HORICON v. LANGLOIS' ESTATE.
• Court: Vermont Supreme Court

52 A.2d 888

HORICON

v.LANGLOIS' ESTATE.

No. 604.

Supreme Court of Vermont.

May 6, 1947.

Reargument Denied May 22, 1947.

COPYRIGHT MATERIAL OMITTED.

Exceptions from Grand Isle County Court; Cushing, Judge.

Proceeding by John Horicon against the estate of Delphise Langlois on claims against the estate. To review an adverse judgment, plaintiff brings exceptions.

Judgment affirmed.

Martin Vilas, of Burlington, for plaintiff.

Leary & Leddy, of Burlington, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

MOULTON, Chief Justice.

This controversy has pursued a long and devious course before is arrival in this Court, as will be seen upon the following review of the record.

Delphise Langlois died on June 13, 1942. On July 16, 1942, the Probate Court appointed two commissioners to receive, examine and adjust claims against his estate, and allowed the period of six months from that date as the time during which such claims were to be presented to them, as provided by P.L. 2832 and P.L. 2838. The commissioners appointed the times and places for the examination and allowance of claims and duly posted notices thereof, with a statement of the time limited for the presentation of such claims, under the provisions of P.L. 2835. Although he made no appearance before the commissioners the plaintiff filed with them a claim based upon a promissory note signed by the decedent, amounting to $941.38, with interest.

The two commissioners were unable to agree upon its allowance, and so the Probate Court, as authorized by P.L. 2837, appointed a third commissioner to act with the others regarding the matter, with the result that the claim was disallowed by a majority vote. The plaintiff received notice of this determination on January 27, 1944, and the report of the commissioners was returned to the Probate Court on January 28. The plaintiff filed a notice of appeal on February 23, but this was ineffective because the appeal had not been taken within twenty days after the return of the report, as required by P.L. 3006. On August 1, 1944, he applied to the Probate Court for a renewal of the Commission to enable him to present another claim against the estate, based upon an alleged breach of warranty in a deed of a certain farm, conveyed to him by the decedent. This application was denied, and properly so, because it was not made within two years after the appointment of the commissioners, in accordance with the provisions of P. L. 2839. On October 4, 1945, he brought a petition to the County Court under the provisions of P.L. 2109, for leave to enter his appeal from the disallowance of his claim upon the note, on the ground that he had been deprived of his right to do so by fraud, accident or mistake. In this petition he alleged that if he should be granted leave to enter an appeal as to the note he intended to file ‘subjoined to said claim’ another claim arising out of a breach of warranty. Hearing was had on October 26, during which the court ruled that the latter claim could not be considered, as being beyond the scope of the petition. The plaintiff thereupon requested that a reasonable time should be given him in which to file an amendment to his petition setting forth the facts relating to the claim of breach of warranty. His request was granted, and the court said that the evidence already taken would be considered with regard to the amendment as far as it could be done. On November 23, after making written findings of fact, the court entered an order granting the petition for an appeal from the disallowance of the note, for reasons which it is not material to mention. The plaintiff took advantage of the order and entered the appeal in accordance therewith. On November 27, he filed an amendment to the petition in which he alleged that previous the receiving notice that his claim upon the note had been disallowed, he had informed the commissioners that he wished to present to them an additional claim for their consideration, which was the claim based upon false warranty. On April 12, 1946, the plaintiff applied to the County Court for leave to introduce further evidence in support of the amendment. After hearing, the application was denied subject to the plaintiff's exceptions.

The only question before us is whether this denial was error. The plaintiff has briefed several exceptions taken at the hearing of October 26, but these are not for consideration because no bill of exceptions covering the rulings then made, or the order of November 23, has been filed within thirty days after the rendition of judgment as required by P.L. 2068, as amended by § 20, No. 29, Acts of 1945. The provisions of this statute are mandatory and a compliance therewith is necessary to give this court jurisdiction to hear and decide the question sought to be raised. Beam v. Fish, 106 Vt. 219, 221, 172 A. 617; Brown v. Osgood, 104 Vt. 87, 89, 156 A. 876; Hunt v. Paquette, 102 Vt. 403, 404, 148 A. 752; Tucker v. Yandow, 100 Vt. 169, 171, 135 A. 600; Trask v. Trask's Estate, 99 Vt. 353, 354, 132 A. 136.

It is urged that the original petition, the amendment and the present application were regarded by the court and parties as constituting parts of one and the same proceeding, and therefore all issues presented during the course of the entire litigation are now here for examination, but the record fails to substantiate this contention. The amendment came too late to be considered as a part of the original petition. As has been seen, it was to have been filed within a reasonable time, and surely a delay of a month, and a filing four days after judgment had been entered, cannot be regarded as a compliance with the condition upon which the permission to do so was asked and granted. The court might well have assumed, in view of the lapse of time, that the plaintiff had decided not to attempt an addition to his original petition.

For present purposes we treat the application to introduce further evidence and the amendment together as a motion to strike off the judgment and reopen the cause for further hearing upon the allegation of the amendment.

A trial court has control over its own judgments during the term at which they are rendered, and afterwards, and possesses the inherent power, for sufficient reasons, to order a final judgment vacated, the cause brought forward and opened for further proceedings; but whether this power shall be exercised in any given instance rests solely in the sound discretion of the court. St. Pierre v. Beauregard, 103 Vt. 258, 261, 152 A. 914; Mutual Life Ins. Co. v. Foster, 88 Vt. 503, 505, 506, 93 A. 258. Any discretionary ruling is not subject to review here unless it clearly and affirmatively appears that such discretion has been abused or withheld. Macauley v. Hyde, 114 Vt. 198, 206, 42 A.2d 482; Russell v. Pilger, 113 Vt. 537, 543, 37 A.2d 403; Lariviere v. Laroque, 105 Vt. 460, 471, 168 A. 559, 91 A.L.R. 1514; Parizo v. Wilson, 101 Vt. 514, 523, 144 A. 856.

But of course there can be neither an abuse nor a withholding of discretion in the denial of an application to reopen a cause where it appears that, if granted, the court would not have jurisdiction of the issue sought to be raised upon a further hearing. See Curtis Funeral Home v. Smith Lumber Co., 114 Vt. 150, 153, 40 A.2d 531. The right to an appeal from the disallowance of a claim against a decedent's estate depends upon a seasonable and proper presentation of the claim to the commissioners. If there is no right to an appeal, the County Court cannot grant relief under the provisions of P.L. 2109. In other words a party must possess a right which he is entitled to assert before he can be heard to say that he has been deprived of it by fraud, accident or mistake.

A claim of an absolute or legal nature against a person at his death which is not presented before the commissioners on his estate for allowance within the time limited by the Probate Court in accordance with P.L. 2838 and 2839, is barred and no recovery can be had thereon. P.L. 2842; Hurlburt Bros. v. Hinde, 86 Vt. 517, 521, 86 A. 739. No particular formalities are required to constitute a sufficient presentation; it is enough that the commissioners are notified that a claim exists against the estate, under circumstances showing that the claimant is seeking to charge the estate with its payment, and are given enough information as to its nature and amount to enable them intelligently to act thereon. Batchelder v. White's Adm'r, 82 Vt. 132, 134, 135, 71 A. 1111; Powell v. Moore's Est., 93 Vt. 476, 479, 108 A. 398. We assume, but do not decide, that the allegation in the amendment that the plaintiff informed the commissioners that he had a claim based upon a breach of warranty which he wished to present before them was adequate so far as the principle just mentioned is concerned. But it is not...