In re Carleton, 800.
| Decision Date | 06 October 1936 |
| Docket Number | No. 800.,800. |
| Citation | 187 A. 423 |
| Court | Vermont Supreme Court |
| Parties | In re CARLETON. |
Exceptions from Orange County Court; Alfred L. Sherman, Judge.
Proceedings in the matter of Jessie Carleton, an alleged insane person. From a judgment of the county court granting a motion to dismiss Jessie Carleton's appeal from an adjudication of the probate court, she appeals.
Judgment reversed, and cause remanded, with directions.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
John A. Gordon, of Barre, for appellant.
Wilson, Carver, Davis & Keyser, of
Barre, forappellee.
May 1, 1935, the probate court within and for the probate district of Randolph, acting under the provisions of P.L. 3982, upon a petition of the selectmen of Williamstown, found and adjudged Jessie Carleton to be an insane and dangerous person and liable to be supported by the state, and issued an order for her removal to the Vermont state hospital for the insane at Waterbury, there to be supported by the state. From such finding, judgment, and order said Carleton was allowed an appeal May 18, to the next stated term of Orange county court. May 30, she caused to be filed in the office of the clerk of said court a certified copy of her application for and allowance of appeal with evidence that notice had been given to the adverse party in accordance with the order of the probate court in compliance with P.L. 3986 and 3015, but did not file a certified copy of the record of the proceedings appealed from as therein required. During the November term of court, to wit, on November 12, appellee filed a motion to dismiss such appeal because of appellant's failure to file the latter document, whereupon she asked leave to file the same then. Her request was denied, and appellee's motion was granted, to which rulings she excepted.
Appellant's first claim is that appellee did not enter an appearance within the time required by P.L. 3007; that she never received notice from the clerk that an appearance had been entered as required by County Court Rule 5, and that there was nothing to indicate an appearance prior to the filing of the motion to dismiss. The docket for the November term, to which we may refer for this information, Piatt, Adm'r, v. Shields & Conant, 96 Vt. 257, 264, 119 A. 520; Brown v. Vt. Mutual Fire Ins. Co.,' 92 Vt. 272, 102 A. 1042, shows that an appearance had been entered before such docket was printed, and the June term was in session several days before the time for entering an appearance expired. If an appearance was entered in open court during that time, the notice required by rule 5 was not necessary, and the contrary not appearing, it will be assumed that an appearance was so entered, since the clerk is presumed to have performed the duties imposed upon him. The exception is without merit.
The next question is whether the motion to dismiss was properly granted. It was, if the county court lacked jurisdiction of the subject-matter because of appellant's failure to file a certified copy of the record of the proceedings appealed from, since want of jurisdiction over the subject-matter, when discovered, necessitates a dismissal, regardless of when or how such fact comes to the court's attention. Fillmore, Adm'r, v. Morgan's Estate, 93 Vt. 491, 108 A. 840. Nor could the county court confer jurisdiction upon itself by allowing papers necessary to perfect the appeal to be filed out of time. Sanders v. Pierce, 68 Vt. 468, 35 A. 377. On the other hand, if the omission to file the papers referred to was ground for dilatory action, only, the motion to dismiss was not seasonably filed, County Court Rule 4; consequently the defect was waived and the motion should have been denied. Wade v. Wade's Adm'r et al., 81 Vt. 275, 69 A. 826; Andrew v. Buck, 97 Vt. 454, 457, 124 A. 74. Among the cases holding that the court lacked jurisdiction because of the defect there complained of are Cole v. Walsh, 97 Vt. 256, 122 A. 664; Rinfret v. Tripp, 97 Vt. 404, 123 A. 430; Essex Storage Electric Company, Inc., v. Victory Lumber Co., 93 Vt. 437, 108 A. 426; Hotel Vermont Co. v. Cosgriff, 89 Vt. 173, 94 A. 496; Small v. Haskins, 29 Vt. 187. But it was held that the defect that appeared in Dependents of Vlahos v. Rutland Restaurant et al., 104 Vt. 188, 157 A. 832; Andrew v. Buck, 97 Vt. 454, 124 A. 74; Boright v. Williams, 87 Vt. 245, 88 A. 735; Wade v. Wade's Adm'r, supra; Mack v. Lewis, 67 Vt. 383, 31 A. 888, did not affect the court's jurisdiction. Of these, Essex Storage Electric Company, Inc., v. Victory Lumber Co., Dependents of Vlahos v. Rutland Restaurant et al., Andrew v. Buck, and Mack v. Lewis were appeals from an inferior tribunal to the county court. The effect of the holding in each is that if the appeal is seasonably claimed and allowed by the lower tribunal, and notice thereof is given to the adverse party as directed by such tribunal, the appellate court has jurisdiction over the subject-matter, and failure seasonably to enter such appeal in that court is a defect that may be, and is, waived unless taken timely advantage of by a proper...
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