Louis O. Fitzpatrick v. Robert W. Taber

• Decision Date: 16 October 1925
• Citation: 130 A. 587,99 Vt. 216
• Parties: LOUIS O. FITZPATRICK v. ROBERT W. TABER
• Court: Vermont Supreme Court

130 A. 587

99 Vt. 216

LOUIS O. FITZPATRICK v. ROBERT W. TABER

Supreme Court of Vermont

October 16, 1925

October Term, 1925.

ACTION OF TORT for alienation of affections. Plea, general denial. Trial by jury at the April Term, 1924, Windham County, Fish J., presiding. Judgment and verdict for the plaintiff. The defendant excepted. Original petition for new trial filed in Supreme Court. Motion to dismiss exceptions and motions to dismiss petition for new trial. The opinion states the case.

The motion to dismiss the exceptions is denied, as is also the motion to dismiss the petition for a new trial.

A V. D. Piper and F. E. Barber for the defendant.

Carpenter & Clawson for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

PER CURIAM

This is an action of tort to recover damages for the alienation of the affections of the plaintiff's wife, Margaret Fleming Fitzpatrick. A trial was had by jury at the April Term, 1924, of the Windham county court, resulting in a verdict for the plaintiff. During the trial and also after the verdict was rendered, exceptions were saved by the defendant to certain rulings of the court, and his bill of exceptions, signed by Superior Judge Moulton in the absence from the State of Superior Judge Fish who presided at the trial (G. L. 2261), was filed on August 8, 1924, subject to amendment within sixty days. By the exceptions so filed the transcript of the evidence is referred to and made to control.

The plaintiff, by his motion filed, asks that the exceptions be dismissed and the judgment affirmed on two grounds: (1) That the time for defendant to file his amended bill of exceptions expired October 23, 1924, and no date after the expiration of such time was fixed by the court for the filing of such amended bill, as provided by G. L. 2258; (2) that rule 5, § 1, of the amended rules of the Supreme Court, has not been complied with, in that the defendant has not prepared and deposited with the clerk of the court any printed copies of the case, the time for so doing having long since expired; and (3) that rule 6 has not been complied with, in that the defendant has not filed any printed briefs with said clerk, though more than thirty days have elapsed since a completed bill of exceptions can be treated as filed.

It is enough to say of ground (1) that there is nothing on the face of the bill of exceptions showing that no date after October 23, 1924, was fixed by the court for the filing of the amended bill. The motion to dismiss reaches only such defects as are apparent on the face of the bill to dismiss which the motion is filed. Reynolds v. Conway, 61 Vt. 313, 17 A. 842; Champlain Realty Co. v. Brattleboro, 97 Vt. 28, 121 A. 580.

As to grounds (2) and (3), the time of completing the bill of exceptions by filing the transcript, does not appear on the face of the bill sought, by the motion to have dismissed, and so non-compliance with the rules mentioned, is not there shown. By rule 6, § 1, when the bill of exceptions refers to the transcript and makes the same controlling, the filing of the transcript is deemed the completion of the exceptions, for the purposes of that and the preceding rule. Therefore as non-compliance with these rules in the respect asserted in the motion does not appear on the face of the bill of exceptions, the motion is unavailing for the same reason stated as to ground (1).

The defendant has filed in this Court an original petition for a new trial on the alleged ground of newly discovered evidence....