Hogan & Hogan v. Sullivan

79 Vt. 36 | Vt. | 1906

Powers, J.

The action is book account, and the plaintiffs had judgment in the county court for the amount found due by an auditor. The auditor found facts on evidence objected to by the defendant,' and reached conclusions which the defendant insists were unwarranted by the evidence; but she filed no exceptions to the report, and did not ask that the report be recommitted or rejected. There is nothing in the record to show that the questions of admissibility or sufficiency of evidence here argued were pressed upon the attention of the county court, or considered or passed upon by that court. All the exceptions show is that the case was “heard on auditor’s report.”

It is a well settled and oft-repeated rule of this Court that no questions will be considered here, except such as appear by the record to have been raised and decided by the county court. Vilas v. Downer, 21 Vt. 419; Walton v. Walton’s Est., 63 Vt. 513; Manning v. Leighton, 66 Vt. 56; 28 Atl. 630; Barrette v. Laurier, 69 Vt. 509, 38 Atl. 236; Parker v. McKannon Bros. & Co., 76 Vt. 96, 56 Atl. 536.

The defendant insists that these questions of admissibility and sufficiency of evidence were presented to the county court by virtue of a reference of them to that court by the aúditor in his report.

The general rule is that objections of this kind to the report of an auditor, referee or commissioner must be taken by way of exception, motion to recommit, or objection to the acceptance of the report, or they are waived. Kidder v. Smith, 34 Vt. 294; Wilder v. Stanley, 49 Vt. 105. But when a question of law is pointed out by such auditor, referee or commissioner, and referred to the court, there is nO’ necessity for filing any exceptions to the report. Sargent v. Sargent’s Exrs., 18 Vt. 330; Willey v. Laraway, 64 Vt. 559, 25 Atl. 436. See, also, Walton v. Walton’s Est., and Manning v. Leighton, supra. In such case the question referred is properly before the county court and available to the complaining party. The growing tendency, however, of submitting all such questions which arise during the hearing by a general reference is not approved. Good practice requires that the trier should point out each of such questions with the same precision as is demanded in an exception. The court should not be called upon to search through the report to discover the legal questions submitted. The trier should “put his finger” upon the very question reserved for review. This auditor does nothing of the kind. Indeed, he does not, even in general terms, submit any question of admissibility or sufficiency of evidence as was done in Pollard v. Barrows, 77 Vt. I, 58 Atl. 726. “All questions of law,” he says, “presented by the foregoing facts are submitted to the court.” The only question of law which did or could arise upon the facts as found by the auditor was as to what judgment was required by such findings, since a consideration of that question did not, as this report stands, involve a consideration or determination of any question of admissibility or sufficiency of evidence. In these circumstances, the exceptions should have affirmatively shown.that these questions were passed upon below.

So the only exception available is to the judgment rendered; — and that was correct. For the findings of the auditor establish a joint obligation on the part of the defendant and her deceased husband; and the settled rule of the common law is that the death of a joint promisor discharges his estate, and leaves the survivor liable for the entire amount of the debt. Richards v. Heather, I B. & Ald. 29; Burgoyne v. Ins. & Tr. Co., 5 Ohio St. 586; New Harden & Northern Co. v. Hayden, 119 Mass, at p. 365; Moore v. Rogers, 19 Ill. 347; Biggs & Co. v. Langhammer & Son, (Md.) 63 Atl. 198. This rule is modified by V. S. 2440 to the extent of making the estate of the deceased promisor liable for the debt, but the liability of the survivor is unaffected thereby.

Judgment affirmed.