78 Vt. 145 | Vt. | 1905
The defendants obtained a verdict at the June Term, 1900, of Caledonia County Court, which the plaintiff moved to set aside for misconduct of certain of the jurors and of the officer who had them in charge. With this motion pending, the case was entered “with the court,” and was held by the late Chief Judge TaET, who presided at the trial, until his death. So no judgment had been entered upon the verdict, and no bill of the exceptions taken by the plaintiff during the course of the trial had been signed. In these
The determination of the question thus presented depends upon the character of the right which entitles an excepting party to a new trial when the presiding judge dies without signing the bill. For if the right is a vested one it is beyond the reach of the Legislature, and the act of 1902 could not divest it. On the other hand, if it springs simply from a rule of procedure, the act of 1902 applies, and the plaintiff is provided with ample means for the prosecution of his exceptions, and the necessity, upon1 which is based the right to a new trial, is removed, and the reason for such procedure fails. While it is true as a general rule of construction that retroactive effect is not favored in the absence of terms clearly indicating such legislative intent, it is equally true that
The rule granting a new trial under the circumstances here existing seems to have received its first announcement in Newton et ux. v. Boodle et al., 54 E. C. L. 795, decided in 1847. The case was tried before Chief Justice Tendal, who ordered a verdict for one of the defendants, to which the plaintiffs excepted. A bill' of exceptions was prepared and presented to the lord chief justice, but he ultimately died without having sealed the bill. Thereupon, after some delay, judgment having been signed, the plaintiffs moved for a rule upon the defendants to show cause why, among other things, the judgment should not be set aside and a new trial granted. In granting the rule, Chief Justice Wilde used this language: “If it should turn out, upon examination, that the plaintiffs have, without any fault of their own, but solely from the circumstance alluded to- lost the benefit of their bill of exceptions, the court think that the justice of the case may require that they should have an opportunity to try the cause
A little later, Chief Justice Wiia® himself, left Benett v. Steam Boat Co., 16 C. B. 29, in the same plight, and a new' trial was granted, — apparently on the authority of Newton v. Boodle, — but there is nothing in the case to aid us here. The rule thus established has been generally followed in this country as is shown in the opinion in Nelson v. Marshall,
In reaching this conclusion we have not overlooked People v. Judge, 40 Mich. 630, where a contrary result is arrived at on the precise question here presented, or Yeatman v. Day, 79 Ky. 186, which is in conflict with the views herein expressed. But notwithstanding these very respectable authorities to the contrary we hold that the provisions of the act of 1902 apply to this case, and that the court erred in denying the motion of the defendants and in granting that of the plaintiff.
Judgment reversed and cause remanded.