Jenness v. Simpson

• Decision Date: 09 January 1911
• Citation: 84 Vt. 127,78 A. 886
• Court: Vermont Supreme Court
• Parties: JENNESS v. SIMPSON.

78 A. 886

84 Vt. 127

JENNESS

v. SIMPSON.

Supreme Court of Vermont. Orleans.

Jan. 9, 1911.

Exceptions from Caledonia County Court; Willard W. Miles, Judge,

Action by Oliver H. Jenness against Walter Simpson. There was a verdict and judgment for plaintiff, and defendant brings exceptions. Reversed and remanded.

Defendant's ninth, tenth, thirteenth, fifteenth, and sixteenth requests to charge were as follows:

"(9) If the jury find that the divorce in question is void because a fraud was perpetrated on the South Dakota court in respect to Mrs. Simpson being a bona fide resident of that state within the meaning and requirements of its law, and also find that plaintiff was a party to that fraud, and that Mrs. Simpson and defendant intermarried in reliance on the validity of that divorce, then plaintiff can recover no damage for anything that transpired after the granting of said divorce.

"(10) If the jury find that the divorce in question is void because of any collusive stipulation in the contract in question, and the subsequent consummation of that stipulation, and find that plaintiff was a party to such stipulation, and its fulfillment, and that Mrs. Simpson and defendant intermarried in reliance on the validity of said divorce, then plaintiff can recover no damages for anything that occurred after the granting of said divorce."

"(13) The deed in question is not 'void' in the sense that it is worthless, but, on the contrary, under the evidence in this case, is such a deed as will be perfected in a court of equity as a valid conveyance. See Dietrich v. Hutchinson, 81 Vt. 161 ."

"(15) There is no evidence in this case tending to show the commission of adultery at Sioux Falls, S. D., by defendant and Mrs. Simpson.

"(16) There is no evidence in this case tending to show the commission of adultery by this defendant with Mrs. Simpson between the execution of the contract in question and the granting of the divorce in controversy."

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Howe & Hovey, for plaintiff.

J. W. Redmond, E. A. Cook, and W. W. Reirden, for defendant.

POWERS, J. This is an action on the case for alienation and criminal conversation. The plea is the general issue with notice of special matter, which includes a release of the alleged cause of action. A trial by jury having resulted in a verdict for the plaintiff, the defendant moved that the same be set aside on the ground (among others) that it was excessive. This motion was disposed of by an order which provided that, if the defendant paid to the clerk a certain sum within a time specified, the plaintiff should remit to that sum or the verdict should be set aside, but, if the defendant failed to pay said sum within the time limited, judgment on the verdict should be entered. The time allowed in which to comply with this order was 60 days from the rising of court. To this order the defendant took no exception. The term adjourned July 9, 1909. On September 7th, the defendant having neglected to make payment as required, the clerk entered on the docket: "Judgment on verdict pursuant to order filed July 8th."

Whether the defendant did or did not comply or intend to comply with the requirements of the order, he had the full term of GO days in which to do so. He had the whole of the sixtieth day, and any judgment entered on that day was violative of the terms of the order and premature. Such a judgment is irregular, though not void, and will be reversed or set aside. Nave v. Todd, 83 Mo. 601; Marshall & Ilsley Bank v. Milwaukee Worsted Mills, 84 Wis. 23, 53 N. W. 1126; Salter v. Hilgen, 40 Wis. 363; Teat v. Cocke, 42 Ala. 336. But the defendant has no exception to the judgment, so there is nothing, so far as that is concerned, upon which this court can act.

Numerous exceptions were allowed the defendant during the trial, however, and a bill of these was filed September 8th; the plaintiff protesting. These exceptions the plaintiff moves to dismiss on the ground that they were not seasonably filed. He insists that, notwithstanding the 60 days provided for in the order, the exceptions should have been filed within the 30 days from the adjournment of the term, agreeably to the provisions of P. S. 1981. The defendant replies that the judgment was rendered under the provisions of P. S. 1354, and that the time for filing exceptions is to be computed, under P. S. 1356, from the expiration of the 60 days.

