In re Cobb's Estate ( 1968 )

Per Curiam.

The executor has moved to dismiss the appeal in this matter. The action began with a petition by certain interested parties to review on the grounds of fraud, accident and mistake under 12 V.S.A. §2357, the allowance of the will in this estate. The executor’s motion to dismiss the petition resulted in a judgment order by the Orange County Court, after hearing, “denying” the petition on May 16, 1968, this action being within the December Term 1967 of Orange County Court.

On June 4, 1968, a new term of Orange County Court began. On July 18, 1968, without notice to the executor, hearing or recorded explanation, a second judgment order “granting the motion to dismiss” was filed. The previous order was not mentioned. A notice of appeal was timely filed as to this second order, but nearly two months overdue as to the first order.

Although there is a discretionary power in courts to vacate or modify judgments, under certain circumstances, Haven v. Ward Estate, 118 Vt. 499, 502, 114 A.2d 413, the action taken in this case is not supported by a demonstration of necessity for nor an appropriate exercise of this authority, in either form or substance.

Motion of the executor to dismiss is granted.