Town of Underhill v. Town of Jericho

• Court: Vermont Supreme Court
• Writing for the Court: ROSS
• Citation: Town of Underhill v. Town of Jericho, 66 Vt. 183, 28 A. 879 (Vt. 1894)
• Decision Date: 05 March 1894
• Parties: TOWN OF UNDERHILL v. TOWN OF JERICHO

28 A. 879

66 Vt. 183

TOWN OF UNDERHILL v. TOWN OF JERICHO

Supreme Court of Vermont

March 5, 1894

GENERAL TERM, 1893

Petition dismissed with costs.

S C. Shurtleff for the petitioner.

M H. Alexander and Seneca Haselton for the defendant.

Taft J., did not sit. Start, J., doubting.

OPINION

ROSS

This is a petition preferred to the supreme court for the county of Chittenden at its January term, 1893 setting forth that the town of Jericho had a cause pending against the petitioner in the supreme court of that county at its January term, 1892, which was heard; that the cause had not been heard upon its merits in the county court; that the supreme court reversed the judgment of the county court and rendered judgment in chief against the petitioner, thereby depriving the petitioner of the right to a trial upon the merits of the cause; that the judgment so rendered was an error, or oversight, and upon proper hearing the court would allow the petitioner to plead over and try the cause upon its merits, inasmuch as the plea it had entered, and on which the court had passed, was a plea to the jurisdiction, and not a plea in abatement. The petitioner prays that the cause may be brought forward upon the docket and the mandate corrected, or changed, so as to give the petitioner the right to try the case in the county court upon its merits. The mandate, or judgment order, remitted the cause to the county court for the assessment of damages. 64 Vt. 362, 366. The argument of the counsel of the petitioner has been directed mostly to endeavoring to show that this court erroneously gave judgment in chief in favor of Jericho, on its plea. But before this court can reach that question it must determine whether it is or, on this proceeding, can be brought before it for determination. The cause came to this court on exceptions, which are legally equivalent to a writ of error. It was fully and regularly heard. The court then took a recess, and on reconvening the opinion of the court was read and the judge having the case inquired of the counsel what they claimed the judgment should be, whether in chief, as was rendered, or reversing and remanding the cause for the petitioner to plead to it on its merits. The counsel for the town of Jericho claimed that it was entitled to a judgment in chief. The court held the case to consider the point raised. Neither the counsel for the petitioner nor for Jericho furnished the court with any authorities upon the point inquired about. After examination and consideration the judgment ordered was entered and the cause remitted to the county court, where the case is now pending. Hence this court has not the case within its control to bring forward upon its docket. The true cause was regularly before this court at the January term, 1892. It was duly heard and considered. The judgment order was not procured by any concealment, misrepresentation or misinformation. It was, in no sense, an inadvertence. It was regularly entered, and the cause regularly remanded to the county court. The petition, in legal effect, is a motion to have the cause brought forward and reheard, and reaches only what rests in the records of this court. The state has no statute...