Mutual Life Insurance Company v. N. Will Foster

• Court: Vermont Supreme Court
• Writing for the Court: TAYLOR
• Citation: Mutual Life Insurance Company v. N. Will Foster, 93 A. 258, 88 Vt. 503 (Vt. 1915)
• Decision Date: 06 February 1915
• Parties: MUTUAL LIFE INSURANCE COMPANY v. N. WILL FOSTER

93 A. 258

88 Vt. 503

MUTUAL LIFE INSURANCE COMPANY v. N. WILL FOSTER

Supreme Court of Vermont

February 6, 1915

January Term, 1915.

PETITION to the county court to set aside a default judgment. Heard on demurrer to the petition at the June Term, 1914 Addison County; Stanton, J., presiding. In vacation, and on November 27, 1914, an order was filed, signed by the presiding judge and the two assistant judges, and reciting that "in order to "prevent a failure of justice', and strictly as a matter of discretion, it is hereby ordered that the demurrer be overruled and petition adjudged sufficient; that the judgment named in the petition against the petitioner as trustee be set aside and a new trial granted the petitioner." The petitionee excepted. The opinion states the case.

Judgment affirmed and cause remanded.

Charles I. Button for the petitionee.

Sherman R. Moulton for the petitioner.

Present POWERS, C. J., WATSON, TAYLOR, SLACK, AND HEALY. JJ.

OPINION

TAYLOR

This petition was brought to the June Term, 1914. of Addison county court. Therein it is alleged, in substance that on or about Jan. 1, 1913, the petitionee brought suit in Addison county court against one Herbert T. Taylor and summoned the petitioner as trustee; that the suit was entered in court Jan. 10, 1913, that on Jan. 11, 1913, the petitioner duly entered its appearance by its attorney; that the petitionee caused a default to be entered against the defendant on May 7, 1913; that at the June Term, 1913 judgment was entered without hearing against the defendant and the petitioner as trustee, the clerk to assess the damages; that the clerk assessed the damages at the sum of $ 425, with costs of $ 20, without giving notice thereof to petitioner's attorney; that the case was considered in court out of its order on the docket without notice to the petitioner or its attorney; that at the time of the service of the trustee writ upon it the petitioner had in its hands as the goods, chattels and credits of defendant Taylor the sum of $ 295.95, and that then nor since has it had in its hands other goods, effects and credits of the said Taylor; that the petitionee demands the sum of $ 445, and interest thereon from the petitioner and refuses to accept said sum of $ 295.95 in satisfaction of the petitioner's liability; that the petitioner has at all times been ready to disclose under oath the amount of funds and credits of said Taylor which it had in its possession; that it has filed no written disclosure, but was ready upon notice of the proceedings in court to appear and make full disclosure and submit itself to examination under oath, but was prevented from so doing by the fact that no notice was given to it or to its attorney; that by reason of the premises the petitioner has been unjustly deprived of a hearing in said case by fraud, accident or mistake. The prayer of the petition is that the judgment may be set aside and a new trial granted the petitioner in order that the true amount of the funds in its hands as trustee may be ascertained, and for stay of proceedings pending the petition. The petitioner is described in the petition as an insurance corporation organized and existing under the laws of New York and having its principal office in the city of New York.

The petitionee demurred to the petition, specifying five separate grounds of demurrer. There was a hearing on the demurrer, and thereupon the court ordered that the demurrer be overruled and the petition adjudged sufficient; that the judgment against the petitioner as trustee be set aside and a new trial granted "in order to prevent a failure of justice and strictly as a matter of discretion." To this order the petitionee excepted on all the grounds specified in the demurrer and on the additional ground "that the order of court attempts to decide a question of law as a matter of discretion and assumes to grant a new trial when no trial has been had, and the question of a new trial is improperly before the court. "

The grounds of the demurrer assume, and the petitionee's argument here proceeds upon the theory, that the court below was acting solely under P. S. 2017, which provides for setting aside judgment upon default rendered by a county court, on the ground of fraud, accident or mistake. The petition is apparently framed with a view to this statute but the county court was not confined to the relief therein contemplated. It was at liberty to treat the petition as a petition or motion invoking the exercise of its discretionary power over its own judgments. Johnson v. Shumway, 65 Vt. 389, 391, 26 A. 590. While the court...