Nelson v. Marshall

• Decision Date: 31 August 1904
• Citation: 58 A. 793,77 Vt. 44
• Parties: NELSON v. MARSHALL.
• Court: Vermont Supreme Court

58 A. 793

77 Vt. 44

NELSON

v. MARSHALL.

Supreme Court of Vermont. Windsor.

Aug. 31, 1904.

Action by Helen J. Nelson against George F. Marshall. Petition for new trial after Judgment in favor of defendant. Granted.

Argued before ROWELL, C. J., and MUNSON, START, WATSON, STAFFORD, and HASELTON, JJ.

J. C. Enright, E. R. Buck, and Edward H. Deavitt, for petitioner.

Gilbert A. Davis, for petitionee.

HASELTON, J. This was a petition to this court, under V. S. 1662, for a new trial of an action tried by jury at the June term, 1903, of the Windsor county court. The case was heard on a motion to dismiss the petition. The petitioner was defeated on trial in the county court, and the petition sets out facts showing that the petitioner took exceptions on trial, that a bill of exceptions was allowed and signed by the presiding Judge, but that, without fault on the part of the petitioner, and solely by reason of accident or mistake on the part of the judge, the bill of exceptions could not be filed until more than 30 days after the final adjournment of the term of court at which the trial was had. In such a state of facts the right of the petitioner to have the cause passed to this court in the usual way on exceptions was lost. Under our decisions it is equally clear that a writ of error was not an available remedy, since the exceptions taken involve a consideration of the evidence, which is not a part of the record. Unless this petition lies, the excepting party is without remedy. V. S. 1662, provides that "the Supreme Court may grant a new trial in a cause determined by such court, or a county court, on petition of either party subsequent to the term of the court at which the original judgment was rendered." Nothing is said in this section with reference to the grounds on which a new trial may be granted; but V. S. 1664, which limits the time for bringing the petition, shows the broad scope of the statute. The reasons assigned may be matter of law, or such reasons may be the discovery of new evidence, or other matter of fact. The phrase "or other matter of fact" appears for the first time in the General Statutes enacted in 1862, and was obviously intended to make apparent the breadth of scope of the section which is now V. S. 1662. The statute under which this petition is brought is remedial and equitable in its nature, is limited by no restrictions of language, and should be liberally construed. The absolute inability of the presiding judge to remedy the mistake makes the case analogous to cases in which a party lost the benefit of exceptions by reason of the death or illness of the presiding judge. Such cases are the following: State v. Weiskittle, 61 Md. 51; Crittenden v. Schermerhorn, 35 Mich. 370; Bennett v. Steamboat Co., 16 C. B. 29; Taylor v. Simmons, 116 N. C. 70, 20 S. E. 961; Wright v. Judge, 41 Mich. 726, 49 N. W. 925. It is not deemed proper for this court to hear and determine the questions presented by the bill of exceptions accompanying the petition, and to grant or refuse a new trial, according as error is or is not discovered. To pursue such a course would be to negate the statute, and to overrule our decisions with respect to the effect of a failure to have a bill of exceptions signed and filed within the time limited by law. The bill of exceptions not having been seasonably filed, the entry of exceptions must have been struck from the clerk's docket, the clerk could not file or receive the bill and the statement signed as a bill of exceptions became a nullity, so far as concerned the bringing of the questions therein stated before this court for determination. Nor should the principle here apply which requires the petitioner for a new trial in some way to satisfy...