Yatter v. Miller
| Citation | 17 A. 850,61 Vt. 147 |
| Parties | JOSEPH YATTER v. OMER MILLER |
| Decision Date | 30 May 1889 |
| Court | United States State Supreme Court of Vermont |
GENERAL TERM, OCTOBER, 1888.
The judgment in other respects is affirmed.
Pitkin & Huse and Heath & Fay, for the defendant.
The admission of the evidence relating to the conduct of the defendant and the plaintiff's wife prior to July 26 and after August 10, the dates named in the declaration, was proper for the purpose for which it was received and considered by the referee. It enabled him to see the circumstances under which the acts were committed, and how far the plaintiff's heart was lacerated thereby. Did the defendant invade a household where loose morals prevailed where affection between husband and wife had ceased or never existed, where the husband offensively and indecently conducted with women other than his wife, where he suspected but was indifferent as to his wife's conduct with the defendant, or was the reverse of all this true? Was the criminal act the result of sudden temptation and impulse, or of design, deliberation, steady approaches? Although the authorities are not very specific as to the proper elements of consideration on the question of damages in cases of this kind, we think they fully cover in principle the ruling in this case.
The case of Shattuck v. Hammond, 46 Vt. 466 affords some analogy, where it was held in a like action that the defendant may show the plaintiff's criminal connection with other women at any time after his marriage and before trial, in mitigation of damages. The decisions are not in point but the general principles are elucidated in the able opinion of Wheeler, J., in State v. Bridgman, 49 Vt. 202; and of Colt, J., in Thayer v. Thayer, 101 Mass. 111.
The text in Green. on Evidence, Vol. 2, section 55, fully sustains the ruling in this case. See also the authorities there cited; and Vol. 1. ib. sec. 102, and cases cited in note 1.
At the March Term, 1887, judgment was rendered against the defendant on his failure to show cause for a continuance, and the case was ordered to be referred for the assessment of damages, but no referee was appointed, and the case was continued. At the September Term, 1887, the case was again continued but a referee was appointed, and the plaintiff moved for a certified execution, which was denied.
The defendant now claims that it is too late to move for a certified execution, and that it could be done only at the March Term, 1887, and this on the ground that the time of granting the certificate is, by the statute, to be at the time of the judgment, sec. 1502, R. L.
We think that the provision of the statute is to be construed in a case standing as this does, as referring to the time when the judgment is completed on the ascertainment of the damages. The judgment rendered at the March Term, 1887, only settled that the plaintiff was entitled to some damages. The defendant may still appear and contest the right of the plaintiff to a judgment for anything more than nominal damages. The case is analogous to those where judgment is rendered upon default or demurrer, in case of an open count, as in general assumpsit, where it is held that the action is still pending between the plaintiff and defendant until the measure of the plaintiff's right is ascertained, either by his own election to take judgment for nominal damages, or by a proper ascertainment under the statute, sec. 1178 R. L., and the final judgment is in fact...
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