Opinion
Opinion filed February 5, 1935.
Petition To Bring Case Forward on Docket, Strike off Old Order of Affirmance, and To Make New Order of Affirmance — Recognizance — P.L. 1492 — Jurisdiction of Supreme Court over Case Previously Affirmed, but Not Remanded to Another Court or Tribunal — When Such Jurisdiction Will Be Exercised — Laches — Right of Party To Assume That Officers of Court Will Do Duty as Prescribed by Court Rules — Sufficiency of Facts To Warrant Granting of Relief Requested by Bringing Case Forward on Docket, Striking Off Previous Order of Affirmance, and Making New Order of Affirmance.
1. Application to Supreme Court in form of petition with citation attached, for order that case previously decided be brought forward on docket, that order of affirmance be stricken off, and that new order therein be made affirming judgment, held not to require recognizance for costs under P.L. 1492, since application might as well have been made by written motion with notice of time when it would be called up for attention of Court, and is to be judged by its character rather than its form.
2. Such petition is essentially motion ancillary to, and in aid of, original suit, if granted being merged into and becoming part of that suit, and is not "writ of summons" within meaning of P.L. 1492.
3. Where affirmance in Supreme Court of judgment for plaintiffs, in county court action in which defendant's personal property had been attached, was duly certified by clerk of general term of Supreme Court to clerk of such court for county in which case originated, but no notice thereof was sent to plaintiffs' counsel until 19 days after rendition of final judgment, and such counsel, assuming that notice had been sent forthwith as required by Supreme Court rule 21, failed to have execution issued until after expiration of 30 days from final judgment, which fact was not discovered until plaintiffs were about to bring suit for conversion claimed by them to have taken place while case was in courts, whereupon plaintiffs petitioned Supreme Court to order case brought forward on its docket, to strike off order of affirmance, and to make new order therein, held that, case not having been remanded to another tribunal, but final action having been taken in Supreme Court, it retained jurisdiction over case, and could, in its discretion, even at subsequent term, bring case forward, strike off judgment and enter new one.
4. Only in extraordinary cases, and where applicant has not been guilty of laches, will Supreme Court exercise its jurisdiction to bring forward case previously decided therein and not remanded to another tribunal, strike off judgment, and enter new one.
5. Under circumstances of case, plaintiffs seeking to have case, previously decided by Supreme Court and not remanded to another tribunal, brought forward, judgment stricken off, and new one entered, held not guilty of laches, since they had right to assume officers of court would do and had done their duty as prescribed by rules of Court.
6. Where plaintiffs, on affirmance in Supreme Court of judgment in their favor in county court, were misled by failure of clerk of Court to notify plaintiffs' counsel forthwith of such affirmance as required by rules of Court, and thereby failed to secure issue of execution against property held by attachment until more than 30 days after rendition of final judgment had expired, held that they were entitled to relief requested in petition to Supreme Court to have case brought forward, order of affirmance stricken off, and new order of affirmance made.
ACTION OF CONTRACT. Plea, general issue. Trial by jury at the September Term, 1933, Windham County, Sherburne, J., presiding. Verdict and judgment for the plaintiffs. The defendant excepted. At the October Term, 1934, judgment of the county court was affirmed in the Supreme Court (See reported case, 106 Vt. 334, 174 A. 679). Plaintiffs now bring petition to the Supreme Court to have case brought forward on its docket, to strike off the order of affirmance, and to make a new order therein affirming judgment. The opinion states further facts in the case. Case brought forward on docket, previous order stricken off, and new entry of "Judgment Affirmed."
Lindley S. Squires for the plaintiffs.
Herbert G. Barber and Bert L. Stafford for the defendant.
Present: POWERS, C.J., SLACK, MOULTON, and THOMPSON, JJ.
