Sheeran v. Rockwood

• Decision Date: 30 September 1894
• Citation: 30 A. 689,67 Vt. 82
• Parties: SHEERAN v. ROCKWOOD.
• Court: Vermont Supreme Court

30 A. 689

67 Vt. 82

SHEERAN

v. ROCKWOOD.

Supreme Court of Vermont. Chittenden.

Sept. 30, 1894.

Exceptions from Chittenden county court; Taft, Judge.

Action by Eleanor Sheeran against Caleb M. Rockwoed, founded on the wrongful withholding by defendant of plaintiff's premises. There was a judgment for plaintiff, granting him a close-jail execution, and defendant excepts. Affirmed.

D. J. Foster, for plaintiff.

M. H. Alexander and A. V. Spaulding, for defendant.

START, J. The court below adjudged that the cause of action arose from the willful and malicious act and neglect of the defendant, and that he ought to be confined in close jail. The defendant insists that the action is founded on contract, and that the court had no authority to grant a close-jail execution. If the action is one in which a close-jail execution could be properly granted, and the evidence tended to show that the cause of action arose from the willful and malicious act or neglect of the defendant, the finding of the court below that the cause of action arose from the willful and malicious act and neglect of the defendant is conclusive. Melendy v. Spaulding, 54 Vt. 517; Robinson v. Wilson, 22 Vt. 35; Whiting v. Dow, 42 Vt. 262; Soule v. Austin, 35 Vt. 515. The evidence is not referred to, and the only question we have to determine is whether the cause of action is such that a close-jail execution could properly be granted. The action is founded on the wrongful withholding of the plaintiff's premises by the defendant, and is brought under R. L. § 1321. It is in the nature of an action of ejectment, and must be regarded as an action founded on tort Barnes v. Tenney, 52 Vt. 557. In actions founded on tort, the court, from a consideration of the facts, may adjudge that the cause of action arose from the willful and malicious act or neglect of the defendant, and that he ought to be confined in close jail. R. L. § 1502. The lease under which the defendant went into the possession of the premises terminated before February 7, 1893, by a breach of the conditions thereof by the defendant and he thereafter continued in possession without right. He thereafter wrongfully with held the possession of the premises from the plaintiff, and the court has, in effect, found that he willfully and maliciously withheld such possession. The defendant having willfully and maliciously withheld the possession of the premises from the plaintiff, she was under the necessity of bringing this action; and her cause of action arose from the...