Turner v. Bragg
| Decision Date | 07 October 1947 |
| Parties | DAISY TURNER, ADMX., v. ALVA M. BRAGG ET AL |
| Court | Vermont Supreme Court |
May Term, 1947.
Parties.
1. When a suit is brought by an executor of an estate and such person is described in the writ as administrator, it is proper to allow the writ to be amended to show the true fact.
2. When a trespass suit is brought by an executor before decree of distribution and is pending at the time of such decree, it is proper to allow an amendment whereby the distributees are added as parties plaintiff, and a reasonable time will be allowed for such amendment.
3. A former judgment is an absolute bar to a subsequent action only where the parties, the subject matter and the cause of action are identical or substantially so.
4. Grounds for reversal first advanced in the Supreme Court and not made known on trial will ordinarily not be considered.
5. The rule that when a defendant has filed a dilatory plea instead of answering to the merits and has had the plea decided against him the plaintiff is entitled to judgment in chief is not applicable to a plea of res judicata, as such plea is not a dilatory plea but a plea in bar.
ACTION OF TRESPASS. Hearing by court, Windham County Court September Term, 1946, Blackmer, J., presiding. Both parties excepted and cause passed to the Supreme Court before final judgment.
No error having been made to appear, the exceptions of both parties are overruled and the cause is remanded.
Herbert S. Avery (of the Massachusetts Bar) for the plaintiff.
George L. Daley and Barber & Barber for the defendants.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.
This is an action of trespass brought by writ dated May 21, 1941. A hearing was had on September 25, 1946, on a plea of res adjudicata filed by the defendants. The grounds for the plea were that the parties, causes of action and subject matter in this case are the same as in a chancery case which was finally determined in favor of the defendants as reported in 113 Vt. 393, 35A.2d 356.
During the hearing the defendants stated to the court that although this action was brought by Daisy Turner, administratrix of the estate of Alexander Turner, she was in fact the executrix of that estate. The plaintiff then moved to amend by "changing the plaintiff from Daisy Turner administratrix, to that of Daisy Turner, executrix". The plaintiff then notified the court that the estate had been settled and final distribution made. The defendants thereupon moved to dismiss the action on the grounds that the plaintiff had no authority to bring or maintain the action as administratrix because she never had that title, or, as executrix because she had no further interest in the estate.
The plaintiff then moved to add certain heirs as parties plaintiff to which the defendants objected on the grounds that the original plaintiff was non-existent; that, at the time of the request to amend from the title of administratrix to that of executrix, Daisy Turner had ceased to be executrix of the estate and had no further interest therein as such, the estate having been settled and final distribution made, and that the court could not now permit the heirs to come in with, or in place of, a non-existent plaintiff.
The various motions to amend made by the plaintiff were granted. The defendants' motion to dismiss was denied and their plea of res adjudicata was overruled and the defendants were allowed an exception in each instance. The cause was passed to this Court under the provisions of P. L. § 2072.
That the plaintiff was the duly appointed, qualified, and acting representative of the estate of Alexander Turner when this action was commenced was found by inference by the court and this finding is not questioned by the defendants. This being so, no change in parties was made by the amendment first above referred to but only a different description of the original party plaintiff in respect to her representative title. The court was authorized by P. L. § § 1578 and 1579 to allow the amendment. See also Towne v. Rizzico, 113 Vt. 205, 211, 32A.2d 129; Davis v. Cent. Vt. Ry. Co., 95 Vt. 180, 185, 113 A. 539; Lewis et al v. Locke, 41 Vt. 11, 14; Rowan v. Lee, 26 Ky. 97, 3 J.J. Marsh. 97.
P. L. § 1581 is authority for the amendment permitting the joining of the heirs as parties plaintiff unless the provisions are shown not to here apply. The defendants in their objections to this amendment do not question that if the plaintiff had described herself as executrix she would have been the proper person to commence this action. They based their objections, and we will assume at the request of the court, nothing to the contrary appearing in the record, on the grounds above stated.
By P. L. § 2858 it is provided, as far as here material, that when an executor or administrator is appointed and assumes the trust an action for damage to lands shall not be maintained by an heir or devisee until there is a decree of the probate court assigning such lands to such heir or devisee. Assuming that the plaintiff in her representative capacity was the proper person to commence this action, and also assuming that after the decree assigning the lands in question the heirs were necessary parties to the action, a reasonable time should have been allowed the heirs after the decree to move to become parties to the action.
The defendants apparently contend that the moment the decree assigning the lands in question became effective the right of the representative of the estate to maintain the action ceased and, as a consequence, the action had abated for lack of a party plaintiff before the motion to add the heirs, as parties plaintiff, was made. However, it would be unreasonable to conclude that the Legislature intended by P. L. 2858 to have an action abate against heirs who had been diligent in protecting their interest in pending litigation.
No claim was made here or below that an unreasonable time had elapsed between the decree and the motion to add the heirs as parties plaintiff. Nor was any question made in the brief of the defendants that the heirs be substituted for, instead of joining with, the representative of the estate as parties plaintiff.
No error has been made to appear in the granting of the above motions of the plaintiff to amend or in the denial of the defendants' motion to dismiss.
The declaration alleged trespasses on three different parcels of land. The plaintiffs moved to amend so that only trespass on the so called Wheelock parcel is alleged. This motion was granted with exceptions to the defendants which not being briefed are waived.
A former judgment is an absolute bar to a subsequent action only where the parties, the subject matter and the causes of action are identical, or substantially so. Fletcher v. Perry, 104 Vt. 229, 231, 158 A 679. The defendants in their brief refer to many statements in the transcript, the pleadings, and requests for findings, etc., in the chancery case above referred to, which, they state, show that the plaintiff intended that the Wheelock property and threatened trespasses upon it should be in the case. Some of these references bear out the defendants' claim while others do not. But in any event, it is apparent that the chancery case as finally tried and decided on appeal in this Court decided nothing with reference to the Wheelock property. This is shown by the following statement in the opinion in that case appearing in 113 Vt. at page 398, 35 A.2d...
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