Carr v. Sevene, 47 Vt. 574

Carr v. Sevene

47 Vt. 574 | Vt. | 1874

*577The opinion of the court was delivered by

Ross, J.

I. The plaintiff objects to the judgment of the county court, on the ground that the commissioner erroneously heard the claimant. The plaintiff claimed at the hearing before the commissioner, that the claimant had no right to be heard, for the reason that he had neglected to file in the county court any declaration or allegation of his right or claim to the funds in the hands of the trustees. Wo do not think that this proceeding before the commissioner, furnishes any ground for reversing the judgment of the county court, under the circumstances which exist in this case. The trustees were adjudged liable by the justice court. The claimant appeared at the trial in that court, and brought the case to the county court by appeal. In the county court, the plaintiff, without any declaration or allegation of his claim or right to the funds having been filed by the claimant, consented to the appointment of the commissioner. The trustees made no question about their liability to some one. The only issue was that between the plaintiff and claimant as to which of them was entitled to the funds in the trustees’ hands. The statute provides that the claimant may allege and prove any facts material to the establishment of his claim. Gen. Sts. ch. 34, § 55. It does not prescribe the manner in which the allegations shall be made. That seems to be left to the discretion of the court before which the proceedings are had. If the plaintiff had objected to the appointment or calling out of the commissioner, because the claimant had filed no allegation of his claim to the funds, doubtless the county court would have made the filing of such allegation a condition precedent to the appointment or calling out of the commissioner. On the coming in of the commissioner’s report, if it had appeared that the plaintiff had been prejudiced in the hearing before the commissioner, through the failure of the claimant to file allegations setting forth his claim to the funds, the county court might, in the exercise of a sound discretion, have ordered such allegations filed, and that the matter be reheard before the commissioner. But if that court was satisfied that the plaintiff had not been prejudiced in the hearing before the commissioner *578by such neglect or failure of the claimant, it would not be the duty of that court to set aside the report, and order anew hearing. The report of the commissioner furnished the facts necessary for the foundation of the judgment of the county court. Whether the absence of allegations 'filed by the claimant, furnished any substantial ground -for setting aside the report of the commissioner, was addressed to the sound discretion of the county court; and if the exercise of such discretion by the county court could be revised by this court, from anything that appears, it was exercised wisely in this case. In Towne v. Leach et al. 32 Vt. 745, it was decided that it was too late to object in the supreme court that no allegations had been filed by the claimant, where a trial has been had of the claims of the respective parties, upon their substantial merits, without raising such objection before the commissioner or in the county court. This is all that it was necessary to decide on the facts of that case. It shows that a legal judgment can be rendered by the county court in a case in which the claimant has filed no allegation. If such allegations can be altogether dispensed with in any case, it would seem to follow as a necessary conclusion, that it is discretionary with the county court whether it will order them filed or not. Whether the filing of allegations by the claimant, wholly rests in the sound discretion of the county court or not, we think that the plaintiff in this case, by allowing, without raising this objection, a commissioner to be appointed, and called out to try the very issue whether the plaintiff or claimant should hold the funds in the trustees’ hands, so far waived the filing of the allegations, that he could not insist that the case should not be heard without them.

II. The plaintiff also excepts to the report of the commissioner and judgment of the county court, because the facts reported by the commissioner, do not show an assignment, valid against the trustee process. The reported facts show that the trustees never owed the defendant any debt which he could enforce in his own name. The indebtedness of the trustees for the labor of the defendant, accrued to Weston, for the benefit of the claimant so far as the defendant should be indebted to the claimant for supplies advanced by him to the defendant, to enable the defendant to per*579form the services for the trustees. No question of assignment of this indebtedness arises on the facts reported. The only question raised by the facts .reported is, to whom and for whose benefit did the indebtedness accrue ? The arrangement between the defendant, claimant, Weston, and trustees, was, in effect and substance, that the defendant should perform services in the employment of the trustees for the claimant in the name of Weston, who should receive the pay from the trustees, and pay the same to the claimant, in consideration of which the claimant agreed to advance and did advance supplies to the defendant and his family, to enable him to perform such services. It was an original undertaking, and nut the assignment of any claim existing, or which was to be thereafter created. We find no error in this respect in the acceptance of the report by the county court, nor in the judgment it rendered on the facts reported.

Judgment affirmed.