Reynolds v. Conway

61 Vt. 313

• Court: Supreme Court of Vermont
• Decided: January 15, 1889
• Status: Published

Opinion

The opinion of the court was delivered by

Veazey, J.

The plaintiff relies upon the well settled rule in this State that a motion to dismiss or quash is confined to cases where the defect is apparent upon-the face of the record, or papers, on inspection. That which requires proof aliunde musk be presented by plea in abatement upon which an issue can be formed. Rob. Vt. Dig. p. 533.

The motions in this cause were not adapted to the case because they depend upon facts outside the papers. No proof aliunde was admissible. Yet the bill of exceptions states that the County Court found certain facts there specified, and sustained the motions ; but fails to state how it happened that proof aliunde was admitted, or that any objection was made to it, or how the facts came before the court. If it was possible for those facts-to get before the court properly, then we must presume they were properly before it, because in the revisory court the presumptions are in favor of regularity, and error must be shown. Now it is plain that the facts might have come in by agreement of parties, waiving formality of pleadings, and so been properly and regularly before the court. The plaintiff’s counsel make no-point that the facts, if proper to be considered, did not justify the judgment below; we do not touch that question. Their claim for reversal is based on two grounds; first on a statement of facts foreign to the bill of exceptions; second, on the presumption of irregularity, because these motions involved nothing outside the papers constituting the record in the County Court.. Neither can avail, because the court is controlled by the exception and the presumptions of regularity. Rob. Vt. Dig. p. 308-

Judgment affirmed.