Platt v. Shields

• Decision Date: 04 January 1923
• Citation: Platt v. Shields, 96 Vt. 257, 119 A. 520 (Vt. 1923)
• Parties: CLARA E. PLATT, ADMX. v. CHARLES A. SHIELDS AND DAVID S. CONANT
• Court: Vermont Supreme Court

119 A. 520

96 Vt. 257

CLARA E. PLATT, ADMX. v. CHARLES A. SHIELDS AND DAVID S. CONANT

Supreme Court of Vermont

January 4, 1923

November Term, 1922.

ACTION OF CONTRACT. Pleas, the general issue and complaint in offset on book account. Trial by the court, during and subsequent to the June Term, 1921, Caledonia County, Moulton, J presiding. Judgment for the defendants to recover on their plea in offset. The plaintiff excepted. The opinion states the case. Reversed, pro forma, and judgment for the defendants for a reduced amount.

Judgment reversed, pro forma, and judgment for the defendants to recover 50 cents damages, with interest thereon from January 1, 1921, and costs.

George L. Hunt for the plaintiff.

Stickney Sargent & Skeels for the defendants.

Present: WATSON, C. J., POWERS, TAYLOR, and MILES, JJ.

OPINION

POWERS

The plaintiff is the widow and administratrix of Frederick S. Platt, late of Rutland, who was an attorney of unusual ability and high standing, and also clerk of the district court for the District of Vermont. The defendants are the surviving members of the law firm of Dunnett, Shields & Conant, all of whom are recognized as attorneys of excellent character and standing. Especially is this true of the senior member of the firm, the late Alexander Dunnett, who was a lawyer of conspicuous ability and attainments--a fact of which the members of this court have abundant knowledge, and to which they attest with pleasure.

The controversy grows out of the following facts: Platt lost his life on December 10, 1918, in an accident which occurred on the Boston & Maine Railroad, while it was being operated by the government. The plaintiff first placed her claim for damages in the care of H. Russell Platt, a brother of the deceased and a lawyer practicing in Chicago. Later, it was decided that a local attorney could handle the matter to better advantage, and the plaintiff employed Dunnett, Shields & Conant. This was on or about December 28, 1918, and from that time on, that firm had full charge and management of the claim. They brought an action in the district court against the Director General of Railroads, and all attempts at a settlement having failed, the case was brought to trial before a jury, and a verdict for the plaintiff for $ 23,500 was obtained. The defendant carried the case to the Circuit Court of Appeals, sitting in New York City, where the judgment on the verdict was, in due time, affirmed. Dunnett, Shields & Conant collected the judgment, deducted therefrom the amount charged for their services and disbursements, and remitted the balance to the plaintiff. The charge for their services was $ 5,000. The plaintiff insists that this charge is unreasonable and excessive, and sues to recover the amount of the overcharge. The defendant answered by a general denial and a complaint in offset on book account, claiming thereunder the charges and disbursements so deducted from the avails of the judgment, and an item of 50 cents for cash paid out after the remittance to the plaintiff as aforesaid. The case stood for trial at the June Term, 1921, of the Caledonia county court, being there set to the jury by the plaintiff. Judge Wilson was regularly assigned to preside at that term, and Charles W. Thurber and Oscar C. Woodruff were the assistant judges. Judge Wilson was disqualified to sit in this case, and Judge Moulton was assigned to preside at the trial of it. Arrangements were so made that Judge Wilson and Judge Woodruff proceeded with a jury trial in the regular county court room at St. Johnsbury and Judge Moulton and Judge Thurber, sitting in another part of the building, entered upon the trial of this case, an agreement having been made that the whole case should be tried by the court. The jury trial ended on September 9. On that day, Judge Wilson directed that this case, then being tried as above stated, be entered "With court, Moulton, Presiding Judge," and then adjourned the term without day. The trial of this case continued until late in the afternoon of September 10, when the evidence was completed. Thereafter, and before any consultation had been had between Judges Moulton and Thurber to determine upon the facts, the latter died. The plaintiff seasonably objected to the completion of the case by Judge Moulton, and this objection being overruled, excepted. Thereupon, Judge Moulton, acting alone, proceeded to find the facts, filed the same, and rendered judgment "for the defendants to recover upon their declaration in offset in accordance with their specification on file." We take the terms of this judgment from the docket entries, to which we may refer, since the record before us does not show them. Brown v. Vermont Mutual Fire Ins. Co., 92 Vt. 272, 102 A. 1042.

