Tucker v. Yandow

135 A. 600, 100 Vt. 169

• Court: Supreme Court of Vermont
• Decided: January 8, 1927
• Status: Published

Opinion

Powers, J.

This is a tort action based on an accident that resulted in such injuries to the plaintiff, a child about three years and eight months old, that amputation of her left leg was necessitated. The case was first tried by jury at the March Term, 1925, of the Chittenden county court. That trial resulted in a verdict for the plaintiff for $2,000. This verdict, on the plaintiff’s motion, was set aside as to damages, and a retrial was ordered on that issue. This motion was contested by the defendants, who insisted that if any part of the verdict was to be set aside, it should all be set aside and a full retrial granted. Various exceptions were saved by the defendants during the trial, and one of these was to the order of the court setting aside the verdict in part. But nothing was done by the defendants under these exceptions, either by preparing and filing a bill of them, or otherwise. At the following term of the county court, the case came on for trial before another presiding judge — a fact of which we take judicial notice, Hancock v. Worcester, 62 Vt. 106, 108, 18 Atl. 1041—and a jury. Before the retrial began, the defendants moved that they be granted a full retrial. This motion was denied and they excepted. Thereupon, they moved that the transcript of the former trial be made a part of the record of the retrial, to the end that all questions of law and fact could be heard and decided on review of the second trial. This motion was granted. The trial then proceeded and resulted in a verdict fixing the damages at $12,500, which amount was cut down to $10,000 by a remittitur filed under an alternative order. A bill of exceptions signed by the judge who presided at the second trial was duly filed by the defendants. This bill attempts to cover all the exceptions saved at the first trial, and the defendants have briefed these as though they were properly before us. But they are not.

The right to an appellate review is purely statutory (Miles Block Co. v. Barre & Chelsea R. R. Co., 96 Vt. 526, 527, 121 Atl. 410), and, the provisions of G. L. 2258 being mandatory {Small v. Haskins, 29 Vt. 187; Binfret v. Tripp, 97 Vt. 404, 406, 123 Atl. 430), a compliance therewith is necessary to give this court jurisdiction (Cole v. Walsh, 97 Vt. 256, 258, 122 Atl. 664) The requirement that the bill of exceptions shall be signed by the presiding judge means the judge who presided at the trial of which’ a review is sought, Dwire v. Dwire, 86 Vt. 474, 477, 86 Atl. 164. It is just as necessary that it be signed by the proper judge as it is that it be filed at the proper time. Small v. Haskins, supra, 188. The bill before us not being, signed by the judge who presided at the March Term, we have no jurisdiction to pass upon the exceptions saved at that .term. Hancock v. Worcester, supra.

This being so, we are left with nothing to consider, for the exception saved by the defendants when the second court denied their motion for a full retrial is not discussed in their brief.

Judgment affirmed.