Reynolds v. Romano

• Decision Date: 20 November 1922
• Docket Number: No. 384.,384.
• Citation: 118 A. 810
• Parties: REYNOLDS v. ROMANO.
• Court: Vermont Supreme Court

118 A. 810

REYNOLDS

v. ROMANO.

No. 384.

Supreme Court of Vermont.

Nov. 20, 1922.

Exceptions from Windsor County Court; Frank L. Fish, Judge.

Action in ejectment by Willie J. Reynolds against Ercolo Romano. Judgment for defendant, and case transferred on plaintiffs exception and petition for new trial. Judgment reversed, and petition granted.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ.

Hugh Moore, of White River Junction, for plaintiff.

Roland E. Stevens and David E. Pingree, both of White River Junction, for defendant.

TAYLOR, J. This is an action of ejectment. It was tried by court at the June term, 1921, in the absence of the presiding judge. At the final adjournment of the terra on September 8, 1921, the case, being undisposed of, was entered "with the court" and stood thus until January 25, 1922, when findings of fact signed by the assistant judges were filed, and judgment was rendered for the defendant Exceptions by the plaintiff were noted. There was an exception to the findings on the ground that they were not supported by the evidence, and to the judgment on the ground that it was not supported by the findings. Such proceedings were had that the time for filing a bill of exceptions was extended to April 1, 1922, within which time the record before us was filed.

The case shows that the record of the proceedings at the trial was kept by Mr. Whay, the then official stenographic reporter; that during the trial numerous exceptions were taken and allowed to the court's rulings; that immediately after the final adjournment of the court Mr. Whay left the state, and has since resided and been employed in the state of Massachusetts; that in compliance with the court rules an order for the transcript was seasonably tiled with the clerk and a copy thereof forwarded to and received by Mrs Whay; but that he has refused and neglected to furnish such transcript, so that the plaintiff was unable to file it and has thereby been deprived of the benefit of his exceptions saved at the trial. The only exception saved to the plaintiff on the record is that taken to the judgment The case was heard on this exception and on a petition for a new trial based on the failure to secure the benefit of his exceptions for the reasons detailed in the bill as stated above. Plaintiff's counsel admits that the exception is of no avail because of a shortage of the findings to support a judgment for the plaintiff. Defendant's counsel have filed a motion to dismiss the exceptions, and much of their brief is devoted to the questions thus raised, but we have no occasion to consider the motion as the plaintiff relies only on the petition for a new trial.

This case was tried in the court below with a companion case in which the parties are reversed. They have been heard here together, though on separate bills of exceptions. Petitions for new trials in both cases have been brought by the plaintiff in this case and defendant in the other. The grounds of both petitions are the same. Counsel for the petitionee, as "friends of the court," suggest want of proper service of the petitions. But their appearance in opposition to the petitions is general. Besides, they have filed affidavits in defense and have argued the cases on their merits. This obviates any question of defective service. Blood v. Crandall, 28 Vt 396.

The facts certified in the bill of exceptions (and they are fully sustained by the evidence in support of the petition) clearly make a case for a new trial under G. L. 2290. The right of a party to have his exceptions heard in this court is a substantial right the loss of which entitles him...