Johnson v. Moore, No. 1644.

Docket NºNo. 1644.
Citation196 A. 246
Case DateJanuary 04, 1938
CourtUnited States State Supreme Court of Vermont
196 A. 246

JOHNSON
v.
MOORE.

No. 1644.

Supreme Court of Vermont. Washington.

Jan. 4, 1938.


196 A. 247

Exceptions from Montpelier Municipal Court; A. C. Theriault, Municipal Judge.

Action upon a promissory note by J. Leo Johnson against Hugh Moore. Judgment for the plaintiff, and defendant brings exceptions.

Judgment affirmed.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Hugh Moore, of Windsor, pro se. Theriault & Hunt, of Montpelier, for plaintiff.

POWERS, Chief Justice.

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 Estate, 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 rignt 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 return day of the writ was May 17, 1937; and that within five days thereafter the defendant

196 A. 248

filed an answer setting up fraud and deceit in the sale of the car for which...

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19 practice notes
  • Turner v. Bragg, No. 1145.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 1944
    ...v. Town School District, 110 Vt. 522, 528, 9 A.2d 117; Gould v. Gould, 110 Vt. 324, 331, 6 A.2d 24; Johnson v. Moore, 109 Vt. 282, 288, 196 A. 246; Butler, Adm'r, v. Favreau, 105 Vt. 382, 384, 166 A. 1; Town of Brattleboro v. Carpenter, 104 Vt. 158, 175, 158 A. 73; Higgins v. Metzger, 101 V......
  • Russell v. Pilger, No. 76.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 2, 1944
    ...not entitled to a literal compliance therewith, for charging abstract propositions of law is condemned. Johnson v. Moore, 109 Vt. 282, 287, 196 A. 246; Green v. Stockwell, 87 Vt. 459, 464, 89 A. 870; State v. McDonnell, 32 Vt. 491, 536. Moreover, the whole request was substantially complied......
  • Johnson v. Hardware Mut. Cas. Co., No. 1267.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 4, 1938
    ...130 A. 758; Temple v. Duffy, 96 Vt. 114, 118, 117 A. 101; State v. Searles, 108 Vt. 236, 241, 184 A. 701; Johnson v. Moore, 109 Vt. 282, 196 A. 246, 248. It is only just to the presiding judge that the fault found with his charge shall be made reasonably plain to him, so that he may, if upo......
  • State v. Deutsch, No. A--43
    • United States
    • United States State Supreme Court (New Jersey)
    • February 6, 1961
    ...with comparable enactments. See Casmento v. Barlow Bros. Co., 83 Conn. 180, 76 A. 361 (Sup.Ct.Err.1910); Johnson v. Moore, 109 Vt. 282, 196 A. 246 (Sup.Ct.1938); Annotation, Relationship to attorney as Page 206 disqualifying judge, 50 A.L.R.2d 143 (1956); Note, 'Disqualification of Judge fo......
  • Request a trial to view additional results
19 cases
  • Turner v. Bragg, No. 1145.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 1944
    ...v. Town School District, 110 Vt. 522, 528, 9 A.2d 117; Gould v. Gould, 110 Vt. 324, 331, 6 A.2d 24; Johnson v. Moore, 109 Vt. 282, 288, 196 A. 246; Butler, Adm'r, v. Favreau, 105 Vt. 382, 384, 166 A. 1; Town of Brattleboro v. Carpenter, 104 Vt. 158, 175, 158 A. 73; Higgins v. Metzger, 101 V......
  • Russell v. Pilger, No. 76.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 2, 1944
    ...not entitled to a literal compliance therewith, for charging abstract propositions of law is condemned. Johnson v. Moore, 109 Vt. 282, 287, 196 A. 246; Green v. Stockwell, 87 Vt. 459, 464, 89 A. 870; State v. McDonnell, 32 Vt. 491, 536. Moreover, the whole request was substantially complied......
  • Johnson v. Hardware Mut. Cas. Co., No. 1267.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 4, 1938
    ...130 A. 758; Temple v. Duffy, 96 Vt. 114, 118, 117 A. 101; State v. Searles, 108 Vt. 236, 241, 184 A. 701; Johnson v. Moore, 109 Vt. 282, 196 A. 246, 248. It is only just to the presiding judge that the fault found with his charge shall be made reasonably plain to him, so that he may, if upo......
  • State v. Deutsch, No. A--43
    • United States
    • United States State Supreme Court (New Jersey)
    • February 6, 1961
    ...with comparable enactments. See Casmento v. Barlow Bros. Co., 83 Conn. 180, 76 A. 361 (Sup.Ct.Err.1910); Johnson v. Moore, 109 Vt. 282, 196 A. 246 (Sup.Ct.1938); Annotation, Relationship to attorney as Page 206 disqualifying judge, 50 A.L.R.2d 143 (1956); Note, 'Disqualification of Judge fo......
  • Request a trial to view additional results

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