77 Vt. 167 | Vt. | 1904
This action was case for alleged fraudulent representations in the sale of real estate. Trial by the court was had on the issue raised by a plea of the Statute of Limitations, replication thereto', rejoinder to the replication and traverse of the rejoinder. On these pleadings and facts found by the court judgment was rendered pro forma for the plaintiffs. The general issue to the declaration was pleaded, but for sufficient reasons the trial proceeded as above stated with the understanding that if the issue tried by the court was finally determined in favor of the plaintiffs the cause should be remanded to> the county court for trial on the general issue and such other pleadings as might be proper.
This is the same case that is reported in volume 73 of Vermont Reports on pages 88 to 92 inclusive, 53 Atl. 330, 331, and the pleadings here involved are, with the exception
This suit is for the same cause of action as a cause-formerly brought by the plaintiffs against the defendants and tried on a plea of the general issue at the September Term, 7899, of the Franklin county court. In that case a verdict for the plaintiffs was on such trial returned. After verdict the defendants filed a motion in arrest of judgment on the ground of the insufficiency of the declaration. This motion the trial court overruled and rendered judgment on the verdict. The defendants excepted and the case was passed to the Supreme Court. The. case is reported in volume 73 of Vermont Reports, and the opinion and judgment order, as found on pages 26 to 34 inclusive, and 50 Atl. 633-636, are referred to- in the finding of facts herein and are made a part thereof.
The main question raised by the facts found and reported is whether the plaintiffs voluntarily abandoned the former suit.
The court below treated this as a question of law on the-facts found; and the nature of the facts found was such that the trial court was clearly right in this regard. In the former suit the defendants after verdict moved in arrest of judgment. On the question thus raised the defendants finally prevailed, the Supreme Court holding the declaration bad on motion in arrest. Had the Court thereupon simply arrested judgment no question could be made but that under V. S.
The case_ was remanded to the county court and the plaintiffs elected to submit to an arrest of judgment rather than to amend the writ and proceed to a new trial on the-terms imposed. It is now claimed that this election between the two courses made the submission to an arrest of judgment a- voluntary abandonment of the suit. But it is to be-observed that this was not a case in which the plaintiffs could, do either of neither of two things. They sought to hold the verdict which they had obtained but were compelled to abandon it and to take one of two courses, both of which were against their will. Under such circumstances the talcing of one course rather than the other does not make the course taken voluntary, in any proper sense. If on conviction a respondent is sentenced to pay a fine or to- undergo imprisonment, his “election” or “choice” not to pay the fine does not lend a voluntary character to the alternative imprisonment. Numerous illustrations of the principle here stated will occur to every one. In submitting to an arrest of judgment when in a dilemma not of their own seeking but forced upon them, the plaintiffs were acting under judicial compulsion. In the decision of the former case this Court marked out. no course for the plaintiffs to pursue, but simply granted the option which it did and compelled its exercise, giving at the same time clear expression to its understanding that, however the
The pro forma judgment of the county court is affirmedt and the cause is remanded.