Johnson v. Smith

• Decision Date: 02 November 1905
• Citation: 62 A. 9,78 Vt. 145
• Parties: JOHNSON v. SMITH et al.
• Court: Vermont Supreme Court

62 A. 9

78 Vt. 145

JOHNSON

v. SMITH et al.

Supreme Court of Vermont. Caledonia.

Nov. 2, 1905.

Exceptions from Caledonia County Court; Watson, Judge.

Action by George L. Johnson against A. D. and D. D. Smith. A motion by defendants for judgment on the verdict was overruled, and plaintiff's motion to set aside the verdict and grant a new trial was granted, and defendants bring exceptions. Reversed.

Argued before ROWELL, C. J., and TYLER, MUNSON, START, and POWERS. JJ.

Demmett & Slack, for plaintiff. J. P. Lamson and May & Hill, for defendants.

POWERS, J. The defendants obtained a verdict at the June term, 1900, of Caledonia county court, which the plaintiff moved to set aside for misconduct of certain of the jurors and of the officer who had them in charge. With this motion pending, the case was entered "with the court," and was held by the late Chief Judge Taft, who presided at the trial, until his death. So no judgment had been entered upon the verdict, and no bill of the exceptions taken by the plaintiff during the course of the trial had been signed. In these circumstances, as the law then stood, the plaintiff was without means of having the case reviewed in this court, and was therefore entitled to have the verdict set aside and a new trial granted. See Nelson v. Marshall, 77 Vt. 44, 58 Atl. 793, and cases cited. But before the plaintiff took further action in the matter Acts 1902, p. 44, No. 35. became effective. By this act it is provided that "in case of the decease of a judge of the Supreme Court, any judge of that court may allow or amend exceptions in a case tried by such deceased judge." At the December term, 1903, of Caledonia county court, the plaintiff having withdrawn his former motion, the defendants moved for a judgment on the verdict, and the plaintiff moved to set aside the verdict and for a new trial; the latter motion being based on the plaintiff's inability to obtain a bill of exceptions on which to have his case heard in this court. The defendants' motion was overruled, and the plaintiff's granted; both questions being ruled as matter of law. The case is here on the defendants' exceptions to these rulings.

The determination of the question thus presented depends upon the character of the right which entitles an excepting party to a new trial when the presiding judge dies without signing the bill; for, if the right is a vested one, it is beyond the reach of the Legislature, and the act of 1902 could not devest it. On the other hand, if it springs simply from a rule of procedure, the act of 1902 applies, and the plaintiff is provided with ample means for the prosecution of his exceptions, and the necessity, upon which is based the right to a new trial, is removed, and the reason for such procedure fails. While it is true as a general rule of construction that retroactive effect is not favored, in the absence of terms clearly indicating such legislative intent, it is equally true that a statute which is designed to change the mode of judicial procedure only, where such change relates to the method of enforcing a right and does not affect the right itself, applies to causes of action which accrued prior to its enactment as well as to those which accrue thereafter, and takes effect upon a pending action as it stands when the act became operative, in the absence of a saving clause. Richardson's Adm'r v. Richardson's Ex'rs, 37 Vt. 599, 88 Am. Dec. 622; Murray v. Mattison, 63 Vt. 479, 21 Atl. 532; Willis v. Fincher, 68 Ga. 444; In re Savings Bank, 69 N. H. 84, 39 Atl. 522. Our statute (V. S. 28) is in harmony with this rule of construction; for, while it provides, speaking generally, that no act of the General Assembly shall effect pending suits, it expressly excepts from its provisions acts regulating "practice in courts"—a term broad enough to cover all matters of judicial procedure.

The rule granting a new trial under the circumstances here existing seems to have received its first announcement in Newton et ux. v. Boodle et al., 54 E. C. L. 795, decided in 1847. This case was tried before Chief Justice Tindal, who ordered a verdict for one of the defendants, to which the plaintiffs excepted. A bill of exceptions was prepared and presented to the Lord Chief Justice, but he ultimately died without having sealed the bill. Thereupon, after some delay, judgment having been signed, the plaintiffs...