Sherwin v. Ladd

Slack, J.

This is a petition for a writ of mandamus to compel a former judge of the Burlington city court to sign a bill of exceptions in a cause heard and determined by him, wherein one Brown was plaintiff, and this petitioner was defendant. The instant case was heard on demurrer to the replication.

[1, 2] The petition alleges that the original action was account; that before hearing the defendant, petitioner herein, moved for a trial by jury, insisting that she was entitled thereto under No. 91, Acts 1915, § 12 (G. L. 1651), which provides that, “In civil causes, either party shall be entitled to a trial by a jury of twelve persons ’ ’; that the motion was overruled, and she was allowed an exception; that the cause was thereafter heard by the court, and final judgment rendered for . the plaintiff November 1, 1920; that she caused a bill of exceptions to be prepared and presented to the judge for his signature, and he refused to sign the same; that she frequently requested the judge to pass the case to the Supreme Court, before final judgment, on the question of her right to a trial by jury, but he refused to do so. The answer admits these allegations; and alleges, further, that the bill of exceptions as drawn presented the single question *189 raised by the overruling of the defendant’s motion for a jury trial; that it was not presented to the judge for his signature until December 6,1920; that the time for filing exceptions in that case expired December 1, 1920, and that for that reason the judge did refuse to sign such exceptions. In reply, the petitioner alleges that at the close of the trial in the original case she requested the judge to pass the case to this Court, before final judgment, on the question of her right to a trial by jury, and that she repeated such requests frequently before the time for filing exceptions expired, but does not attempt, otherwise, to meet the new matter set up in the answer. The demurrer challenges the sufficiency of the replication on the ground that the replication fails to meet, by traverse or otherwise, the allegation in the answer that the bill of exceptions in the original case was not seasonably presented to the judge for his signature. The demurrer must be sustained. That the replication is defective in the particular pointed out by the demurrer is too plain to admit of argument. The allegation of repeated requests to pass the case to the Supreme Court, is immaterial. No court is required to comply with mere “requests”. If a litigant desires to save his legal rights he must proceed in a legal manner, and if he would have the judgment of this Court he must come here in a proper way. Moreover, while the trial court may, “in its discretion, ’ ’ pass a cause or proceeding to this Court before final judgment, “when exceptions are taken and filed,” in the trial court (G. L. 2262), an exception does not lie to its refusal to do so.

[3-5] The replication being disposed of, the case is for consideration on the petition and answer. All averments of fact in the answer, and all material allegations in the petition which stand admitted, are taken to be true. State v. Plumley et al., 83 Vt. 491 , 76 Atl. 146 . Since this is so, the writ must be denied. The petition being addressed to the sound judicial discretion of this Court, the writ will never be granted when it will be unavailing. State v. Babcock, 51 Vt. 570 ; Kendall v. Aldrich, 68 Vt. 478 , 35 Atl. 429 . The exceptions, if signed, could not avail the petitioner because the time for filing them expired- before she took steps to have them allowed. G. L. 2258. Hotel Vermont Company v. Cosgriff, 89 Vt. 173 , 94 Atl. 496 ; Mead v. Moretown, 72 Vt. 323 , 47 Atl. 1072 ; State v. Webb, 89 Vt. 326 , 95 Atl. 892 .

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[6] The provisions of G. L. 2258, fixing the time for filing exceptions apply to municipal courts. G. L. 1647. Jones v. Metcalf, 95 Vt. 67 , 112 Atl. 831 .

At the time these proceedings were commenced, an execution had been issued on the judgment in the original case and was then in the hands of the petitionee Lord, who was restrained from proceeding therewith pending the determination of this petition.

The writ is 'denied, and the petition dismissed with costs. The order restraining the petitionee Lord is vacated.