The plaintiff suggests that the whole procedure whereby two courts were at the same time being conducted, and each (as we shall see) acting as the county court of Caledonia County, was without warrant of law. But she does not brief this claim nor rely upon it. So, of course, we do not consider it, though we do not overlook its importance.

We start our examination of this record, then, upon the assumption that the court before which this trial commenced was lawfully constituted and legally empowered to proceed to final judgment therewith. We will consider the exceptions saved in the order in which they are discussed in the plaintiff's brief. So far as the authority of the trial court is concerned, two questions are for consideration: (1) Could that court proceed after the adjournment of the term? and, (2) could Judge Moulton proceed after Judge Thurber's death? G. L. 1603 provides that one judge of the county court may try and determine a cause pending in that court when the other judges are disqualified. G. L. 1607 provides that the county court may, in vacation, hear and render judgment in a cause wherein a jury trial is waived. G. L. 1608 provides that such hearing may be held and such judgment rendered by the superior judge who presided at the last stated term, without the assistant judges, and that such judgment shall have the same effect as if rendered at the term. These are the only statutory provisions relied upon to support the authority of the court below to proceed as it did. As already suggested, it was all the time the county court that was acting--no new tribunal being created by the statute. Thorworth v. Blanchard, 87 Vt. 38, 87 A. 52, Ann. Cas. 1916A, 1226. The authority of the county court to try jury-waived cases in vacation is fully provided for in G. L. 1607. This section, however, contemplates action by a quorum of that body, and does not, standing alone, authorize a single judge thereof to act. G. L. 1608 does authorize action in such cases by a single judge, provided he is the superior judge who presided at the last stated term. None other is therein referred to, and it is only by force of G. L. 1610 that any other superior judge can act in such matters, and then only by agreement of parties. As applied to this case, section 1608 refers to Judge Wilson, and not Judge Moulton; for the former presided at the term, while the latter only presided at this trial.

So far, then, as Judge Moulton's authority to proceed alone is concerned, it must be found, if anywhere, in G. L. 1603, and depends wholly upon the meaning of the word "disqualified" as used therein. Ordinarily, this term is used in the law to characterize one who has become divested of legal capacity to act as a court or juror by reason of interest or relationship. State v. Blair, 53 Vt. 24. But as used in this section of the statutes it has a much broader meaning. This is plainly indicated by the legislative history of the provision. It originated in the act found on p. 4, Acts of 1801, wherein it was provided that if two of the county court judges were interested in a case, or related to either party within the fourth degree, or had been of counsel for either party, the remaining judge could try the case. In 1813, a provision was added extending this authority to a case from the trial of which the other two judges were necessarily absent. Acts 1813, p. 9. An amendment was passed in 1822, but it does not affect the question here. Acts 1822, p. 18. Down to the adoption of the Revised Statutes in 1839, the law stood in this way, and it was only the disqualifications enumerated that counted. As carried into the revision named (R. S. Ch. 25, § 28) the provision read: "When the other judges are legally disqualified to act * * *." This language stood until 1880, when the provision became R. L. 797, and was made to read, "Where the other judges are disqualified," etc. It thus appears that the conditions granting the authority of a single judge of the county court to act have been, from time to time, extended, until at last they embrace any disqualification, whether one recognized by the law or not. Even before the word "legally" was dropped, it was said by this court in State v. Blair, supra, that it was the evident intention of the Legislature to provide a court that should be legally competent to try causes when the other members of the court were unable to participate; that physical disability was within the meaning of the expression "legally disqualified" as used in the statute; and that unless such construction was adopted, courts might have to suspend and begin all over. Nothing that was said in that case about what was there done by the presiding judge in the absence of both assistants was intended to limit or qualify the construction above indicated. We are fully satisfied of the soundness of the holding in that case, and think the doctrine of it is especially applicable to the situation presented in this case.

Nor should so useful a provision of...