Church v. French , 54 Vt. 420 ( 1882 )

The opinion of the court was delivered by

Royce, Ch. J.

This was a petition brought under sec. 1428, Revised Laws, setting forth that the petitioner was deprived of an appeal by accident or mistake, and praying that the judgment rendered against him by the justice of the peace may be reversed and set aside ; and that he may be allowed to enter his appeal in the County Court. The petitioner was summoned as the trustee of the principal defendant in the justice suit; and the judgment that he claimed the right to appeal from was rendered against him as such trustee. The claim that was litigated in determining the question of the liability of the trustee, in connection with the specification filed by him, would have entitled the plaintiff or defendant in that suit to an appeal if the same matters had been litigated in the principal suit; and the only question is whether a trustee has the same right to an appeal that the parties have.

The act of 1842 gives to any person, adjudged trustee in a suit brought before a justice, the right to appeal from the judgment under the same regulations as are prescribed by. law in ordinary cases of appeal; and that act has not been essentially changed or modified.

Previous to the passage of that act, it had been held that a trustee was not entitled to an appeal; and the act of 1842 was passed to secure that right.

In Hutchinson v. Bigelow Allis & Tr., 28 Vt. 504, and in Van Buskirk v. Martin and Tr., 28 Vt. 726, it is said that where the trustee is adjudged liable the statute gives him the right to appeal.

The right that is secured to the trustee by the act and the above decision is not an unlimited one; but is conditional upon his bringing himself within the regulations prescribed by law in ordinary cases of appeal. What those regulations are has been so frequently and recently indicated in decisions of this court that there can be no necessity for their repetition. There can be no doubt but what the intention of the Legislature was to place trustees upon perfect equality with the principal parties in the matter of giving an appeal from the judgment rendered.

The judgment against the trustee is conclusive, and if suit had been brought against him directly by the principal defendant, upon the facts found, he would have had an undoubted right to appeal from a judgment rendered against him.

We see no reason why, when he is compelled to litigate the same matters as trustee, he should not have the same right. And a proper construction of the act, we think, gives him that right.

The judgment of the County Court, dismissing the petition, is reversed, and the prayer of the petition is granted, with costs.