State v. Massey

• Decision Date: 13 April 1900
• Citation: 47 A. 834,72 Vt. 210
• Parties: STATE v. MASSEY et al.
• Court: Vermont Supreme Court

47 A. 834

72 Vt. 210

STATE

v. MASSEY et al.

Supreme Court of Vermont. Caledonia.

April 13, 1900.

Appeal in chancery, Caledonia county; Thompson, Chancellor:

Bill of complaint brought by the state of Vermont against Ernest Massey and others. The defendants B. G. Howe and the First National Bank of St Johnsbury alone filed answers, and therein incorporated their demurrers. The cause was heard on said demurrers, which were overruled, and the bill held sufficient. The demurrants thereupon moved to have the benefit of their demurrers reserved to them till final hearing, and to have their answer brought forward for hearing. This motion was denied, and it was considered and adjudged that as to them the bill be taken as confessed. It was further adjudged and decreed that the common nuisance set forth in the complaint had been kept and maintained as therein alleged, and that each and all of said defendants, and each of their servants, lessees, tenants, and assigns, be perpetually enjoined from keeping and maintaining such nuisance, and from suffering it to be maintained. It was further decreed that the answering defendants pay costs of suit, except the cost of service of process on the defaulted defendants. The defendants Howe and said bank appealed. Reversed as to them.

The bill of complaint was filed May 24, 1899, and charged that certain rooms in the St. Johnsbury House, so called, were kept and maintained as a liquor nuisance by its occupants, the defendants Ernest Massey and Henry Massey; that the defendant B. G. Howe was the owner of said house, and that the said bank had an interest therein as mortgagee. A conviction at law of the de fendant Ernest Massey before the bringing of the bill was alleged. Tbe bill contained no allegation of knowledge on the part of the answering defendants. It prayed for the injunction granted by the chancellor.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, and WATSON, JJ.

Henry C. Ide and Harry Blodgett, for appellants.

B. G. Howe and First National Bank of St Johnsbury. Leighton P. Slack, State's Atty., and Alexander Dunnett, for the State.

TYLER, J. 1. The decision of one question in this case, which has been discussed at considerable length by counsel for the defendants, must depend upon the practice that should prevail under rules 15 and 17 in chancery. Rule 15 reads: "Instead of filing a formal plea or demurrer, the defendant may insist in his answer on any special matter that goes to the merits of the bill, and have the same benefit thereof as if he had pleaded the same or demurred to the bill." Availing themselves of this rule, the defendants Howe and the First National Bank filed their answer, and incorporated therein a demurrer. The legal effect of the demurrer was the admission of the truth of all the well-pleaded facts set forth in the information. The demurrer, in the usual form, denied that the complainant had made such a case as entitled it to the discovery or relief sought, demanded the judgment of the court whether the defendants should be compelled to make any further answer, and insisted upon this special defense in accordance with said rule 15. The information was taken as confessed as to the defendants Massey, they not appearing, but as to the defendants Howe and the First National Bank the case was heard upon their demurrer; and, after consideration of the arguments of the respective counsel, the chancellor adjudged that the demurrer be overruled, and that the information was sufficient. Upon the rendering of this decision the defendants Howe and the First National Bank moved to have the benefit of their demurrer reserved to them till final hearing, and to have their answer brought forward for hearing, which motion was denied, the information was taken as confessed, and it was adjudged "that such common nuisance had been kept and maintained as alleged in said information, and it is considered and decreed that each and all of said defendants, and their and each of their servants, agents, lessees, tenants, and assigns, be, and they and each of them are, perpetually enjoined from keeping and maintaining such nuisance, and from suffering it to be maintained in said building and land described in said bill of complaint." The defendants elected to stand upon their demurrer, "insisted upon this special defense," and brought the case to a hearing upon the issue thus made, whether, admitting all the allegations in the information, the orator was entitled to an injunction.

The situation Was not a novel one under our present rules of practice in chancery. The defendants had acted in accordance with what this court said in Town of Westminster v. Willard, 65 Vt. 266, 26 Atl. 952—that under the former practice, when the demurrer was contained in the answer, it was not brought on until the whole case was heard on the merits, but that under the new practice the demurrer must be brought on before the case is heard on the merits, otherwise it is Waived. The demurrants in this case evidently acted in pursuance of the later practice. In the case above cited, the court, after referring to the former pactice that, when a demurrer to the whole bill was overruled, the defendant was ordered to answer, and the court might, and often did, reserve the right to raise the same question at the hearing, said, quoting in substance the seventeenth rule in chancery: "But under the new rules in chancery, when a demurrer is overruled the bill should regularly be taken as confessed, and the matter thereof be proceeded with and decreed accordingly, if it can be done without an answer, and is proper to be decreed; but, if a discovery is required to enable the complainant to obtain a proper decree, the defendant will be ordered to answer as far as necessary for that purpose." It cannot be claimed, and is not insisted upon in the briefs, that a discovery was required to enable the complainant to obtain a proper decree. The demurrer was to the whole information and to the sufficiency of its allegations. The demurrants were not without rules for their guidance when the demurrer was overruled. The court further said in Town of Westminster v. Willard: "There are several ways open to the defendant when his demurrer is overruled. He may let the bill be taken as confessed under the rule, and take the case up on demurrer; or he may ask leave to withdraw his demurrer, or to waive it, and to go to trial on the merits; or he may ask to have the benefit of the demurrer reserved to him till the hearing. If it is reserved, the better practice would be, of course, to make a special order to that effect, and not to leave the matter to implication." The demurrants did not ask leave to withdraw their demurrer, nor to waive it, and go to trial upon the merits (which request is usually granted); but they did request to have their demurrer brought forward for (hearing, and that the benefit thereof might be reserved until the hearing. Whether or not such benefit should be reserved rests entirely in the discretion of the chancellor, as is indicated in the words "if it is reserved," in the paragraph last quoted. The defendants, in the first instance, staked their case upon their demurrer, and have been sustained, and the allegations in the information adjudged insufficient; and yet they insist here that, as a matter of right, they should have been allowed a trial upon the merits,—that they should have been permitted both to admit the facts alleged and to traverse them. It rested entirely within the discretion of the chancellor to decide whether the defendants should have the benefit both of an admission and a denial of the facts alleged before passing the ease to this court, and we think that this discretion was wisely exercised, especially in view of the fact that it is the practice in this court, upon sustaining the decree of the court below overruling a demurrer, to remand the case with leave to the demurrant to answer over. It was said in Stewart v. Flint, 57 Vt. 216, that when a demurrer is overruled it is discretionary with the court to remand the case for trial or for final decree; but it will not remand for final decree without exceptional circumstances. If the chancellor who made this decree had been sitting as presiding judge in the county court, and exceptions had been taken and filed in a cause, he might, in his discretion, under V. S. § 1629, have passed the cause to this court, before final judgment, for hearing and determination on the exceptions. This statute is often availed of, as the profession is aware, to have questions of law determined before subjecting the parties to the expense of a trial in the county court. As this bill was brought to enforce a new statute, which required a construction by this court, the chancellor may well have considered it advisable and in the exercise of a wise discretionary power to send the case here for hearing and determination upon the questions of law...