Thorwarth v. Blanchard

• Decision Date: 14 June 1913
• Parties: THORWARTH v. BLANCHARD.
• Court: Vermont Supreme Court

87 A. 52

87 Vt. 38

THORWARTH

v. BLANCHARD.

Supreme Court of Vermont. Washington.

June 14, 1913.

Exceptions from Washington County Court.

Action by Marion B. Thorwarth against A. N. Blanchard. Judgment sustaining a demurrer to the declaration, and plaintiff brings exceptions. Affirmed and remanded.

See, also, 85 Atl. 6.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

H. C. Shurtleff, of Montpelier, for plaintiff.

Erwin M. Harvey, of Montpelier, for defendant.

WATSON, J. On application of the plaintiff this case was heard and determined on demurrer to the amended declaration by a superior judge at chambers, in vacation. The record states that: "To expedite matters and prevent delay the undersigned superior judge, at the request of the plaintiff's counsel, but against the objection and protest of defendant's counsel, sustained the demurrer pro forma and adjudged the declaration insufficient." To this ruling the plaintiff excepted. Thereon the case was passed to this court, under the statute, before final judgment.

The defendant moves that the exceptions be dismissed and the cause remanded to the county court on the ground, in brief, that a superior judge had no authority to hear and determine the case on demurrer out of court in vacation, and also for that the judgment below, if valid, was rendered at the special instance and request of the plaintiff, against the objection of the defendant, and the plaintiff cannot now claim or be heard to say that the ruling was error.

Nothing is more firmly established at common law than the practice of doing much of the business of courts of general jurisdiction at judges' chambers both in term time and in vacation. In the much-considered case of Rex v. Wilkes, 4 Burr. 2527, the information, charging a misdemeanor, was, on summons to show cause, amended the day before the trial by Lord Mansfield at chambers after hearing both sides and without the consent of the respondent This was objected to on writ of error as a ground for a new trial. It was held that the amendment was properly made at chambers; Lord Mansfield saying a great deal that may be done in court is done by judges at chambers in term time, and in vacation a great deal more is done by them at chambers because it can be done nowhere else. Mr. Justice Yates said this practice seems to have been exercised time out of mind, and the business of the court could not be done without it; that it is greatly for the benefit of the subject and tends to the advancement and expedition of justice. Mr. Justice Aston said this had always been the practice, the custom of the court, and therefore the law of the land. Later a pamphlet was issued by one Almon, containing libelous passages upon Lord Mansfield for making the aforementioned amendment out of court; and, application being made to the Court of King's Bench by the Attorney General for an attachment against Almon, a rule was made for the latter to show cause why a writ of attachment should not issue against him for contempt Arguments being had on this rule for and against the granting of the attachment, an opinion was written by Lord Justice Wilmot, though it was not delivered in court, since the prosecution was dropped in consequence, it was supposed, of the resignation of the Attorney General. The opinion, however, was thought to contain so much legal knowledge on an important subject as to be worthy of preservation, and it is published in Wilmot's Notes, p. 243. Therein the Lord Justice said: "A doubt has been rather hinted at than made as to the legality of orders made by judges at their houses or chambers. * * * When the practice first began I cannot find out * * * But, whenever it began, it stands upon too firm a basis to be now shaken; constant immemorial usage sanctified and recognized by the courts of Westminster Hall, and in many instances by the Legislature; and it is now become as much a part of the law of the land as any other course of practice which custom has introduced and established; but though difficult to find out when it was introduced, yet it is very easy to see why it was introduced, for the ease and convenience of the suitors of the court. * * * And still it is the business of the court which is done at chambers; that is, it is business which must be done in court, if it could not be done at chambers. * * * And there is nothing in the Constitution of the court which forbids the business being done by one judge, for one judge, sitting in court, has the authority of the whole court, and a libel upon him would be a libel upon the court in the strictest sense of the word." In speaking of the capacity or character of the judge making an order at chambers, the Lord Justice further said: "He is still opening and exercising the jurisdiction of the court, and is doing the business which must otherwise be done in court, exactly in the same manner as we do it at the side bar; and surely a libel upon the judges for what they do at the side bar, within a few rods of the court, would be as much an object of attachment as for anything done in court. Custom legitimates the practice at chambers, as much as at the side bar; and custom may qualify and modify the acts they do in both places."

In discussing this practice, Mr. Tidd says: "In vacation, when the court is not sitting, some things are allowed to be done by a judge at chambers which in term time must be moved in court, as to enter up judgment on a warrant of attorney, above one and under ten years old, or to refer it to the master, or prothonotary, to compute principal and interest on bills of exchange, or promissory notes," etc. Tidd's Pr. 511.

In 1830 the jurisdiction exercisable in chambers was by act of Parliament made definite as follows: "To transact such business at chambers or elsewhere depending in any...