J. Leo Johnson v. Hugh Moore

• Decision Date: 04 January 1938
• Parties: J. LEO JOHNSON v. HUGH MOORE
• Court: Vermont Supreme Court

196 A. 246

109 Vt. 282

J. LEO JOHNSON v. HUGH MOORE

Supreme Court of Vermont

January 4, 1938

November Term, 1937.

Disqualification of Judge---Relationship between Judge and Attorney No Disqualification---P. L. 1237, Relationship between Judge and Party, Construed---Right to Open and Close Argument, How Determined---Right to Open and Close in Action on Note Where Fraud Pleaded as Defense---Effect of Failure to Show Prejudice from Denial of Right---Evidence Excluded as Hearsay---Abstract Instructions to Jury Condemned---Purpose of Requests for Instructions---Exceptions to Failure to Comply With Abstract Requests---Exception to Denial of Requests Held Too General---Exception to Denial of Requests by Reference to Numbers---Exceptions to Denial of Requests Held Inadequately Briefed---Mere Statement of Contention Inadequate Briefing.

1. Trial judge was not disqualified because his brother was attorney for one of parties to action.

2. In absence of statutory or constitutional provision to the contrary, relationship between trial judge and attorney in case, no matter how close it may be, does not disqualify judge from acting.

3. P L. 1237, providing that judge is disqualified if related to either party within fourth degree of consanguinity or affinity, is to be given strict construction and applied only to those who are actual parties to suit.

4. Right to open and close argument to jury belongs to party holding affirmative of issue being tried, to be determined by ascertaining from record as it stood when trial began, party against whom judgment would be rendered if no evidence were introduced by either party.

5. In action on note, where defendant filed answer under municipal court rule within five days of return date setting up fraud and deceit in sale of car for which note was given, but neither admitted nor denied allegations of complaint, general denial was not to be considered as pleaded under provisions of P. L. 1574, subd. II, or of municipal court rule III, and was therefore not in case, so that special defense alone being involved, defendant was entitled to open and close argument to jury.

6. Though defendant excepted to denial of his right to open and close argument to jury, to which he was entitled by reason of his reliance upon special defense alone, reversal of judgment for plaintiff was not required in absence of affirmative showing that defendant was prejudiced thereby.

7. In action on note, evidence offered by defendant to support defense of fraud and deceit in sale of car for which note was given, that he learned from certain mechanics and from book used by registration officers that car was not model it was represented to be, held properly excluded as being hearsay since best evidence rule required that mechanics be brought in as witnesses and that book, properly sponsored, be produced.

8. Abstract instructions are to be condemned as imperfect guides to jury in determination of a complicated case, since they would be quite as apt to confuse jury as to clarify their minds as to legal aspects of case.

9. Purpose of requests for instructions is to assist court in making clear to jury legal aspects of case, and to be effective to that end, requests must make clear to court application of law to facts, according to views of counsel who present them.

10. Trial court committed no error in omitting to comply with requests for instructions which merely covered abstract propositions of law, without any suggestions as to how they applied to case on trial.

11. Exception to denial of requests for instructions which merely stated substance of requests without attempting to point out wherein charge fell short of compliance therewith was not sufficient to raise question for review.

12. Exception to failure of court to comply with numerous requests to charge by reference to their numbers is too general to require attention in Supreme Court.

13. Merely calling attention to pages of transcript and sections of statutes without pointing out wherein court failed to comply with requests for instructions was inadequate briefing, since Supreme Court is not required to search record for error.

14. Statement of contention not supported by argument or citation is inadequate briefing and requires no consideration on review.

ACTION OF CONTRACT on note. Plea, that plaintiff made false representations inducing sale of car for which note was given. Trial by jury in Montpelier municipal court, A. C Theriault, Municipal Judge, presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Hugh Moore, pro se.

A. N. McLeod and Theriault & Hunt for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

POWERS

The defendant bought a used car of the plaintiff and gave his promissory note for the unpaid part of the purchase price. The car was not satisfactory to him, and he refused to pay the note. Suit was brought thereon and defended on the ground of false representations inducing the sale. A jury trial in Montpelier municipal court, Judge A. C. Theriault, presiding, resulted in a verdict for the plaintiff for a sum somewhat smaller than the amount of the note. Judgment was rendered accordingly, and the defendant excepted.

When the case was ready for trial below, the defendant objected to Judge Theriault as trial judge, on the ground that he was disqualified because his brother, W. N. Theriault, appeared as attorney for the plaintiff. The judge ruled that he was qualified to try the case and ordered the trial to proceed. The defendant excepted.

There was no error in this ruling. In the absence of a statutory or constitutional provision to the contrary, a relationship between the judge and an attorney in the case, no matter how close it may be, does not disqualify the former from acting. The only relationship which disqualifies one called upon to act in a judicial capacity in this jurisdiction is specified in P. L. 1237 which bars one "related to either party within the fourth degree of consanguinity or affinity." As long ago as Searsburgh Turnpike Co. v. Cutler, 6 Vt. 315, this statute was given a strict construction, and was held to apply only to those who were actual parties to the suit.

The conclusion we have reached upon this exception is sustained by People v. Patrick, 183 N.Y. 52, 75 N.E. 963, 964; Casmento v. Barlow Bros. Co., 83 Conn. 180, 76 A. 361, 362; In re Wunsch's Est., 177 Minn. 169, 225 N.W. 109; and other cases cited in a note to Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510, 83 So. 676, 11 A.L.R. 1321, 1325, and is sanctioned by an unbroken practice extending from the earliest times to this date.

The defendant claimed the right to open and close the argument to the jury. The court ruled against him and he excepted.

Speaking broadly, the right contended for by the defendant belongs to the party holding the affirmative of the issue being tried. To determine how this rule applies to a given case, it is necessary to ascertain from the record, the party against whom judgment would be rendered if no evidence was introduced by either party. This depends upon the record as it stands when the trial begins. So if, as the pleadings stood when this trial began, judgment would have gone against the defendant if no evidence was introduced, the exception was well taken. But if, upon the supposition made, judgment would have gone for the defendant, the exception cannot be sustained. So, here, it all depends upon whether the general issue was in the case, so that it was necessary for the plaintiff to establish his note by proof sufficient to make a prima facie case. Harvey v. Brouilette, 61 Vt. 525, 528, 17 A. 722; Farrington v. Jennison, 67 Vt. 569, 572, 32 A. 641. The record shows that the...