Opinion
Opinion filed October 18, 1932.
Pleading — Demurrer to Whole Complaint Where One Count Good — Specification Not Part of Complaint as Respects Demurrer — Waiver of Exceptions by Failure To Brief — Effect of Failure of Clerk To Assess Damages as Directed with Respect to Case Being in Supreme Court.
1. Where complaint contained good general count and two special counts, overruling of demurrer to whole complaint under which defendant argued insufficiency of special counts, held without error.
2. Specification filed under general count is not part of complaint, in respect to demurrer.
3. Exceptions not briefed are waived.
4. Where demurrer to complaint was overruled, defendant's motion to pass case to Supreme Court before judgment denied, and judgment entered for plaintiff, clerk of court to assess damages, held that, such damages not having been assessed, case was improperly in Supreme Court.
ACTION OF CONTRACT, complaint containing general counts and two special counts. Heard on demurrer to complaint, at the September Term, 1931, Washington County, Sturtevant, J., presiding. Demurrer overruled, and defendant's motion to pass case to Supreme Court before judgment denied, whereupon defendant failing to replead, judgment was entered for the plaintiff, clerk of court to assess damages, to all of which defendant excepted. The opinion states the case. Exceptions dismissed, and cause remanded.
H.J. Holden for the defendant.
Theriault Hunt for the plaintiff.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
The only exception briefed is to the overruling of the defendant's demurrer to the amended complaint, which is in the common counts with two special counts, each of the latter alleging an agreement between the defendant, the purchaser of certain mortgaged premises, and the mortgagor, that the former should assume and pay the mortgage indebtedness, and a promise by the defendant to the plaintiff, the mortgagor, to pay to her the amount due.
The defendant argues the insufficiency of the two special counts, but the demurrer is to the whole complaint, and since the general count states a good cause of action, and there is no misjoinder, no error appears in the ruling. McCarthy's Admr. v. Northfield, 87 Vt. 191, 192, 88 A. 734; Ingram's Admx. v. Rutland R.R. Co., 86 Vt. 550, 555, 86 A. 113; Mixer v. Herrick, 78 Vt. 349, 352, 62 A. 1019; Woodstock v. Town of Hancock, 62 Vt. 348, 352, 19 A. 991. The specification filed under the general count is not a part of the complaint in respect to the demurrer. New York Central R.R. Co. v. Clark, 92 Vt. 375, 377, 104 A. 343; Aseltine v. Perry, 75 Vt. 208, 210, 54 A. 190; Boville v. Dalton Paper Mills, 86 Vt. 305, 318, 85 A. 623; Alexander v. School Dist. No. 6, 62 Vt. 273, 276, 277, 19 A. 995; Lapham v. Briggs, 27 Vt. 26, 29.
The defendant moved to pass the case to this court before judgment but the motion was denied subject to his exception. He did not replead and judgment was entered for the plaintiff, the clerk of court to assess the damages, to which an exception was taken. Neither of these exceptions are briefed and they are, consequently, waived. Gray v. Brattleboro Trust Co., 97 Vt. 270, 274, 122 A. 670; Wood v. James, 93 Vt. 36, 43, 106 A. 566, and cases cited. On the record, no issue of fact has been joined and remains for disposition. Houghton, Admr. v. Tolham, 74 Vt. 467, 470, 52 A. 1032.
We have deemed it advisable to state our views upon the material points in issue, since both parties have argued the case. But there has been no assessment of the damages and therefore no full and perfect judgment has been rendered in the trial court upon which the plaintiff might have taken execution before the case could properly have come before this Court on exceptions. As the controversy has not been finished below, and no proper judgment there rendered, it is improperly here. Probate Court for District of Marlboro v. Chapin, 31 Vt. 373, 374, 377; Armstrong v. Moore, 95 Vt. 359, 361, 115 A. 295. This is not a case where the trial court in its discretion has passed exceptions to this Court before final judgment for hearing and determination, under G.L. 2262. See Hannah v. Hannah, 96 Vt. 469, 472, 120 A. 886. As we have seen, a motion to do this was denied. Therefore the entry must be, Exceptions dismissed, and cause remanded.