Lafountain v. Wilder

Supreme Court of Vermont

Lafountain v. Wilder

85 A. 5, 86 Vt. 301, 1912 Vt. LEXIS 186

CourtSupreme Court of Vermont

DecidedNovember 16, 1912

StatusPublished

Cited by4 cases

This text of 85 A. 5 (Lafountain v. Wilder) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lafountain v. Wilder, 85 A. 5, 86 Vt. 301, 1912 Vt. LEXIS 186 (Vt. 1912).

Pincite

Opinion

Per Curiam.

This was a suit in chancery pending in Windsor County, wherein such proceedings were had that a decree was rendered for the defendants. Thereupon, the orators prepáred and forwarded to .the clerk a motion for an appeal. This was received and filed by the clerk within the time limited therefor. •But no so-called “entry fee” was paid by the orator until after the adjournment of the term of the Supreme Court held next after this motion was filed.

The claim of the defendants is that such a fee was called for by P. S. 6208, and that this attempted appeal was unavailing since the prepayment of this fee is required by the statute referred to.

It was said by Ross, C. J., in Smith v. Burton, 67 Vt. 514, 32 Atl. 467, in speaking of chancery appeals that “if the decree was one from which an appeal could be taken, the motion brought the case before this Court. ’ ’

The defendants do not overlook this, but say that the statute did not then require the prepayment of the entry fee. But the statute which provides for the appeal, P. S. 1239, 1307, is, so far as here involved, the same now as it was then, V. S. 981. The defendants say, further, that the statement in Smith v. Burton is a mere dictum and only entitled to respect as such. However this may be, it is a correct interpretation of the statute, and has become the established doctrine of this Court. For, in Hyde Park v. St. J. & L. G. R. R. Co., 83 Vt. 562, 77 Atl. 913, we said that in appeals from orders of the Public Service Commission it was the motion which brought the case to this Court, and that this was so because it was so in chancery appeals, citing Smith v. Burton.

When the motion was filed by the clerk of the court of chancery the case was instantly transferred to the Supreme Court for the County of Windsor, of which he was also clerk. Tucker v. Eden, 68 Vt. 168, 34 Atl. 698. To be-sure, the next term of that court adjourned before the fee was paid, but that did not remand the case to the court of chancery. It remained in the Supreme Court, though it was omitted from the docket of that Court. When the'motion was filed it became the duty of [303]*303the court of chancery to transfer the cause and papers agreeably to the provisions of P. S. 1309. Not having done so then, he should do so now.

Whether an “entry fee” was required on such an appeal and what the situation would be if the fee had not been paid at all, are questions which are not involved nor considered.

Let the case he entered on the docket.

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Per Curiam.

This was a suit in chancery pending in Windsor County, wherein such proceedings were had that a decree was rendered for the defendants. Thereupon, the orators prepáred and forwarded to .the clerk a motion for an appeal. This was received and filed by the clerk within the time limited therefor. •But no so-called “entry fee” was paid by the orator until after the adjournment of the term of the Supreme Court held next after this motion was filed.

The claim of the defendants is that such a fee was called for by P. S. 6208, and that this attempted appeal was unavailing since the prepayment of this fee is required by the statute referred to.

It was said by Ross, C. J., in Smith v. Burton, 67 Vt. 514, 32 Atl. 467, in speaking of chancery appeals that “if the decree was one from which an appeal could be taken, the motion brought the case before this Court. ’ ’

The defendants do not overlook this, but say that the statute did not then require the prepayment of the entry fee. But the statute which provides for the appeal, P. S. 1239, 1307, is, so far as here involved, the same now as it was then, V. S. 981. The defendants say, further, that the statement in Smith v. Burton is a mere dictum and only entitled to respect as such. However this may be, it is a correct interpretation of the statute, and has become the established doctrine of this Court. For, in Hyde Park v. St. J. & L. G. R. R. Co., 83 Vt. 562, 77 Atl. 913, we said that in appeals from orders of the Public Service Commission it was the motion which brought the case to this Court, and that this was so because it was so in chancery appeals, citing Smith v. Burton.

When the motion was filed by the clerk of the court of chancery the case was instantly transferred to the Supreme Court for the County of Windsor, of which he was also clerk. Tucker v. Eden, 68 Vt. 168, 34 Atl. 698. To be-sure, the next term of that court adjourned before the fee was paid, but that did not remand the case to the court of chancery. It remained in the Supreme Court, though it was omitted from the docket of that Court. When the'motion was filed it became the duty of [303]*303the court of chancery to transfer the cause and papers agreeably to the provisions of P. S. 1309. Not having done so then, he should do so now.

Whether an “entry fee” was required on such an appeal and what the situation would be if the fee had not been paid at all, are questions which are not involved nor considered.

Let the case he entered on the docket.

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Bluebook (online)

85 A. 5, 86 Vt. 301, 1912 Vt. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lafountain-v-wilder-vt-1912.

Opinion

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