24 Vt. 299 | Vt. | 1852
The opinion of the court was delivered by
The questions in this case arise upon a motion to dismiss. The proceedings upon which this application is made, is an appeal from the commissioners of claims on the estate of S. R. Wales. The appeal was taken on the 10th of October, 1850, to the county court to be held on the 4th Tuesday of April, 1851.
The Comp. Stat. p. 353, Sec. 21, 22, requires that the person appealing shall give notice of such appeal, and of the term to which it is taken, twelve’days before the session of the court, and shall also file, in the court to which the appeal is taken, a certified copy of the proceedings in the probate court, together with the proper evidence that notice of such appeal has been given to the adverse party, according to the order of that court. In relation to all these requirements of the act, the case shows great neglect on the part of the appellants. After the appeal was taken, and for the period of about six months, no notice was given in fact to the adverse party, of such appeal, or of tile term of the court to which it was taken, nor was a certified copy of the proceedings of the probate
These are specific requirements of the act, and on failure to comply therewith, the 25th section provides that the claim of the party appealing shall be forever barred, and costs taxed for the appellee.
If we should consider that the provisions of this act were directory merely, and that the county court could retain the case,‘and order notice to be given, (Woodward v. Spear, 10 Vt. R. 420,) still, we entertain no doubt that the county court could exercise a discretionary power over the case, and for such neglect, might order the case dismissed. And we can readily perceive, that in many cases the exercise of this power is necessary for the attainment of substantial justice between the parties. Otherwise creditors may by such neglect, for a long period, delay the settlement of an estate» to its permanent injury. And in view of sueh consequences, the court might properly say, that as the party appealing has not conformed to the requirements of the act, they will not lend the aid of their discretionary power in sustaining proceedings where such neglect is injuriously affectmg others. It is evident the party had no strict legal right to have the cause retained, and an order of notice made, for the statute in all its provisions had been neglected, and the case lay at the mercy and discretion of the court. To preserve their legal right, they should have conformed to the provisions of the act, — having lost their legal right, by their neglect, the court can exercise their discretion in retaining the case, or ordering it to be dismissed and refusing an order of notice. And if the court, in the exercise of their discretionary pow- . er, have refused to retain the casé, and have Ordered it dismissed, that decision must be conclusive between the parties, and cannot be reviewed by this court.
This was so ruled in the case of State Treasurer v. Raymond et al., 16 Vt. R. 364, whereon motion ¿case was dismissed from the county court, for the neglect of the administrator to enter his appearance as prosecutor, and it was held, that the dismissal was within the discretionary power of the court, and could not be reexamined by the Supreme court on exceptions. For this reason we think the judgment of the county court must be affirmed.
