Gove v. Gove's Admr., 87 Vt. 468

87 Vt. 468 | Vt. | 1914

By the Court.

To take an effectual appeal from an order or decree in chancery the appealing party must procure a written motion therefor to be filed with the clerk-of the court in' which the cause is pending. P. S. 1307. Both term and vacation decrees in chancery are appealed from in the same way and within the same time, viz.: twenty days from the time the final decree- or decretal order is filed with the clerk of the court. West Derby v. Cemetery Asso., 69 Vt. 168, 37 Atl. 239; Greene v. McDonald et al., 72 Vt. 258, 47 Atl. 779; Hyde Park v. St. J. & L. C. R. R. Co. 84 Vt. 326, 79 Atl. 873. By statute twenty days from the time the decree is made — in other words, filed with-the clerk — are allowed for taking an appeal or asking for a rehearing. P. S. 1301.

Leave 'of the chancellor' to file the motion is unnecessary, except in foreclosure proceedings." P. S. 1307.' With that- exception, a chancellor has no' power -to allow or deny an appeal from his decree. If the decree is one- from which an appeal can be taken without leave of the chancellor, the filing of the written motion within the time limited brings the case to this Court. Smith v. Burton, 67 Vt. 514, 32 Atl. 467; Hyde Park v. St. J. & L. C. R. R. Co., 83 Vt. 562, 77 Atl. 913; Ibid, 84 Vt. 326, 79 Atl. 873.

The order- of the chancellor reserving an appeal to either party does not operate to secure an appeal and does not relieve the necessity of filing a written motion therefor. Gove v. Dyke et al., 14 Vt. 561. If the motion for an appeal is not seasonably filed the chancellor has no power to extend the time by granting leave to file the appeal. Greene v. McDonald et al., 72 Vt. 258, 47 Atl. 779. The right to appeal is conferred by statute and must be exercised in the manner therein prescribed. The law does not authorize this Court to grant an appeal when the right has been lost through fraud, accident or mistake. Such power is exercised by the county court over appeals from probate courts and justices of the peace solely by virtue of statutes conferring it. Whether a decree can be opened after the time for recording it is passed, for no other reason than to permit a party who has lost an appeal by fraud, accident or mistake to have his appeal is a question we do not decide; but in any event such a motion is addressed to the discretion of the court of chancery and not to this Court, which sits in chancery appeals only as a court of error. Hall & Bingham v. Lamb et al., 28 Vt. 85; Porter v. Vaughan et al., 22 Vt. 269.

This having been a vacation decree the provisions for an appeal found in P. S. 1239 apply. It is there provided: "A party may, by a written motion filed with the clerk, appeal from such order or -decree, ’ ’ &c. The appeal is made effective by the act of filing the motion therefor and paying the required entry fee. In this ease no. question as to the entry fee is raised by the motion to dismiss. The-term "filed with-the clerk,” as used in this statute, does not refer to the clerk’s memorandum of filing on the motion;- nor is the appeal dependent upon the act, or neglect, of the clerk, with reference to the- disposition of the paper or making of proper docket entries.

The word "file” is derived from the Latin fihim, signifying ■ a thread, ■ and its present- application -is evidently drawn from .the, ancient .practice of placing papers ■ upon a thread or wire for the more safe keeping and ready turning of the same.This practice was apparently in .vogue in some counties in this State in the early days. The origin of the term clearly indicates that the filing of a paper can only be effected by bringing it to the notice of the officer who anciently put it upon the thread or wire. Under the modern practice, the filing of a document is generally understood to consist in placing it in the proper official custody by the party charged with the duty of filing it, and the receiving of it by the officer to be kept on file. See monographic note to Beebe v. Morrell, 15 Am. St. Rep. 294. In numerous cases the rule is stated thus: “A paper is filed when it is delivered to the clerk of the court to be kept with the other papers in the same cause.” Oats v. State, 153 Ind. 436, 55 N. E. 226. The filing party is entitled to the benefit of his act when he places the document in the custody and control of the proper officer for the purpose of filing, if accompanied by payment or tender of fees, when fees are required, unless advance payment is waived. Parhhurst v. Pearsons et al., 30 Vt. 705; Phillips v. Wood, 31 Vt. 322.

The written memorandum which should be made by the clerk on the paper is but the evidence of the delivery to him for filing. While the certificate of the clerk is important as evidence of the fact, in its absence testimony may properly be received to show that the paper has been filed. Peterson v. Taylor, 15 Ga. 483, 60 Am. Dec. 705 and note.

The ruling in Gove v. Dyke et al., 13 Vt. 308, is not controlling. That was a motion in this Court for leave to enter an appeal claimed to have been lost by the negligence of the clerk, while this is a motion to dismiss an appeal because, it is alleged, the motion therefor was not filed in time. While the written motion in the files would not be seasonable as an original motion, it may properly be treated as a substitute for the motion first made by the oratrix which was seasonably filed. If necessary to prevent a failure of justice, this Court would infer, in the absence of anything to. the contrary, that the chancellor directed the substitution. The holding in Gove v. Dyke et al., 14 Vt. 561, is consistent with this result, as there no motion for an appeal was made, at least not until after the time for making it had expired.

The facts found by the master, aided by inferences fairly to be drawn therefrom, justify the conclusion that the oratrix is entitled to an appeal.

Motion to dismiss the appeal overruled.