75 Vt. 421 | Vt. | 1903
The action is debt to recover a penalty under V. S. 4800, which provides that, if a ram is found at large out of the enclosure and possession of its owner or keeper between the 1st day of August and the 1st day of December, without being marked as provided in V. S’. 4799, the owner or keeper shall forfeit to- the person taking and securing it five dollars. V. S. 4799 provides that the owner or keeper of a ram shall, on or before the first day of August in each year, place on its body, in durable and legible characters, the initials of his name. It appearing that the only mark on the ram in question was the letter “E,” and that its owner’s name was Thomas H. Elliott, the Court instructed the jury that this was not a compliance with the statute. In this there was no error. V. S. 4797 provides that rams shall not be allowed to. go. at large between the first day of August and the first day of December, and subjects the owner or keeper to liability for damages sustained in consequence of his ram. going at large during such time; and V. S.
After verdict, the defendant moved in arrest of judgment, and in support of his motion, relied upon the following facts: At the justice trial the defendant entered a plea of not guilty, and a jury was partly empaneled, when the plaintiff refused to proceed further with the trial, and directed the justice to enter judgment for the defendant to recover his costs, and asked for and was allowed an appeal. The defendant insists that, while the record shows a judgment in formi upon the merits, it was in fact a non-suit. This contention is not sustained. By V. S. 1286, a justice is authorized to enter a judgment on non-suit only when the plaintiff does not appear within two hours from the time fixed in the writ for trial, or within two hours from the time fixed for trial by a continuance. When a party plaintiff seasonably appears in a Justice Court, and does not withdraw his appearance, a judgment of non-suit cannot be
The view we have thus taken of what was said and done at the justice trial is sustained by the reasoning and holding of this Court in State v. Little, 42 Vt. 430. In that case it appeared that the respondent entered a plea of guilty in the Justice Court, and claimed and was allowed an appeal. The statute then, as now, prohibited the taking or allowance of an appeal in criminal causes when the respondent pleaded guilty, but the Court held that the appeal was properly allowed. Barrett, J., in delivering the opinion of the Court, said: “In civil causes it is every day practice for the one party or the other to ‘give judgment and appeal as the stereotyped phrase is, without aniy hearing or pleadings, and yet I think it never occurred to any one that a party thus yielding to the claim of the other side, and having a judgment rendered against him to that
Judgment affirmed.