Saund v. Saund
| Decision Date | 05 October 1927 |
| Citation | 138 A. 867 |
| Parties | SAUND v. SAUND. |
| Court | Vermont Supreme Court |
Exceptions from Washington County Court; Frank D. Thompson, Judge.
On rehearing. Former opinion reversed and exceptions sustained.
For former opinion, see 100 Vt. 176, 136 A. 22.
Argued before WATSON, C. J., and POWERS, SLACK, FISH, and MOULTON, JJ.
Theriault & Hunt, of Montpelier, for petitionee.
T. Tracy Lawson, of Barre, for petitioner.
When this case was here before (100 Vt. 176, 136 A. 22), the exceptions were dismissed. The case is a petition for divorce, brought to the Washington county court and therein fully heard during the September term thereof, 1925, but no decree was rendered before the final adjournment of the term. At the time of such adjournment the case was entered "with court." Thereafter, on March 6, 1926, within the following vacation, findings of fact were filed and at the same time a decretal order. The former was signed by all the judges, but the latter was signed by the presiding judge alone. By the terms of the decretal order the petitioner was granted a divorce on the ground of intolerable severity, and was awarded alimony. It was held by this court to have been necessary as a matter of law that at least a majority of the judges should sign it in order to make it effective; that the presiding judge, acting alone, could not give force to the decree, nor could he act for the other judges. Consequently there was no judgment in the case. It was further there held that when a judgment is rendered in such a case in vacation, proper procedure requires that a judgment or decretal order in writing, signed by the court or a majority thereof, be filed with the clerk.
That decision of this court was handed down January 5, 1927. The stated September term, 1926, of said county court was then in session, but was finally adjourned on January 19, 1927. Within the vacation following that adjournment and before the convening of the next stated March term of said court, two stated terms of said court otherwise constituted having intervened, and without any other or further hearing than that had at the September term, 1925, the findings of fact and decretal order, filed March 6, 1926, were ordered stricken off, and new findings of fact and new decretal order, granting a divorce and awarding alimony, were made and filed by the presiding judge and the assistant judges who constituted said court at its September term, 1925, and before whom this case was then heard. The petitionee excepted to the findings of fact and to the decretal order so filed, for that the judges who made the same did not constitute said Washington county court and were then without jurisdiction of said cause, and to said decretal order because based wholly on the findings referred to and without further hearing in the case.
The primary question now before us is whether the judges of the term during which the case was heard had power in vacation to make a valid decree after the intervening of two stated terms of county court following the adjournment of the September term, 1925. This depends upon the meaning of G. L. 1607, the provisions of which read:
"The county court may, in vacation after the adjournment of a stated term, enter judgment in a cause fully heard during such term, and may, on reasonable notice to the attorneys for all parties of record, hear and render judgment in a cause standing on a report, on an agreed statement of facts or on a demurrer; and said court may, in like manner, hear and render judgment in any cause wherein a trial by jury is not a matter of right or is waived."
The manifest purpose of enacting the law of this section was to enlarge the powers of the county court in vacation so as to enable it (Class 1) to enter judgment after the final adjournment of a stated term, in cases fully heard during such term and at its final adjournment entered "with court" or "with the court"; and (Class 2) to hear and render judgment in causes so entered at final adjournment, falling within the subsequent provisions of the section. As in effect was declared in this case when here before, prior to that enactment the validity of a judgment entered in vacation in cases of "Class 1," rested in the assent of the parties (Yatter v. Miller, 61 Vt. 147, 17 A. 850), and the present powers of that court or of a judge thereof in vacation, as to entering judgments and as to matters upon which they are based, are only such as the statute confers (Barnes v. Albert, 87 Vt. 251, 88 A. 815; Morgan v. Gould, 96 Vt. 275, 119 A. 517). But the statute conferring such powers does not abridge the previous common-law powers of the judges at chambers, which powers were considered and recognized as firmly established in Thorworth v. Blanchard, 87 Vt. 38, 87 A. 52, Ann. Cas. 1916A, 1226. However, chamber business at common law need not be further noticed, for no claim is made, nor could there well be, that it includes such as, in the present case, was attempted by the judges in vacation and now here in question.
Nor need G. L. 1610, conferring certain powers upon "any superior judge" in vacation, be particularly noticed; for its provisions do not in any manner relate to causes fully heard during a stated term of the county court, but judgment not rendered therein before final adjournment of the term, as in the instant case. In these circumstances judgment can be entered after such adjournment only by all or a majority of the judges who heard the case in county court, except one judge may act alone when the other two are disqualified. G. L. 1603; Platt v. Shields et al., 96 Vt. 257, 119 A. 920.
Were the judges acting within the powers given by the statute (G. L. 1607) when they filed the findings and decretal order brought here for review? In volume 3, Bouv. Law Dict., at page 3385, "vacation" is defined as "that period of time between the end of one term and the beginning of another." And that appears to have been the understanding of this court when considering and deciding the case In re Murphy, 73 Vt. 115, 50 A. 817. This is the technical common-law definition. 15 C. J. 899; Conkling v. Ridgely & Co., 112 Ill. 36, 1 N. E. 261, 54 Am. Rep. 204.
In Brayman v. Whitcomb, 134 Mass. 525, the highest court of Massachusetts, adopting the above definition, said:
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