Nora Downer v. Arthur Battles

• Decision Date: 07 January 1931
• Parties: NORA DOWNER v. ARTHUR BATTLES
• Court: Vermont Supreme Court

152 A. 805

103 Vt. 201

NORA DOWNER v. ARTHUR BATTLES

Supreme Court of Vermont

January 7, 1931

November Term, 1930.

Effect of Filing Bill of Exceptions in Law Case---When Bill of Exceptions Considered Perfected---Motion for Certified Execution in Supreme Court.

1. When defendant's bill of exceptions was filed, jurisdiction of trial court ceased, and its action thereafter in denying plaintiff's motion for certified execution was mere nullity.

2. When bill of exceptions in law case is perfected, it removes from jurisdiction of trial court all questions concerning validity or correctness of judgment rendered.

3. Exceptions in law case are considered as perfected when filed.

4. All judgments, unless otherwise ordered, are treated as taking effect on last day of term, but court has power to enter judgment at any time during term in case ripe for judgment.

5. When exceptions were filed before end of term, trial court's authority respecting every phase of case that entered into or affected judgment ended.

6. Where plaintiff had opportunity to file motion for certified execution with trial court before judgment, and failed to act seasonably, motion therefor will not be entertained in Supreme Court.

ACTION OF TORT for personal injuries received in an automobile accident. Plea, general issue. Trial by jury at the March Term, 1930, Washington County, Buttles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted, but at the October Term, 1930, exceptions were waived in Supreme Court, whereupon plaintiff filed a motion for a certified execution.

Motion denied.

Pierce & Armstrong for the defendant.

Gelsi Monti for the plaintiff.

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

OPINION

Slack

This action is to recover for personal injuries received by the plaintiff in an automobile accident. A trial was had by jury at the March Term, 1930, of Washington county court which resulted in a verdict for plaintiff and the case came here on defendant's exceptions. At the October Term 1930, of this Court the exceptions were waived, whereupon the plaintiff filed a motion for a certified execution. The only question is whether in the circumstances the motion can be granted by this Court provided it is made to appear that the plaintiff is entitled thereto.

From the docket entries, the files, and the record of the trial court, which is all that we have before us, it appears that the March Term, 1930, of the Washington county court opened March 11; that a verdict was returned for the plaintiff in this case May 21; that defendant filed a motion to set aside the verdict May 28; that on June 6 the court "recessed" to July 14, and ordered that "Judgment in all cases tried by jury to be entered as of today"; that accordingly judgment was entered for the plaintiff, and defendant's exceptions were noted on the docket June 6; that defendant's bill of exceptions was signed June 14 and was filed June 23; that on July 17 the plaintiff filed a motion for a certified execution which on the same day was denied and plaintiff's exception to such denial allowed, and that the term of court was finally adjourned July 25, 1930.

The plaintiff contends, in the first place, that when the defendant's bill of exceptions was filed the jurisdiction of the trial court ceased and therefore its action in denying her motion for a certified execution was a mere nullity. We have no doubt that this is so. The effect of an appeal, when perfected, is to remove from the jurisdiction of the trial court all questions concerning the validity or correctness of the judgment or order appealed from. Parkside Realty Co. v. MacDonald, 167 Cal 342, 139 P. 805; Commonwealth v. Sterns Lumber Co., 31 Ky. L. Rep. 439, 102 S.W. 836; United Rys. & Electric Co. v. Corbin, 109 Md. 52, 71 A. 131; AEtna Ins. Co. v. Thompson, 34 Wash. 610, 76 P. 105; Reed v. Bright, 232 Mo. 399, 134 S.W. 653; Getchell v. Great Northern R. R. Co., 22 N.D. 325, 133 N.W. 912; Pryor v. Pryor et al., 164 Ga. 7, 137 S.E. 567. The status of a case after remand is analogous in principle. Nicholas v. Estate of Nicholas, 80 Vt. 242, 67 A. 531. The effect of exceptions, the usual method of transferring law cases to the Supreme Court under our practice, when perfected, is obviously the same. And for this purpose they are considered as perfected when filed.

By an ancient rule of this Court, and also of the county court, all judgments, unless otherwise ordered, are treated as taking effect on the last day of the term. Hoar v. Commissioners of Jail Delivery, 2 Vt. 402; Day v. Lamb, 7 Vt. 426; Bradish v. State, 35 Vt. 452. Such, too, was the practice in Maine, New Hampshire, and Massachusetts. Chase v. Gilman, 15 Me. 64; New Hampshire Strafford Bank v. Cornell, 2 N.H. 324; Goodall v. Harris, 20 N.H. 363; Haynes v. Thom, 28 N.H. 386; Herring et al. v. Polley, 8 Mass. 113. See, also, Blanchard v. Ferdinand, 132 Mass. 389; Nugent v. Boston Consol. Gas Co., 238 Mass. 221, 238, 130 N.E. 488. But the power of the court to enter judgment at any time during the term in a case ripe for judgment is recognized by some of these cases, and cannot be doubted. Freeman on Judgments, Vol. II, par. 976, and note 10.

While the mere...