Saund v. Saund , 100 Vt. 176 ( 1927 )

This is a petition for divorce which was brought to the Washington county court and heard at the September Term, 1925. It was not disposed of during the session, and on the adjournment thereof was entered "with the court."

Thereafter, and during vacation, findings of fact were filed and at the same time a decretal order. The former was signed by all the judges and the latter by the presiding judge alone. By the terms of the decretal order the petitioner was granted a divorce for intolerable severity according to the facts found and on file in the case, and alimony was awarded.

The form and language of the decretal order clearly indicate that it was intended as an order of the court in which all the judges were to join. It was necessary as a matter of law that at least a majority of the judges should sign it in order to make it effective. The presiding judge, acting alone, could not do this, nor could he act for the other judges.

G.L. 1607 provides that the county courts may, in vacation after the adjournment of a stated term, enter judgment in a case fully heard during such term. This provision of the statute was enacted in 1898. Formerly when cases were entered "with the court" judgment could not be entered after the adjournment of the term except upon assent of the parties. Yattar v. Miller, 61 Vt. 147, 152, 17 A. 850. But since the passage of the act this entry is effective for the purpose of entering judgment in vacation, in cases where this may properly be done, without the consent of the parties. However, the authority and jurisdiction of the county court in vacation is now only what the statute gives it. Barnes v. Albert, 87 Vt. 251, 88 A. 815;Morgan v. Gould et al., 96 Vt. 275, 278, 119 A. 517.

It was held by this Court in Platt's Admr. v. Shields Conant,96 Vt. 257, 265, 119 A. 520, that G.L. 1607 contemplates action by a quorum of the county court, which means of course at least a quorum, and does not, standing alone, authorize a single judge to act. In that case there were facts that gave authority to the presiding judge to act without the concurrence of his associates. Here there are no such facts.

G.L. 3590, which authorizes decrees of alimony to the wife of the real and personal estate of her husband, provides that in case real estate is decreed she shall cause a copy of the decree to be recorded in the office of the clerk of the town in which such real estate is situated. The decretal order in the instant case was so drawn as to comply with the provisions of the statute in question, as well as embracing the further provision as to granting the divorce and the cause therefor. It is the custom for the presiding judge to announce in open court its decisions in divorce and other cases heard by the court when such cases have been decided during the session. When a judgment is rendered in such cases in vacation, on the other hand, proper procedure requires that there shall be a judgment or decretal order in writing, signed by the court, or a majority thereof, and filed with the clerk.

For reasons already appearing there was no judgment in the instant case. Therefore the exceptions are unauthorized and the case is not in this Court. It is one of those cases where the Court does not wait for the parties to make the claim that there is no case here, but acts on its on motion in dismissing the exceptions. Fitzgerald Merrill v. Fitzgerald et al., 95 Vt. 301,303, 115 A. 99; McArthur v. Blondin, 86 Vt. 62,83 A. 468; Abbott v. Sanders, 83 Vt. 165, 74 A. 1058.

Exceptions dismissed.