Allen v. Taylor

26 Vt. 599

• Court: Supreme Court of Vermont
• Decided: April 15, 1854
• Status: Published

Opinion

The opinion of the court was delivered by

Isham, J.

The case of Gage v. Ladd, 6 Vt. 174, seems to dispose of the question arising in this case, as to the defendants’ right of review. The Comp. Stat. 221 § 17, gives the right of review, with few exceptions, “ to either party in all civil actions, tried before the county court.” The provisions of this statute, however, do not extend to a declaration for betterments, filed in the action of ejectment, after a final judgment in the case; as such a declaration is not a cause or suit within the letter or spirit of the act. From the various provisions of the statute, it is evident, the legislature never contemplated such a declaration to be the commencement of a new action, but merely as a continuation of the original suit in which it was filed. It was designed, in that mode, to ascertain the damages sustained, and adjudicate the respective rights and claims of the parties, growing out of the use and occupancy of the land, for which the action of ejectment was brought. The action of ejectment is the principal cause or suit, in which the right of review exists. The declaration for betterments is an incidental prosecution, a mere adjunct to the action of ejectment. The case of Hall & Parker v. Hall, 24 Vt. 637, recognized the same principle, in which the case of Gage v. Ladd, was referred to and approved. We must regard this question as having been settled by those authorities, and that the review, in this instance, was properly refused.

We see no objection to the deposition of Mr. Martin. It has been frequently decided in this, and other states, that the initials of a middle name is no part of the name; and that the omission or mis-statement of them will be no ground of objection. It is rendered certain in what cause, and between what parties the deposition was to be used.

Judgment of the County Court affirmed.