These plaintiffs brought a suit in the county court of Windham County against the defendant, and therein attached his personal property. The suit resulted in a judgment for the plaintiffs, and the defendant brought the case to this Court on exceptions. At the October Term, 1934, the judgment of the county court was affirmed, 106 Vt. 334, 174 A. 679, which affirmance was duly certified by the clerk of the General Term to the clerk of the Supreme Court for Windham County, but no notice thereof was sent to the plaintiffs' counsel until October 30. Such counsel assumed that this notice had been given "forthwith," as required by Supreme Court rule 21, and that he had practically thirty days from the date of the notice within which to levy his execution upon the attached personal property, whereas, in fact, such notice had not been given him until 19 days after the final judgment was rendered. An execution was issued on November 20, and it was returned unsatisfied on the 22nd.
It is the claim of the plaintiffs that the property attached as aforesaid had been disposed of by the defendant while the case was in the courts, and that, when they were about to begin a suit for the conversion of it, they discovered that the attempted levy of their execution on it had not been made within 30 days from the date of the final judgment, as required by P.L. 2236. The plaintiffs now ask this Court to order the case brought forward on its docket, to strike off the order of affirmance, and to make a new order therein affirming the judgment.
Their application is in the form of a petition with a citation attached. The defendant moves to dismiss it because it contains no recognizance for costs, as required by P.L. 1492. Such a recognizance is not necessary. The application might as well have been made by a written motion with notice of the time when it would be called up for attention by the Court. It is to be judged by its character, rather than by its form. Newport v. Lindsay, 106 Vt. 201, 203, 170 A. 676. The petition is essentially a motion ancillary to, and in aid of, the original suit. If granted, it merges into and becomes a part of that suit. The citation is not a "writ of summons" within the meaning of the statute referred to. It approximates in character a citation attached to a petition for a new trial, which, as was held in Durkee v. Marshall, 14 Vt. 559, is not a "writ of summons," and did not require a recognizance, as the statute then stood, though it is otherwise now. Holden v. Campbell, 101 Vt. 474, 144 A. 455.
The defendant insists that we have no jurisdiction to grant the relief asked for. If this was a case which had been remanded to another court or tribunal, the defendant's claim would be well founded, and would be supported by Underhill v. Jericho, 66 Vt. 183, 28 A. 879; Monahan v. Monahan, 77 Vt. 155, 59 A. 176; Nicholas v. Estate of Nicholas, 80 Vt. 242, 67 A. 531; Peck's Admr. v. Peck's Admr., 91 Vt. 91, 99 A. 635; and Downer v. Battles, 103 Vt. 201, 152 A. 805. But we did not have occasion to remand this case or to remit it to any other tribunal. We gave it its final touch here, so we have not lost our jurisdiction over it. In such cases, though some expressions in Amazon Insurance Co. v. Partridge, 49 Vt. 121, and in Weeks v. Prescott, 54 Vt. 318, are to the contrary, it is the settled law of this State that we may, in our discretion, even at a subsequent term, bring the case forward, strike off the judgment, and enter a new one. Farmers' Mutual Fire Ins. Co. v. Reynolds, 52 Vt. 405, 407; Howard v. West Randolph, 82 Vt. 260, 262, 72 A. 1076; and Thompson v. Morrison, 84 Vt. 456, 458, 79 A. 1002, are full authority for this holding. See, also, Mutual Life Ins. Co. v. Foster, 88 Vt. 503, 505, 93 A. 258; and Greene v. Riley, 106 Vt. 319, 321, 172 A. 633.
All agree that it is only in extraordinary cases that this jurisdiction should be exercised, and that the party applying may be cut off by laches. Neither of these rules embarrass the plaintiffs. The case is extraordinary as very valuable rights are at stake, and may be lost through the default of an officer of the Court. And the plaintiffs cannot be charged with laches, since they had the right to assume that the officers of the Court would do, and had done, their duty, as prescribed by the rules of Court. Walsh v. Cole, 97 Vt. 459, 460, 123 A. 850, and cases referred to.
It is therefore ordered the case be brought forward on the docket of this Court, that thereupon the entry made at the October Term, 1934, be stricken off, and a new entry be made "Judgment Affirmed."