Matilda Saund v. Carl P. Saund

• Decision Date: 02 February 1927
• Parties: MATILDA SAUND v. CARL P. SAUND
• Court: Vermont Supreme Court

136 A. 22

100 Vt. 176

MATILDA SAUND v. CARL P. SAUND

Supreme Court of Vermont

February 2, 1927

October Term, 1926.

PETITION FOR DIVORCE on grounds of intolerable severity and refusal to support. Heard by court at September Term, 1925 Washington County, Thompsono, J., presiding. Case being undisposed of during session, on adjournment was left "with the court." During vacation findings of fact signed by all the judges were filed, and at same time decretal order signed by presiding judge alone was filed granting divorce for intolerable severity in accordance with facts found, and awarding alimony. The petitionee excepted.

Exceptions dismissed.

T. Tracy Lawson for the petitioner.

Theriault & Hunt for the petitionee.

Present: WATSON, C. J., POWERS, SLACK, and FISH, JJ., and MOULTON, Supr. J.

OPINION

FISH

This is a petition for divorce which was brought to the Washington county court and heard at the September Term, 1925. It was not disposed of during the session, and on the adjournment thereof was entered "with the court."

Thereafter, and during vacation, findings of fact were filed and at the same time a decretal order. The former was signed by all the judges and the latter by the presiding judge alone. By the terms of the decretal order the petitioner was granted a divorce for intolerable severity according to the facts found and on file in the case, and alimony was awarded.

The form and language of the decretal order clearly indicate that it was intended as an order of the court in which all the judges were to join. It was necessary as a matter of law that at least a majority of the judges should sign it in order to make it effective. The presiding judge, acting alone, could not do this, nor could he act for the other judges.

G. L. 1607 provides that the county courts may, in vacation after the adjournment of a stated term, enter judgment in a case fully heard during such term. This provision of the statute was enacted in 1898. Formerly when cases were entered "with the court" judgment could not be entered after the adjournment of the term except upon assent of the parties. Yatter v. Miller, 61 Vt. 147, 152, 17 A. 850. But since the passage of the act this entry is effective for the purpose of entering judgment in vacation, in cases where this may properly be done, without the consent of the parties. However, the authority and jurisdiction of the county court in vacation is now only what the statute gives it. Barnes v. Albert, 87 Vt. 251, 88 A. 815; Morgan v. Gould et al., 96 Vt. 275, 278, 119 A. 517.

It was held by this Court in Platt's Admr. v Shields & Conant, 96 Vt. 257, 265, 119 A. 520, that G. L. 1607 contemplates action by a quorum of the county court, which means of course at least a quorum, and does not, standing alone, authorize a single judge to act. In that case there were facts that gave authority to the presiding judge to act without the concurrence of his associates. Here there are...