Keefe v. Drake
| Decision Date | 01 July 1913 |
| Citation | 87 A. 347,87 Vt. 53 |
| Court | Vermont Supreme Court |
| Parties | KEEFE v. DRAKE. |
Exceptions from Franklin County Court; Zed S. Stanton, Judge.
Petition by J. F. Keefe against E. T. Drake to set aside a justice's judgment under Pub. St. § 2023. Petition dismissed, and petitioner excepts. Reversed, petition sustained, and judgment of the justice set aside.
Elmer Johnson, of St. Albans, for petitioner.
H. P. Dee, of St. Albans, for petitionee.
This is a petition to reverse and set aside a judgment rendered by a justice on default for that the petitioner was unjustly deprived of his day in court by accident or mistake. The petition was dismissed below, with costs.
The writ was returnable December 15, 1910. The bill of exceptions shows that it "appeared" that the attorneys of the parties, at the request of the petitioner's attorney, made a verbal agreement out of court to continue the case to December 19, 1910; that on that day, at the request of the petitionee's attorney, they made a further verbal agreement out of court "to hold the case open until after the holidays, and no day was then fixed for the trial." The bill further states that the justice did not appear at the time and place of the return of the writ on the 15th of December, nor on the 19th, and was not present when said continuances were agreed upon. It further states that about the middle of January, 1911, the petitionee's attorney made entries on the original writ, which were signed by the justice, as follows: "Continued by agreement of parties to December 19, 1910, at same place and hour." "Dec. 19, 1910, continued at request of plaintiff to January 25, 1911, at same place and hour." The bill further states that on the 25th of January the justice appeared at the place of return and made the following entry: "Case called, plaintiff appeared, defendant did not appear and was defaulted," etc. The exceptions further state that the petitioner claimed that there was no binding agreement between the attorneys that the case should be tried the 25th of January; that that date had been suggested as a day when the case might be tried if both parties were able to attend to it; that he was not able to attend to it that day, and so notified the petitioner's attorney the 24th of January; that he did not know of the making of the entries of continuance on the writ; that the justice had lost jurisdiction of the case and had no authority to act in the matter unless the parties actually appeared in court and submitted themselves to his jurisdiction. On the other hand, the exceptions show that the petitionee claimed that the case was regularly continued to January 25th, of which the petitioner had full notice and knowledge, and that it was his fault that he did not have a hearing that day. As to what the proof was in respect of these various claims, a transcript of the testimony is referred to and made controlling. The exceptions contain what is denominated therein "original findings of facts" and "additional findings of facts."
The "original findings" contain nothing that conflicts with what is stated from the exceptions. But they contain in addition what the claims of the parties were and what the tendency of their evidence. Thus they say that the petitioner claimed, and his evidence tended to show, that there was an agreement to hold the case open, and that he was not aware that the 25th of January had actually been agreed upon for trial; that there was some talk of having it tried that day, but that the agreement, if any there was, was merely tentative, and that he did not understand that a trial would be had that day unless he agreed to it; that his counsel called up the...
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Wescott v. Briere
...our cases as far as I can find. Indeed it seems to me that the validity of an agreement such as we have here is impliedly recognized in Keefe v. Drake State v. Bruce, cited by the majority. The reason on which the rule of estoppel is often based in such cases is that to hold otherwise would......
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Wescott v. Briere
...the effect would have been had the instant case been held open for less than three months, and whether under the authority of Keefe v. Drake, 87 Vt. 53, 87 A. 347, such an indeterminate continuance discontinued the case. But this case was held open for more than three months before it was b......