Hall v. Simpson, 63 Vt. 601, 22 Atl. 664, was a case tried at a June term, and, by agreement, left with the court for judgment. Judgment was rendered in the following August. It is said in the opinion of the court that it was not claimed but that the term was to be treated as ending on the day judgment was rendered, and that "in this view the bill of exceptions was to be signed by the presiding judge, and be filed with the clerk within 30 days from that date." But when Mead v. Moretown, 72 Vt. 323, 47 Atl. 1072, came up under similar circumstances, it was held that the term was not extended for the purpose of filing exceptions, and that they should have been filed within 30 days from the rising of court. It was said that the case was not in conflict with Hall v. Simpson, because that case involved only a question of amendment of a statement of facts after the time of filing the same had expired. We need not stop to examine these cases to see whether or not they are in entire accord, for while Mead v. Moretown was pending, No. 35, Acts 1898, was passed, authorizing the county court to enter judgment in vacation in cases fully heard during the term (P. S. 1354), and providing, among other things, that the time for filing exceptions should be computed from the day on which such judgment order is filed in the county clerk's office (P. S. 1356). It is apparent that the case in hand does not come within the letter of this act. The judgment here was rendered at the term. Its vitality was suspended and its character was indeterminate during the GO days; but, so far as judicial action was concerned, it was complete when the court adjourned. The judgment order was filed at the term, and, if we are to follow the strict letter of P. S. 1356, the time for filing exceptions then began to run. But we do not think we should follow the letter of the statute. The case comes within its spirit, and should be controlled by it. The case was fully heard at the term, and, though in one view the judgment was then rendered, to all intents and purposes it was not rendered until entered. Until the 60 days had run, it was entirely uncertain what the judgment would be, and it was equally uncertain that a judgment would ever be; for in one contingency the verdict was to "be set aside and a new trial ordered. The provision for computing the time of filing exceptions may well be taken in a case like this to mean the time when the judgment order becomes finally effective—when all contingencies have passed so that the clerk may know what judgment to enter, and when in compliance with the order he does enter it. So we treat the situation the same as it would be if the case had been left "with the court" and judgment rendered at the time it was entered, and overrule the motion to dismiss the exceptions.

The plaintiff and his wife, Eliza, were married in 1876 and lived in the same neighborhood and on friendly terms with the defendant in Sheffield, Vt., on a farm belonging to Eliza, until about the 1st of June, 1906, when the defendant and Eliza left Sheffield and together went to Sioux Falls, S. D. They remained there until January 14, 1907, when Eliza obtained a divorce from the plaintiff and on the same day married the defendant, with whom she has since lived at Stanstead, P. Q. Some time in September, 1906, the plaintiff located his wife at Sioux Falls, and with one Norton, whom he employed to assist him, he at once went there. He found his wife and had several interviews with her. Finally, on September 24, 1906, at Sioux Falls, the plaintiff entered into a written contract of which the following is a copy: "Know all men by these presents that this agreement made this 24th day of September, 1900, between Eliza J. Jenness, party of the first part, and Oliver H. Jenness, party of the second part, witnesseth: That the party of the first part agrees to give the party of the second part the sum of three thousand ($3,000) dollars, one thousand dollars in cash, the receipt of which is hereby acknowledged, and the balance, two thousand dollars, immediately upon the granting of a divorce by the court in South Dakota, in such county and judicial circuit as the same may be brought, and also to furnish a deed granting unto Perley H. Jenness, of St. Johnsbury, Vermont, all the right, title and interest of party of the first part in and to a certain farm known as the Cutler place where the parties to this contract formerly resided and where Oliver H. Jenness now resides and which he is now occupying, meaning and intending hereby to give, grant and convey all her right, title and interest in and to all lands in the town of Sheffield, county of Caledonia, in the state of Vermont. In consideration of the same the party of the second part hereby acknowledges full satisfaction of any and all differences in law or in equity existing between him and the party of the first part and one Walter Simpson, and hereby agrees that this contract is made by the express understanding that no steps shall be taken in law or in equity in any form against the party of the first part or the said Walter Simpson. Party of the second part further agrees, and does hereby appoint Tore Teigen, an attorney at law in the city of Sioux Falls, South Dakota, to appear and act as his attorney in any suit arising in this state between the parties to this contract and hereby empowers and authorizes the said Tore Teigen to appear and enter into any agreement and stipulation as to the time and place of...