Kaeser v. Town of Starksboro
| Citation | 116 Vt. 389,77 A.2d 831 |
| Decision Date | 02 January 1951 |
| Docket Number | No. 1,1 |
| Court | Vermont Supreme Court |
| Parties | KAESER et al. v. TOWN OF STARKSBORO. |
William S. Burrage, Middlebury, for plaintiffs.
Louis Lisman, Burlington, for defendant.
Before SHERBURNE, C. J., JEFFORDS, CLEARY and BLACKMER, JJ., and HULBURD, Supr. J.
After the decision in this case at the May Term, 1950, 116 Vt. 251, 73 A.2d 881, where we held that the selectmen of the defendant town were authorized by the action taken at the town meeting of October 6, 1947, to purchase the snow plow unit in question, the defendant filed this petition for a new trial, in which it alleges that, at the properly warned annual Town meeting in 1950, under an article in the warning therefor 'to pass on the minutes of regular and special meetings not yet approved,' the minutes of the October 6, 1947, meeting were read, and a motion was made 'in order to correct the minutes' that the vote taken at that meeting under Article 14 of the warning therefor be amended to read: 'Moved to buy a four wheel drive truck but not a Marmon Herrington,' and that such amendment was made before our decision, but after the trial in county court. The petition further alleges that since the issue of the authority of the selectmen was tried on the recorded minutes of the town meeting, the amended minutes put the action of the town in an altogether different light, and that it would shock the conscience of any court to deny a new trial when it appears that the case was tried below on a document which did not correctly set forth the proceedings of which it was supposed to be a record; that no question of diligence is presented here, for the amended record did not come into existence until after the trial and parol evidence to correct the record would not have been admissible at the trial; and that no question is involved of misleading the plaintiffs, since there is no evidence that they relied on the original minutes and the issue has been narrowed by agreement as to whether the selectmen had authority, and in any event the evidence in the transcript clearly shows that the attorney of the plaintiffs attended the meeting and therefore must have been familiar with the proceedings thereat.
Other than that the truth of the petition to their best knowledge and belief is sworn to by the selectmen and attorney of the defendant town, it is only supported by the affidavit of Ruby B. Craig, that she was town clerk of the defendant town on March 7, 1950, having been duly elected and qualified at the annual meetings in 1949 and 1950, that she attended the annual meeting on March 7, 1950, and took the record of the proceedings thereat, and that the attached certified copies of the warning and minutes of such meeting are true, accurate and complete copies.
The petition has been met by what is termed a motion to dismiss on the grounds that the record on its face fails to aver and show either in the petition or by the attached affidavits,
(1) that the defendant or its attorney did not know of the purported newly discovered evidence, and that said lack of knowledge was not due to the negligence or lack of attention of the defendant or its attorney;
(2) that there has been no lack of diligence on the part of the defendant or its attorney in failing to discover and produce the evidence which is claimed to be newly discovered; and
(3) the action taken by the defendant or its attorney to discover the newly discovered evidence so that the Court can see for itself whether or not the required diligence was exercised by the defendant or its attorney.
Before discussing the merits of the motion we first consider defendant's claim that the defects alleged are proper subjects of a demurrer and not a motion to dismiss. We have held in several cases that defects in a declaration or complaint that pertain to the right of recovery on the merits cannot be taken advantage of by a motion to dismiss. Lynch's Adm'r v. Central Vermont Ry. Co., 89 Vt. 363, 366, 95 A. 683; Clement v. Graham, 78 Vt. 290, 305, 306, 63 A. 146, and cases cited. A motion to dismiss is in the nature of a plea in abatement, and is not used for testing the right of recovery on the merits, but only for impeaching the correctness of the proceedings for the purpose of abating the action. Alexander v. School District No. 2, 62 Vt. 273, 276, 19 A. 995; Marsh v. Graves, 68 Vt. 400, 35 A. 335; Taft v. Taft, 82 Vt. 64, 71 A. 831.
Undoubtedly a demurrer would have been the better way to test the sufficiency of this petition, but in Quigley v. Wiley, 108 Vt. 173, 183 A. 339, a motion to dismiss was availed of in a similar case. In Hemmenway v. Lincoln, 82 Vt. 465, 73 A. 1073, a similar case was heard on the pleadings, and in Flint v. Holman, 82 Vt. 513, 74 A. 232, the hearing was on the affidavits in support of the petition. In all of these cases the petitions were 'dismissed.' Had the plaintiffs demurred they could have prayed that the petition be dismissed. This motion to dismiss is in effect a demurrer and we so treat it regardless of what it is called. See Johnson and Wight, Inc. v. Rickard, 115 Vt. 118, 120, 52 A.2d 786.
In order to prevail upon this petition it is necessary for the defendant to show by the attached affidavits that its situation regarding the new evidence is not dut to lack of diligence on its part or on the part of its counsel. It must not only show that it did not know about it, but it must show that its lack of knowledge was not due to negligence or lack of attention to the requirements of its case. It must state the action taken and the circumstances so that the Court can see for itself whether the required diligence was exercised. It must also show that the new evidence is of such character as to give reasonable assurance that it will work a different result upon a retrial. State v. Baker, 115 Vt. 94, 112, 53 A.2d 53; Dunbar v. Farnham, 109 Vt. 313, 324, 196 A. 237, 114 A.L.R. 996; State v. Hathorn, 100 Vt. 431, 435, 138 A. 733; Picknell v. Fulton, 89 Vt. 51, 55, 94 A. 104; Ploof v. Putnam, 83 Vt. 494, 76 A. 145.
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...motion to dismiss certified to us, is in substance and effect the equivalent of a demurrer under the Practice Act. Kaeser v. Town of Starksboro, 116 Vt. 389, 391, 77 A.2d 831. Its function and purpose is to test the sufficiency of the complaint, and it admits the truth of facts well pleaded......
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