Whiting v. Dow

Supreme Court of Vermont

Whiting v. Dow

42 Vt. 262

CourtSupreme Court of Vermont

DecidedAugust 15, 1869

StatusPublished

Cited by8 cases

This text of 42 Vt. 262 (Whiting v. Dow) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whiting v. Dow, 42 Vt. 262 (Vt. 1869).

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Opinion

The opinion of the court was delivered by

Prout, J.

We do not conceive it necessasy to go into an extended discussion of the question, as to the power of the county court to grant a certificate of the character in question, in this case, where the judgment is rendered in an action founded on tort. Sections 23 and 36 of chapter 121 of the General Statutes seem to place that matter beyond dispute. The present action is one of that nature, and the real point of exception is that the facts as disclosed by the exceptions do not justify the action of the court in granting it; and the objection rests upon the fact that the trespass, that is, the entry of the plaintiff’s house, was by his leave and license. The case, however, shows that the plaintiff’s evidence tended to prove all that was necessary to entitle him to recover, and the jury found in his favor. The question then as to granting the certificate, both from the nature of the action and character of the injury, was to be determined from a consideration of all the facts as disclosed on the trial. In Robinson v. Wilson, 22 Vt., 35, it is said-to be mostly a question of fact, and where the decision in respect to it proceeds on a matter of fact it is not revisable in this court. In the present case, the verdict having settled the question as to the right of recovery, we cannot say from anything that appears that the -action of the court Was unwarrantable. To justify us in overruling the county court, error must affirmatively appear.

The judgment of the county court is affirmed.

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The opinion of the court was delivered by

Prout, J.

We do not conceive it necessasy to go into an extended discussion of the question, as to the power of the county court to grant a certificate of the character in question, in this case, where the judgment is rendered in an action founded on tort. Sections 23 and 36 of chapter 121 of the General Statutes seem to place that matter beyond dispute. The present action is one of that nature, and the real point of exception is that the facts as disclosed by the exceptions do not justify the action of the court in granting it; and the objection rests upon the fact that the trespass, that is, the entry of the plaintiff’s house, was by his leave and license. The case, however, shows that the plaintiff’s evidence tended to prove all that was necessary to entitle him to recover, and the jury found in his favor. The question then as to granting the certificate, both from the nature of the action and character of the injury, was to be determined from a consideration of all the facts as disclosed on the trial. In Robinson v. Wilson, 22 Vt., 35, it is said-to be mostly a question of fact, and where the decision in respect to it proceeds on a matter of fact it is not revisable in this court. In the present case, the verdict having settled the question as to the right of recovery, we cannot say from anything that appears that the -action of the court Was unwarrantable. To justify us in overruling the county court, error must affirmatively appear.

The judgment of the county court is affirmed.

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Bluebook (online)

42 Vt. 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whiting-v-dow-vt-1869.

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