Ricci v. Bove's Ex'rs

• Decision Date: 03 May 1955
• Docket Number: No. 1054,1054
• Citation: 118 Vt. 463,114 A.2d 648
• Court: Vermont Supreme Court
• Parties: Louis RICCI v. Perry E. BOVE'S EXECUTORS et al.

Page 648

114 A.2d 648

118 Vt. 463

Louis RICCI v. Perry E. BOVE'S EXECUTORS et al.

No. 1054.

Supreme Court of Vermont.

May 3, 1955.

Bloomer & Bloomer, Rutland, for plaintiff.

Hanford G. Davis, Brandon, Ryan, Smith & Carbine, Rutland, for defendant.

Before JEFFORDS, C. J., and CLEARY, ADAMS and CHASE, JJ., and HULBURD, Superior Court Judge.

JEFFORDS, Chief Justice.

This is an appeal from an order of the Probate Court for the District of Rutland allowing certain accounts of the executors of the estate of Perry E. Bove. The appeal was taken to the Rutland County Court. The cause was referred by that court to a commissioner for the purpose of taking evidence and reporting the facts to the court. Hearings were held and on March 18, 1954 the commissioner filed his report which consisted of facts as found by him. On that same day the commissioner filed correction to certain of his findings. On April 1 Louis Ricci, who had appealed from the order of the probate court, filed objections and exceptions to the findings as corrected. On July 16 the county court entered a judgment accepting and approving the reports of the commissioner. Exceptions to the judgment were allowed to all parties in interest. A bill of exceptions filed by Ricci was allowed on August 9, 1954.

In the bill of exceptions it is stated that 'Although the findings of fact were filed on, to wit, March 18, 1954, and appellant was awaiting, no hearing was had thereon or in connection therewith.' The appellant contends that he was entitled to a hearing on his objections and exceptions to the findings and cites Oakes v. Buckman, 87 Vt. 187, 88 A. 736, in support of his claim. In that case there was a reference to a referee. Exceptions were filed to his report and a motion was made to recommit the report for further findings. The record did not expressly show that these exceptions were disposed of or that the motion was passed upon by the lower court. Neither did the record show that they were not. Judgment was rendered against the excepting party. The following pertinent language appears in the opinion with cited cases here omitted: 'One of the errors assigned is the alleged failure of the county court to pass upon the exceptions and motion; others relate to the amount of the judgment. It is quite apparent that the exceptions to the report raised questions which the trial court was bound to consider, and dispose of according to law. The plaintiff in error could demand a decision of these questions as a matter of right. To render judgment on the report without passing upon these exceptions would be much like ignoring an issue joined on the record and rendering judgment, which is erroneous. It is also much like rendering a premature judgment, which is ground for reversal.'

Jenness v. Simpson, 84 Vt. 127, 78 A. 886, is cited in support of the last sentence in the above quotation. In that case the lower court entered judgment a day before the time expired in which the plaintiff had to file a remittitur so the judgment was entered prematurely. On page 133 of 84 Vt., on page 890 of 78 A. it is stated: 'Such a judgment is irregular, though not void, and will be reversed or set aside. * * * But the defendant has no exception to the judgment, so there is nothing, so far as that is concerned, upon which this court can act.'

In the Oakes case the judgment was affirmed by applying the rule of presumptions in favor of a judgment. On this point our Court says on page 189 of 87 Vt., on page 737 of 88 A.: 'But the record does not affirmatively show that these matters were not passed upon below; and, since the court could not properly render judgment until they were disposed of, it will here be presumed, in aid of the judgment, that it overruled the exceptions and denied the motion. This results from familiar rules. Upon a writ of error every presumption which is not positively inconsistent with the record is to be made in favor of the judgment.' It is apparent that these rules cannot here be applied in favor of the judgment as it affirmatively...