Lucy Beam, B/N/F v. Herbert W. Fish,

• Decision Date: 04 January 1933
• Parties: LUCY BEAM, b/n/f v. HERBERT W. FISH, ET AL
• Court: Vermont Supreme Court

163 A. 591

105 Vt. 96

LUCY BEAM, b/n/f v. HERBERT W. FISH, ET AL

Supreme Court of Vermont

January 4, 1933

Special Term at Rutland, November, 1932.

Necessity of Final Judgment before Exceptions to Supreme Court Are Allowable---G. L. 2262---Presumptions---Discretion of Court under G. L. 2262---Insufficiency of Facts To Permit Case Being Passed to Supreme Court on Exceptions---Authority of Supreme Court To Dismiss Exceptions of Its Own Motion Where Jurisdiction Involved.

1. Except when county court in its discretion may pass case to Supreme Court before final judgment, under G. L. 2262 exceptions are not to be allowed until judgment has been entered in trial court which is final in sense that case is so far ended that, if no exceptions have been taken, it will go out of court.

2. Whole proceeding must be perfected below and judgment rendered upon which execution may issue before case can be brought before Supreme Court.

3. Final judgment in county court which may be reviewed by Supreme Court is like decree in chancery, which, to be appealable, must dispose of merits of case and settle rights of parties under issues made by pleadings.

4. Judgment is not reviewable in appellate court, where rights of one or more of parties have not been adjudicated, and proceeding, as to them, is pending below.

5. Nothing to contrary appearing, Supreme Court will assume that trial court has undertaken to act under G. L. 2262 authorizing county court to pass exceptions to Supreme Court for hearing and determination before final judgment.

6. Discretion of county court under G. L. 2262 to pass exceptions to Supreme Court for hearing and determination before final judgment is judicial, not absolute.

7. Discretion of county court to pass exceptions to Supreme Court for hearing and determination before final judgment does not extend to situation where judgment was entered in favor of one co-defendant and case continued as to other.

8. Supreme Court could act on its own motion to dismiss exceptions, where controversy had not been ended below and no full and perfect judgment there rendered, since defect touched Court's jurisdiction.

ACTION OF TORT for negligence. Plea, general issue. Case was discontinued as to one defendant, and as to the other two there was a trial by jury at the March Term, 1932, Rutland County, Davis, J., presiding. Verdict was directed for defendant Fish, and cause continued as to defendant Dansro. Judgment was entered on the directed verdict. The plaintiff excepted. The opinion states the case.

Exceptions dismissed.

Novak & Bloomer for the plaintiff.

Jones & Jones (Seymour P. Edgerton of counsel) for the defendant Fish.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

MOULTON

In this case three defendants were sued as joint tortfeasors. The action was discontinued as to one of them, and went to trial, before a jury, against the other two. At the close of the evidence a verdict was directed in favor of the defendant Fish, and the plaintiff excepted. The case was thereupon continued as to the remaining defendant, Dansro, and the jury discharged. Judgment was entered upon the directed verdict and the plaintiff has prosecuted his exceptions to this Court.

No question is presented for review. Except when the county court, in its discretion, may pass a case to the Supreme Court before final judgment, under G. L. 2262, exceptions are not to be allowed until a judgment has been entered in the trial court which is final in the sense that the case is so far ended that, if no exceptions have been taken, it will go out of court. Hayes v. Stewart, 23 Vt. 622, 625. The whole proceeding must be perfected below and a judgment rendered upon which execution may issue, before it can be brought before this Court. Gage v. Ladd, 6 Vt. 174, 176. Such a judgment is like a decree in chancery, which, to be appealable, must dispose of the merits of the case and settle the rights of the parties under the issues made by the pleadings. Nelson v. Brown, 59 Vt. 600, 601, 10 A. 721. "A final judgment or decree from which an appeal may be taken must dispose of the whole controversy presented to the court, and must adjudicate the rights of all the parties to the suit." American Fidelity Co. of Montpelier v. East Ohio Sewer Pipe Co. et al. (Ind. App.), 101 N.E. 101. A judgment is not subject to review in the appellate court where the rights of one or more of the parties have not been adjudicated and the proceeding, as to them, is still pending below. Enmeier v. Blaize (Ind. Sup.), 179 N.E. 783, 784; Daegling v. Strauss, 59 Ind.App. 672, 109 N.E. 920, 921; Chicago & W. I. R. R. Co. v. City of Chicago, 294 Ill. 257, 128 N.E. 462, 463, 464; Dreyer v. Goldy, 171 Ill. 434, 49 N.E. 560; Bush v. Leach (C.C.A. 2nd Circuit), 22 F.2d 296; Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 37 L.Ed. 443, 444, 445, 13 S.Ct. 590; Bowles v. City of Richmond, 147 Va. 720, 129 S.E. 489, 490; Karabacek v. Richards, 249 Mo. 608, 155 S.W. 777, 778; Continental Trust Co. v. Peterson, 76 Neb. 411, 110 N.W. 316, 317; Amarillo, etc., Corp. v. Ellis (Tex. Civ. App.), 10 S.W.2d 733, 734; Erwin v. Black (Tex. Civ. App.), 249 S.W. 1113, 1114; Dabney Oil Co. v. Providence Oil Co., 29 Cal.App. 251, 155 P. 114, 115; Toleikis v. Austin, 197 Mich. 333, 163 N.W. 971; Dickerson v. Western Union Tel. Co., 111 Miss. 264, 71 So. 385, 386.

It is true that, under G. L. 2262, the county court may, in its discretion, pass exceptions to this Court before final judgment. Nothing to the contrary appearing, we will assume that the trial court has undertaken to act under this statute, Ryan v. Barrett, 105 Vt. 21, 162 A. 793, 794; Hannah v. Hannah, 96 Vt. 469 472, 120 A. 886. But the discretion therein mentioned is judicial,...