State v. Brown

160 A.2d 879, 121 Vt. 459, 1960 Vt. LEXIS 144

• Court: Supreme Court of Vermont
• Decided: May 3, 1960
• Docket: 1150
• Status: Published

Opinions

Hulburd, C. J.

The respondent is seeking to appeal from a judgment entered on a verdict as set forth in a judgment order dated November 24, 1959 and filed December 3, 1959. He is met with a motion to dismiss his appeal in this Court " — on the grounds that said appeal was not filed in accordance with law, which said defective filing, it is believed, deprives this Honorable Court of jurisdiction to hear said appeal.”

12 V. S. A. §2382 provides as follows: "In any action or proceeding, civil or criminal, appealable from any court (except a justice court), commission, board, agency or department of the state or any political subdivision thereof, appeal may be taken by the filing of a notice of appeal as hereinafter set forth with (1) the clerk of the court appealed to and (2) the clerk or register of the tribunal appealed from or the commissioner, as the case may be.” The following section, 2383, specifies that "A notice of appeal shall be filed within thirty days from the date of notification to the appealing party of the rendition of any appealable judgment * * * *. Filing shall consist of delivery by hand or by mailing such notice of appeal to the persons specified in §2382 of this title.”

The new appeal procedure must be viewed against a background of certain established principles regarding appeals generally. Under previous appellate procedure this Court always held that the time of filing of the bill of exceptions had to be within the thirty days then prescribed by statute. Rinfret v. Tripp, 97 Vt. 404, 406, 123 A. 430; In re Estate of Towner, 117 Vt. 554, 97 A.2d 538. The corresponding requirement as to the time of filing the notice of appeal is equally applicable under the new law. Then again, we have broadly held that the requirements of a valid appeal are statutory and the jurisdiction of the court to which the appeal is taken depends upon a compliance with the statute. This is equally true under the new appellate procedure. Compare, Duprey v. Harrington, 103 Vt. 274, 153 A. 355; Parker v. Weaver, 110 Vt. 20, 1 A.2d 729; Roddy v. Estate of Fitzgerald, 113 Vt. 472, 476, 35 A.2d 668; Holbrook Grocery Co. v. Commissioner of Taxes, 115 Vt. 275, 282, 57 A.2d 118.

It is to be noted that by 12 V. S. A. §252 the legislature, under the new procedure, has in certain instances provided that an extension of time may be granted to a party required to do an act within a specified time, but this section concludes: "but the court may not permit the filing of a notice of appeal after the original period, as extended, has expired.” (The "as extended” of course refers to an extension asked for and granted before the specified period has expired.) Thus, the legislature leaves no doubt that the requirement as to the time of filing a notice of appeal is mandatory. Once the time has expired, the Court is left without authority to act.

We are now ready to turn to the specific situation before us. In accordance with the jury’s verdict, rendered on November 5, 1959, the Windham County Court adjudged the respondent guilty of arson causing death as set forth in the indictment in violation of 13 V. S. A. §501. Sentence was for life imprisonment pursuant to the jury’s determination as provided in 13 V. S. A. §>2303. Notification of the rendition of this judgment was given by the county clerk to the attorneys of record for the respondent the same day the judgment order was filed, namely, December 3,1959. On January 5,1960, the clerk of the Windham County Court issued its mittimus in the case. Thereafter, on the same day, he, received a notice of appeal from the respondent’s attorney.

Counsel for the respondent claims that this bare recitation of the facts derived from the record does not disclose his full effort to make timely compliance with the statutes. By affidavit he has called to our attention certain other steps which he took in an attempt to perfect his appeal. Giving him the benefit of what he claims in that regard, we assume his action to have been as follows.

