Spaulding v. Wooworth , 42 Vt. 570 ( 1870 )

The opinion of the court was delivered by

Barrett, J.

This case was appealed by the defendant from a justice’s court to the county court. In the justice’s court the plaintiff made a motion for a close jail certificate. Pending that motion, and without its being decided, the appeal was applied for, and granted. The defendant failing to enter the appeal, the plaintiff carried the case to the county court by a complaint for affirmance, pursuant to section 31, chapter 30 of the General Statutes, and the judgment was affirmed. In the county court the plaintiff renewed the motion for a close jail certificate. The defendant appeared and resisted said motion. Evidence was introduced to sustain said motion, and the same was granted, and a close jail execution was awarded. To this the defendant excepted, and upon this exception the case is now before this court.

The court are of opinion that, as this mode of proceeding, in case of the failure of the appellant to enter his appeal in the county court, is specifically provided by that section of the statute, the county court have no vocation or authority in case of a proceeding on complaint for affirmance, beyond what is specifically conferred by that provision; and that, in terms, is that the county court “ shall affirm such judgment, adding to the damages interest at the rate of twelve per cent,” etc. As the justice rendered no judgment upon that motion for a close jail execution, of course there was no judgment in that respect that could be the subject of affirmance. The authority of the court being exhausted when the judgment rendered by the justice was affirmed, the proceeding upon the motion was without authority, and therefore awarding-such execution was erroneous. Individually, I should have no difficulty in holding that the provisions of that section of the statute do not operate to preclude the county court, in such case, from entertaining and deciding such motion, as was done in this case. The only provision authorizing the awarding of such an execution, in an action founded on tort, is in section 23 of chapter 121 of the General Statutes. The judgment awarding such an execution is no part of the principal judgment in the cause. It is independent of, and collateral to, the principal judgment. It is only required that it shall have been “ adjudged by the court, at the time of rendering such (principal) judgment that the cause of action arose from the wilful and malicious act, etc., and the court, from a consideration of the facts, shall consider,” etc. It is not quite plain to me why the court, at the time of rendering a judgment of affirmance, may not, as consistently with the terms of the statute, adjudge that the cause of action arose from the wilful and malicious act of the defendant, as in case of' rendering a judgment upon a verdict. It is agreed that in case a defendant is defaulted, it would be proper for the county court to entertain such a motion, and hear evidence to sustain it; and yet section 43, chapter 30, providing for rendering a judgment upon a default in the county court, gives no wider scope for entertaining and acting on such a motion than said section 31, that provides for the affirmance of a judgment on complaint of the appellee. Indeed, it seems to me that section 31 was intended only to provide a mode by which an appellee would be able to get a judgment .in the county court, where he had obtained one before a justice which the other party had appealed from aud neglected to prosecute his appeal, and was not intended to exclude from the court the exercise of functions incidental and collateral to the principal judgment, obviously contemplated by other and independent provisions of the statute. Without further development of my views, I merely add that I think the provisions of the statutes would be as strictly observed, and the reasons of them better served, by affirming the judgment in this case, instead of reversing it.

But the judgment of the county court granting a close jail execution is reversed.