Opinion
Opinion filed October 4, 1938.
1. P.L. 1431, Effect of Failure to File Bill of Exceptions with Judge in Municipal Court Action — 2. Supreme Court Rule 10, Effect of Failure to State Grounds of Motion for Remand for Correction of Docket Entries.
1. Supreme Court was without jurisdiction to review action of contract brought in municipal court, where neither record nor bill of exceptions showed that such bill had ever been filed with judge of municipal court, though bill bore endorsement indicating it was filed with county clerk, since requirement of P.L. 1431, that bill of exceptions in such action should be filed with judge of municipal court within thirty days of rendition of judgment, is mandatory and compliance therewith is vital to jurisdiction of Supreme Court.
2. Where Supreme Court was without jurisdiction of case brought up from municipal court because there was no showing that bill of exceptions was duly filed with municipal court judge, and excepting party moved that cause be remanded or final disposition stayed for correction or amendment of docket entries, but did not indicate in motion facts which he proposed to show by such correction or amendment nor how such facts, if shown, would affect jurisdiction, motion was overruled as not stating grounds on which it was predicated as required by Supreme Court rule 10.
ACTION OF CONTRACT. Plea in set-off, to which the plaintiff pleaded the general issue. Trial by jury in Rutland municipal court, Christopher A. Webber, Municipal Judge, presiding. Verdict and judgment for the defendant. The plaintiff attempted to bring the cause to Supreme Court on exceptions. Prior to argument the defendant moved to dismiss on the ground that the Supreme Court was without jurisdiction of the cause. Thereafter, the plaintiff filed a motion to remand or stay final disposition of the cause. The opinion states the case. Motion to remand overruled. Motion to dismiss granted. Action dismissed.
Stanley L. Burns for the plaintiff.
Asa S. Bloomer for the defendant.
Present: MOULTON, SHERBURNE, BUTTLES and STURTEVANT, JJ., and JEFFORDS, Supr. J.
This is an action of contract attempted to be brought to this court by the plaintiff on exceptions from Rutland municipal court. Prior to argument in this court the defendant moved to dismiss the case for lack of jurisdiction.
The bill of exceptions before us bears an endorsement indicating that it was filed in the Rutland county clerk's office on March 4, 1938, and there is no indication in the record or on the bill of exceptions that it was filed elsewhere at any time. The plaintiff in argument did not contend that it was ever filed elsewhere than in the Rutland county clerk's office. Under the provisions of section 1431 of the Public Laws the bill of exceptions should have been filed with the judge of the Rutland municipal court within the time required which was within thirty days from the rendition of final judgment. See Jones v. Metcalf, 95 Vt. 67, 112 A. 831. This requirement is mandatory and compliance therewith was vital to the transference of jurisdiction to this court. This case is controlled by Village of St. Johnsbury v. Dolgin, 102 Vt. 424, 148 A. 879. The requirement not having been complied with, we are without jurisdiction.
Since adjournment of court the plaintiff has filed in this court a motion to remand the case to the Rutland municipal court "for the purpose of correcting and/or amending the docket entries in said Rutland municipal court to show the facts," or, in the alternative, "to stay final disposition of said cause until said docket entries are corrected and/or amended and certified to the Supreme Court."
With respect to this motion it is sufficient to say that the grounds on which it is predicated are not stated as required by Supreme Court rule 10. We are not informed as to what the alleged facts are which the plaintiff proposes to show by correction or amendment of the docket entries of the court below, nor as to how those facts, assuming that they could be shown in the manner proposed, might affect the conclusion that this Court does not have jurisdiction of the case.
Plaintiff's motion to remand is overruled. Defendant's motion to dismiss is granted. Action dismissed.