On December 15,1959, this Court, in response to a petition presented in behalf of the respondent by John S. Burgess, attorney, assigned the latter as counsel for the respondent to act at the expense of the state. He was duly notified to this effect by a letter which he acknowledges he received on or about December 16, 1959. On December 28, 1959, attorney Burgess wrote a letter to the Windham County Clerk in which he observed that "the time for filing a notice of appeal under 12 V. S. A. §2383 is fast approaching in the above captioned matter * * The reference was to the present case and the letter went on to place an order for a transcript of the trial in county court. Thereafter, on December 31, 1959, a notice of appeal signed "Frank Brown by John E. Burgess, his attorney,” was mailed to Norman E. Peduzzi, "Clerk of the Supreme Court, Montpelier, Vermont” together with extra copies for the parties and a check for the filing fee in the amount of five dollars. With New Year’s day falling on a Friday, we take judicial notice that this letter would not normally come to the attention of Mr. Peduzzi until the following Monday, January 4, 1960. On that date, upon receipt of the appeal papers, Mr. Peduzzi wrote to attorney Burgess as follows:

"Dear John,

These papers on appeal should properly go to the Clerk of the Supreme Court within and for the County of Windham, rather than Clerk of the General Term, who will make the necessary distribution, and I have also endorsed the entry fee over to him as he is responsible for that. George Daley will prepare the docket entries in the case and certify it to us at a later date.

(signed) Norman”

It so happened that the attorney for the respondent was in Supreme Court on January 5, 1960, and, at that time, Mr. Peduzzi told him what he had done. Thereupon, Mr. Burgess immediately telephoned his office in Brattleboro and caused "all the papers in the case” to be handed to George L. Daley who is county clerk for Windham County, and, by virtue of his office, clerk of the Supreme Court for Windham County. By this time, mittimus in the case had already issued as we have previously noted, no notice of appeal having been filed and the time having expired on January 4, 1960.

If the respondent is to sustain his appeal, it must be by reason of the procedure followed by his attorney initially. His subsequent actions did not result in a filing of the notice of appeal within the required thirty days; hence, for reasons already stated, the belated efforts were entirely ineffectual.

The respondent’s predicament would at first seem to arise out of a confusion as to the identity of the clerk of the supreme court. Fairness to counsel prompts us to acknowledge that in a loose colloquial sense, the clerk of the general term is frequently alluded to as the clerk of the supreme court. In ordinary conversation, a reference to the clerk of the supreme court would be generally understood to apply to Mr. Peduzzi with whom counsel first attempted to file his notice of appeal. And this is so even though by a statute of long standing it is provided: "Each county clerk shall be a clerk of the supreme and county court and court of chancery for the county.” 4 V. S. A. §601. Moreover, Rule 1 of the supreme court rules is to the same effect. This has all been expounded and emphasized in the case of Tucker v. Eden and Lowell, 68 Vt. 168, 34 A. 698. Nevertheless, in spite of all this, the loose reference has tended to create something close to a pitfall to the unwary. Apparently because of this, the respondent argues that the statute is ambiguous. It has been held that where this is so the appellant should not be deprived of his appeal because of the statute’s uncertainty. Schoutens v. Superior CL in and for Los Angeles County, 97 Cal. App. 2d, 855, 218 P. 2d 999, and compare, Webb v. State of Vermont, 90 Vt. 65, 96 A. 599.

In this connection we must consider the case of Essex Storage Electric Co., Inc. v. Victory Lumber Co., 93 Vt. 437, 442, 108 A. 426. The appeal there, as here, was filed with the wrong clerk. The situation was this: the appellant was seeking to appeal from a decision of the public service commission to the supreme court. The statute relative to such appeals then provided that they were to be taken and entered in supreme court in the same manner as chancery appeals. The latter required a written motion filed with the clerk within twenty days from the date of the decree appealed from. Accordingly, the would-be appellant filed his motion with the clerk of the court of chancery. It was held that the appeal should have been filed with the clerk of the commission and not of the court and that the supreme court, therefore, had no jurisdiction to hear the appeal. It would seem that the procedure prescribed by the statute for appeals from the public service commission was much more open to the charge of ambiguity than what we have here. In the face of Essex Storage Electric Co., supra, it is not easy to accept the respondent’s claim of ambiguity.

