Kaeser v. Town of Starksboro

80 A.2d 604, 116 Vt. 578, 1951 Vt. LEXIS 135

Opinion

Per Curiam.

This is a continuance of the proceedings reported in 116- Vt 389, 77 A2d 831, 834, relative to a petition for a new trial. We there stated: “To prevail upon this petition there should be a showing that he (Saunders) never, prior to the trial, indicated to the selectmen, or any of them, that his motion did not authorize its purchase. (Referring to the hereinafter mentioned truck.) There should also be a showing that none of the selectmen in office in October, 1947, and in office up to the time of trial knew, or had any reason to know, that the vote at such October meeting was in fact upon a motion ‘to buy a four wheel drive truck but not a Marmon Herrington.’ ” We there found the petition defective, and allowed the defendant until February 13, 1951, to file an amended or supplemental petition and additional supporting affidavits.

Within the time limited the defendant filed an amended petition supported in the respects indicated by the affidavits of only two selectmen, only one of whom held office at the time of the purchase of the truck. The tenor of these affidavits is to the effect that the affiants were present at the October, 1947, town meeting and saw Saunders rise to make a motion under Article 14 of the warning, but owing to the noise and confusion neither they nor the other two selectmen present who signed the purchase order, heard the part of the motion relative to the Marmon Herrington truck, and that Saunders never told the affiants or the other selectmen that his motion was “to buy a four wheel drive truck but not a Marmon Herrington.”

The amended petition is met by a motion to dismiss because the attached affidavits do not comply with the requirements of our former opinion above quoted. This motion must be granted. Affidavits should have been procured from the other selectmen. The affidavits as to what these other selectmen heard or were not told by Saunders are not convincing and do not comply with the above requirements.

Let the stay be vacated and the petition be dismissed with costs.