Munger v. Verder

• Decision Date: 01 March 1887
• Citation: 8 A. 154,59 Vt. 386
• Parties: MUNGER v. VERDER.
• Court: Vermont Supreme Court

8 A. 154

59 Vt. 386

MUNGER

v. VERDER.¹

Supreme Court of Vermont.

March 1, 1887.

Exceptions from Rutland county court, September term, 1886; Veazey, J., presiding.

Petition under R. L. Vt. § 1428. Said section is: "When a judgment is rendered by a justice upon default, and the defendant * * * is unjustly deprived of his day in court by fraud, accident, or mistake, * * * or when a party * * * is prevented from entering an appeal from the judgment of a justice by fraud, accident, or mistake, the county court of the county may, on petition of the person aggrieved, in its discretion, and on reasonable terms, reverse and set aside the judgment of such justice, and hear and determine such action, and make the necessary orders therein, as if the same had been brought to such court by appeal."

Before hearing on the merits, petitionee moved to dismiss because the petition did not set forth a sufficient cause of action to entitle the petitioner to relief under the statute. Motion overruled, to which petitionee excepted. The petitioner put in evidence the justice's files in the original cause, and the officer's return thereon, which showed that said writ was served upon the petitioner on September 15, 1885, by delivering to him a true and attested copy thereof, and also that the writ was returnable September 21, 1885, and that on that day judgment was entered by default against the petitioner. The petitioner introduced evidence tending to show that said officer's return was untrue; that he had never received a copy of said writ, and had no notice of said action before the judgment therein as aforesaid; and that on the day the writ appeared to have been served, and on the return-day thereof, he was without the state, and did not return until after judgment was entered against him by default. To the admission of which the petitionee excepted. Petitioner also introduced evidence tending to show that he had a good defense to said suit.

It appeared that some days after September 21, 1885, petitioner, with the attorney of the petitionee, went to the office of the justice who signed the writ and rendered the judgment, and before said court the attorney of the petitionee offered to have the judgment stricken off and give the petitioner a hearing, but the latter did not then decide to take a trial, and on October 7, 1885, the petitionee took out execution on said judgment, and petitioner brought his petition and obtained a stay of proceedings. The court, in the exercise of its discretion, upon the evidence held that the petitioner was unjustly deprived of his day in court under the statute, and that said judgment be reversed and set aside without terms, and that the petitioner be allowed to enter said cause. The court held that the petitionee should pay the petitioner's costs; to all of which judgment and orders the petitionee excepted.

J. C. Baker, for petitioner.

This petition is addressed to the discretion of the county court. That discretion is to be exercised whenever the judgment of the justice was by default, and the county court shall find as a fact that the petitioner has been unjustly deprived of his day in court by fraud, accident, or mistake, upon such terms as the court shall adjudge to be reasonable. R. L. § 1428. The supreme court will not, upon exceptions taken, review any matters resting in the discretion of the county court. Mosseaux v. Brigham, 19 Vt. 457; Brown v. Mills, 21 Vt. 68; Downs v. Reed, 32 Vt. 785; Burton v. Barlow, 55 Vt. 434; Lillie v. Lillie's Estate, 56 Vt. 714.

This proceeding is not an action after the course of the common law, but is wholly the creature of the statute, and the whole procedure is created and controlled by the statute. It is a sessions proceeding pure and simple. It is commenced by petition. There are no pleadings or issue formed; no trial by jury; no judgment for the payment of money. Adams v. Newfane, 8 Vt. 271; Chase v. Rutland, 47 Vt. 393. It is an appeal to the discretion of the court, in which the consequences of a failure to comply with the requirements of bail or service are not governed by the law relating to actions according to the course of the common law. Houghton v. Slack, 10 Vt. 520; Durkee v. Marshall, 14 Vt. 559; Brock v. Eastman, 27 Vt. 559. This being a sessions proceeding, it comes to this court in accordance with the statute relating to exceptions in that class of cases, and the judgment cannot be reversed unless this court would grant a writ of certiorari for the same cause. Laws 1882, No. 90. The granting of this writ also rests in the discretion of the court, and it is never granted unless it is shown that substantial injustice has been done. This must be found affirmatively as a fact, and is never presumed. Myers v. Pownal, 16 Vt. 415; Bridge Co. v. Dix, 16 Vt. 446; Lyman v. Burlington, 22 Vt. 131; Pom/ret v. Hartford, 42 Vt. 134; Londonderry v. Peru, 45 Vt. 424; Chase v. Rutland, 47 Vt. 393.

The remedy given by this statutory proceeding for obtaining one fair trial of a legal controversy, commenced in the court of a justice of the peace, is in the discretion of the court for the furtherance of justice, and is a highly meritorious remedy, and is construed liberally. Bradish v. Redway, 35 Vt. 424; Sleeper v. Croker, 48 Vt. 9. The technical rule of law, that parties are estopped to allege the truth by an officer's return or a judgment, has no place in this proceeding. If the court, in the exercise of its discretion, finds that a party has been unjustly deprived of his day in court by fraud, accident, or mistake, it may grant the relief provided by the statute, although that finding is based upon evidence that contradicts an officer's return, or a judgment that the party had notice. Witherell v Qoss, 26 Vt. 748; Kimball v. Kelton, 54 Vt. 177. The statute provides for this remedy upon reasonable terms. Costs are not a matter of right, but rest in the sound discretion of the court, and, the county court having allowed costs to the petitioner in its discretion, this court will not review it. Tyler v. Frost, 48 Vt. 486.

Butler & Moloney, for petitionee.

The ground of the petition is that the officer who served the original writ did not do his duty in not serving a copy upon the petitioner himself, for which reason the latter could not make his defense and is damaged. He should seek his remedy in a suit against the officer. The officer's return is conclusive, and cannot be impeached or contradicted by the parties. Witherell v. Goss, 26 Vt. 748; Alexander v. Abbott, 21 Vt. 476. The petitioner upon trial introduced in evidence the original writ, with the officer's return thereon, thus giving them full credit. He then introduced, against the objection of defendant, testimony impeaching the return. The petitioner should not have been allowed to impeach his own testimony. Cox v. Eayres, 55 Vt. 24. The exceptions show that defendant's attorney, in the presence of the justice who rendered the judgment, offered to have the default stricken off, and to give the petitioner a hearing, but the latter did not decide to take a trial. Such a case is certainly not within the purview of the statute for the relief of persons unjustly deprived of their day in court by fraud, accident, or mistake. The...