His trouble, however goes deeper than that. In addition to filing his notice of appeal with the wrong clerk of the court appealed to, the respondent made no filing with the clerk of the court appealed from. A notice of appeal should have been filed with the county clerk. The respondent did not do this. The design of the appeal procedure set up by the statute is clear. The appellant is required to show where he is going and where he came from. In keeping with this end, a notice of appeal must be given both to the court appealed to and to the court or tribunal appealed from. Thus, it may be seen that our appeal statute is unlike the procedure embodied-in the federal rules which calls for only one notice of appeal. As a result, the decisions of the Federal Courts under their rules are of little help in our present difficulty. It is not for us to read into our procedural act everything that may be found in the federal rules, nor are we to read out of our act everything which it contains that the federal rules do not. Effect must be given to each of the provisions which have been enacted, and it is to be noted that no discretionary latitude for hardship cases has been vested in the Court by the legislature.

If all that the Legislature meant to require was a manifestation, in some form, of an intent to appeal, it would never have provided for a two-pronged notice of appeal. One notice would have been sufficient to show that. Beyond that, however, it can not be said that the letter from respondent’s counsel ordering a transcript fairly indicated to the county clerk that an appeal was being taken. On the contrary, it informed the clerk that counsel had in mind that a deadline was approaching and that a notice of appeal was necessary if an appeal was to be taken. This notice failed to arrive within the statutory time.

The practical importance of filing a notice of appeal with the clerk of the court appealed from is well illustrated by this case; for, when the time for taking an appeal has expired, and no notice of appeal has been filed with the clerk of the court below, the clerk of that court quite naturally and properly assumes that no appeal has been taken. As a normal consequence, he issues his mittimus as he did in this case. Having done so, he is not to be put in the vulnerable position of not being able to rely on the statute.

It follows from the foregoing that whatever effect is given to the filing of the appeal notice with the clerk of the general term, we are still confronted with a fatal departure from the provisions of the statute with respect to the filing of a notice of appeal with the county clerk.

In making this determination, we are well aware of the seriousness of the situation and all its attendant consequences. This is not the first time, however, that a court has had to struggle with a problem of this sort. In the very recent case of United States v. Robinson, (1960) 361 U. S. 220, 80 S. Ct. 282, 288, 4 L.Ed. 2d, 259, two respondents were convicted of manslaughter and filed notices of appeal twenty-one days after judgment instead of the required ten days. The government moved to dismiss the respondents’ appeals for want of jurisdiction. Although the lower court found excusable neglect, (something our statute does not provide for) the United States Supreme Court reversed the Court of Appeals saying that the taking of an appeal within the prescribed time is mandatory and jurisdictional. The Supreme Court observed: "That powerful policy arguments may be made both for and against greater flexibility with respect to the time for taking appeal is evident. But that policy question, involving, as it does, many weighty and conflicting considerations must be resolved through the rule-making process and not by judicial decision * * *.”

It should be borne in mind that there is no constitutional right of appeal. Miles Block Co. v. Barre & Chelsea R. R. Co., 96 Vt. 526, 121 A. 410; Roddy v. Fitzgerald’s Estate, 113 Vt. 472, 475, 35 A.2d 668. Although by failing to take advantage of the method prescribed for appeal, the respondent has left this Court without jurisdiction to consider his case, he has not been deprived of due process.

The respondent has cited to us a number of cases in which this Court has relieved counsel of the consequences of a late appeal by granting a petition for a new trial. There is no doubt but that this Court has used such a petition as a device for relieving a would-be appellant from the loss of his appellate review. See Nelson v. Marshall, 77 Vt. 44, 58 A. 793; Hotel Vermont Co. v. Cosgriff, 89 Vt. 173, 94 A. 496; Reynolds v. Romano, 96 Vt. 222, 118 A. 810; Walsh v. Cole, 97 Vt. 459, 123 A. 850. A petition for a new trial, however, is not before us, and it is to be noted that relief of this sort has never been granted except in those cases where the right of appeal has been lost by reason of circumstances other than those arising from the fault of the petitioner.

Appeal dismissed. The motion for reargument is denied. Let full entry go down.