| Vt. | May 24, 1924
The cause was tried by court at the June Term, 1923. Judgment was entered for the plaintiff August 27, 1923, and exceptions by the defendants were noted on the docket. A bill of exceptions signed by the presiding judge was forwarded to the clerk of Windsor County on September 23, *21 1923, for filing. It was received and filed by the clerk on the same day, and a minute of the filing was made on the docket of the county court. The entry fee in the Supreme Court was not sent with the exceptions and was not paid until after the time for filing exceptions in the cause had expired. The clerk did not transfer the cause to his docket as clerk of the Supreme Court for Windsor County, and has treated it as not in this Court. Pursuant to our order, the clerk has transmitted the files and docket entries in the case to the clerk of the general term. It appears from a statement accompanying such transmission that it is the clerk's practice to minute the filing of a bill of exceptions on the docket of the county court, and, when not accompanied with the filing fee, to treat the cause as remaining in the county court until the entry fee is paid. In the circumstances the clerk was of the opinion that the cause remained in the county court, and accordingly had not certified the cause to the clerk of the general term. He holds the entry fee and the fee tendered by the plaintiff for an execution pending the determination of the question.
The cause is before us on plaintiff's motion to dismiss the exceptions on the grounds, in substance, that they were not seasonably filed, and that the cause is not properly in this Court, the filing fee not having been seasonably paid. The plaintiff relies upon G.L. 7405, which provides among the fees required to be paid to the clerk of the court for the benefit of the State, a fee of three dollars for each action entered in the Supreme Court to be paid before the entry of the cause. It is argued that the filing of the exceptions without the prepayment of the entry fee was ineffectual to transfer the cause to this Court. Unless otherwise ordered, the filing of the bill of exceptions signed by the presiding judge in an action at law, if seasonably done, like the filing of a motion for an appeal in an action in chancery, automatically passes the cause to the Supreme Court of the county within which the cause is pending. The transfer is not dependant upon the action of the clerk in making or withholding the docket entries. It is the filing of the exceptions and not the making of docket entries that works the transfer. G.L. 2258. LaFountaine v. Wilder,
Hotel Vermont Co. v. Moore's Estate,
Motion denied.