Town of Chester v. Town of Londonderry

51 Vt. 535

• Court: Supreme Court of Vermont
• Decided: February 15, 1879
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

The plaintiff town had made an order of removal of the pauper to the defendant town, and the latter town had taken appeal and entered the same, with copies of the record duly certified, in the County Court. The appeal was taken on the 30th of November, and entered in court on the 4th day of December following. There were but five days intervening between the appeal and the session of the court to which it had been taken. The plaintiff appeared by attorney, and moved to dismiss the appeal for the want of notice of the appeal, which was, proforma, granted. The statute in regard to appeal in such cases is general and vague. The right is secured, but the manner is not prescribed. The statute, however, provides that “ if the court to which such appeal is taken shall be of the opinion that-seasonable notice has not been given, they shall continue such appeal to the next session of said court.” The statute in regard to paupers is entirely artificial and arbitrary, and the order of removal by the local magistrates, though interested and inhabitants of the town procuring the order, and though acting ex parte, is conclusive of the settlement of the alleged pauper, unless appealed from. And the appeal may he taken the last hour before the session of the court to which it is taken. It is obvious that there may be many cases where there is neither time nor opportunity to give any notice of the appeal before the session of the court in which it is entered. We think, in view that the ex parte order of the justices is made conclusive unless appealed from, and that such appeal may be taken on the very day of the opening session of court in which it is entered, the statute was made mandatory, that in case no seasonable notice had been given to the appellee, “ the court shall continue such appeal,” &e. In the case of Orange v. Bill, 29 Vt. 442, the plaintiff town appeared by attorney and moved to dismiss the cause because no copies had been filed and no appeal in fact taken, and the court, on proof that the overseer of the defendant town had said to one of the justices that he intended to take an appeal, retained the case, and ordered the magistrates by • peremptory mandamus to certify the copies into the appellate court.

The court treated the case as lawfully in court, though the appellant party had done nothing but to signify to one of the justices a purpose to appeal. In this case the town had such knowledge of the appeal that an attorney was employed to appear in the case; and under the general rules of practice and the provisions of the statute, we think the cause should have been continued.

The judgment of the County Court is reversed,- and the motion to dismiss overruled, and cause remanded to the County Court.