Nixon v. Barber & Phelps

27 Vt. 783

• Court: Supreme Court of Vermont
• Decided: January 15, 1856
• Status: Published

Opinion

Bt the court.

As the record now stands it will be impossible to determine this motion. The county court must direct their clerk to make a definite entry of the time of filing the exceptions. Or if they should neglect upon proper request, to do so, the matter may undoubtedly be reached in some way. Or if, when made, either party claims that it is not according to the fact, we suppose, without doubt, in the appropriate mode, the record may be set right. But this court, many years since, in the case of Tufts v. Aiken, 13 Vt. 490, virtually decided this question. We have always refused to go into proof, upon affidavits, or statements of counsel and others, in regard to the correctness of a record of other courts. Such proceeding, the parties chiefly interested in the question, not being before the court, could determine nothing definitively. The proceeding should be taken, by mandamus, or other proper writ, served upon the court or officer, whose proceedings are proposed to be affected, and the opposite party, often, and regularly always perhaps, so that when once determined, it will be final upon all concerned.

The case must be continued to enable the parties to take such proceedings, as they deem proper.