32 Vt. 579 | Vt. | 1860
The questions presented in this case arise upon a certain rule of reference issued, on the application of the parties, by Alfred Forbes, a justice of the peace of the county of Franklin, and the report thereon made by the referee. From the application made by the parties to the justice to issue the rule of reference, which was in writing and accompanies the referee’s report, it appears that on the 14th day of June, 1858, a suit at law was pending before said justice in favor of Lazell as plaintiff against Houghton as defendant, and that on the same day the parties made application to said justice to issue a rule that the subject matter of the said suit be referred agreeably to the statute to Valentine S. Ferris, of Swanton, in said county, as referee, he having been mutually agreed upon as such referee by said parties. The said justice thereupon issued his rule of reference agreeably to the application, and substantially in the form prescribed by the statute ; (Comp. Stat., p. 618, form 27 ) The rule of reference was dated on the same 14th day of June, 1858, and required the report of the referee to be made in writing, and if the matters in demand should not exceed forty dollars, to be returned to the said justice at a place named, in said Swanton, on, th% 7th, day of August, 1858., at ten o’clock in the foreno.on, to which time and place the court of the said justice stood adjourned for the purpose of receiving such report and rendering judgment thereof ; but if the matters in demand should exceed forty dollars, the rule in that case required the said report to be. returned
It appears from the report that the referee was attended by the parties, on due notice of the time and place of hearing, on the 5th day of August, 1858, and that “ by the agreement of the parties, the ” (hearing of the) ‘‘ cause was continued until the 10th day of September” (then) “next,” atan hour and place named, “ and the rule enlarged and that, at the last mentioned time and place, “ the parties again with their counsel appeared, and the cause, by request of said Houghton, the defendant, was again continued to the 18th day of November, 1858,” on certain terms, and, “ the rule was then enlarged;” and that, at the time to which the cause was so continued as last mentioned, the parties again appeared with their counsel, the plaintiff submitted his account against the defendant, the parties introduced their respective proofs, a full hearing was held in the matter so submitted, and the said referee, at the then next term of the county court within and for the county of Franklin, which was held on the second Tuesday of April, A. D. 1859, returned his special report thereon in favor of the plaintiff. On the filing of said report in the county court, the defendant filed his objection to the acceptance of the same, but the report was accepted, and judgment was’ rendered thereon by the county court, in favor of the plaintiff against the defendant for the amount allowed by the referee, with the costs before the referee, and also the costs before the justice, amounting in the whole to fifty dollars and ninety-seven cents, together with the costs in the county court. The defendant" excepted to the decision of the county court in accepting the report and allowing costs.
One of the objections of the defendant to the acceptance of the report of the referee was that the referee did' not conform to the rule of reference as to the time, place and manner of making his report, and this objection being equivalent to a denial of the regularity or legality of the proceedings of the referee and also of the subsequent action of the county court, is in the nature of a plea to the jurisdiction assumed in this case, and ought therefore to be first considered. The statute (Comp. Stat., p. 237, sec. 65
The conclusions to which we have been led upon this objection render the consideration of other objections to the allowance of this report entirely unnecessary. The judgment of the county court accepting the report is reversed, and judgment is to be entered that the proceedings be dismissed, and that the defendant Houghton be allowed his costs in the county court and also in' this court;