*1 Soucy Zeglen, Diane T. L. Jake’s Yamaha and Richard d/b/a Corporation Soucy Motors, T I Inc. and &
[471 224] 82-139 No. C.J., Hill, Underwood, Billings, Gibson, Peck and
Present: JJ. Opinion Filed December *2 Birming- Barry Fink & D. Polidor of Melvin Fink and J. ham, P.C., Ludlow, Plaintiffs-Appellants. for P.C., Springfield,
Parker, Ankuda, for Defendants- Lamb & Appellees. judgment ren-
Underwood, appeal adverse Plaintiffs an J. of Superior the defend- dered the Court favor Windsor delinquent Soucy Motors, Inc., counterclaim for ant on its tempo- seeking parte brought suit an ex rent. first Plaintiffs injunc- order, permanent rary restraining preliminary and wrongful alleged tion, damages, for “lock out” from an they occupying a claimed premises had under sub- the been Motors, Soucy Inc. The court defеndant lease from the restraining jurisdiction granted temporary of order. presiding judge (comprised of and the two as- the the court petition temporary re- judges) that heard the sistant validity order, however, straining of that order and challenged by stipulation and are now resolved below only аppeal subsequent judg- from a appeal. Plaintiffs this presiding judge ment, and one rendered Soucy Motors, Inc., defendant judge,1 on the counterclaim delinquent rent. arguments appeal. they two First, on this Plaintiffs advance failing trial court erred in to declare consider all surrounding general facts and circumstances re- phase was absent from 1 The the court second proceedings because of illness. lease, by they Soucy Motors, Inc., which claim defendant any obligation pay Second, they released them of rent. con- court, sitting equity, jurisdiction tend that the trial had no judge рarticipated to decide the case because one assistant findings, conclusions, with the judgment agree plaintiffs’ argument order. with second We trial; reverse and remand for a new therefore we do not concerning general reach the issue release. party challenged jurisdiction
Neither improperly trial court below. Plaintiffs raise issue of an constituted trial court before this Court for time. the first Although generally we will not entertain an issue which was below, question not raised of the “[t]he trial court be raised here for the time.” Harlacker first Clark, (1950). “[Q]b jections subject-matter litigаtion over the always timely.” Berry Arnoldware-Rogers, (Barney, J., (1968) on motion *3 reargument). for by requesting
Plaintiffs initiated this tempo action a rary restraining order; equitable this invoked the court’s jurisdiction. In re See Crescent Association, Inc., Beach 126 497, Vt. (1967). invoked, equity 236 A.2d 499 Once jurisdiction retains over the entire action complete to see that relief is administered. King, LaMantia 628, 634-35, v. 129 Vt. 741, (1971). 745 Davis Hodgdon, 49, See v. 133 Vt. 53, 669, 329 Soucy A.2d 672 Motors, When defendant Inc., delinquent rent, counterclaimed for the action was al ready equitable under the jurisdiction, court’s and this was not disturbed the defendant’s counterclaim.
In LaDuke, Pockette 625, v. (1981), we held that court, composed trial presid of the ing judge judges, and two assistant was without under 4 sought 2192 to hear injunctive a case that damages. money relief and Furthermore, we noted that: 2 provides: 4 219 V.S.A. § powers rights, All of a duties chancellor shall vest exclu-
sively presiding judges powers court and the 618 guaranteeing properly a responsibility that clearly entertaining particular suit
constituted court is judge. his re- presiding He cannot shift upon falls parties, attorneys or the assist- sponsibility their judges. ant 628, 219
Id. at A.2d at 1192. 432 Section presid- nature, one constituted with “[a] judge judges ing assistant is without and two sounding equity. Only hear a case court with 627, Id. аt power.” A.2d at such alone has Pochette, disposed and we from We 1192. are not to retreat holding today. reaffirm its post-Pockette rely decisions to
Defendants
number of
argument
jurisdiction.
support their
All involve
Farm,
Bishop
equity.
Swanson judges
cases
606,
indicated
A.2d 464
this Court
error,
judges
equity
but
that
Id. at
611-12,
it
A.2d аt
“harmless error.”
466.
labelled
pointed out
the source
The Court
that 4
219 was
V.S.A. §
error,
and warned the trial court
sure that
“to make
seeking
properly
especially
equitable
constituted
in cases
it is
612,
Virtually
same
relief.”
at
On again noted should be this was “[i]t Court observed an and the assistant not action should and can- Corp. State, therein.” participate Immediately after- *4 however, ward, the error to be harmless. the Court found months before Humiston Finally, and White Current two down, purported distinguish the Court handed to Pock- jurisdiction of the that were courts in and heretofore vested chancery shall vest court. District courts and powers a probate passing have the shall chancellor may upon come matters which before all civil them.
619 improper constitution ette limit it “to situations where Brower may result.” the court have affected eventual Transportation, A.2d Holmes reasoning, jurisdictional error becomes this Under only have affeсted “harmful” after this Court has found it to jurisdiction, and an notion of the results. This is untenable today. it we abandon together, Swanson, Humiston, White
Taken jurisdictional nature of 4 and Brower undisturbed leave Pochette, explained but find harmless V.S.A. 219 as § distinguishing jurisdiction by factually exception error to upon Pochette. Thе may that itself turn such idea very factual niceties is as novel as the notion of harmless reasoning jurisdiction. exception error such this Under scouring transcripts Court would face the illusive task of other records from below “influence” “affect” Only then would results. be affected. We can Swanson, Humistоn, adhere not to this course and overrule Current, and Brower they extent to the are inconsist ent with Pochette. legislature speak did equivocal terms in 219: “All rights, powers V.S.A. duties of chancellor § (emphasis
shall vest . .” . . added). Pockette best legislative implements this mandate. Suitor, Suitor converse situаtion is true as well. this Court reversed and remanded Superior an order of the Chittenden Court be judge proceeding cause contempt acted judges. without Under V.S.A. 112 this Court § observed “that judge, presiding judge, albeit the statutory did not constitute a . court. Because the . . statutory authority
was without cause, pur hear his ported order supra. Suitor, without basis law.” Just [was] past September, we reversed and remanded a case in improperly which court was constituted under 4 V.S.A. 111(a). Vermont Union School District No. 21 v. H. P. § Cummings Co., Construction held, “Compliance we
There 111(a) with is a jurisdictional prerequisite to the cаse . . . .” *5 Although that added). (emphasis at 746 at judges were
case involved a situation which noted they present, the Court when should have been absent improperly court constituted that “orders from an issued added). they (emphasis void, since lack basis in law.” Id. jurisdiction power of a court prerequisite to the is Since case, hear a there can be no harmless error. to of Analogous support jurisdictional § mandate for the 111(a): gained provisions of 4 from the Y.S.A. § be before equitable and claims which relief claims triable were the of section 219 this title effective date by pre- the only by chancery, trial shall be the court added.) siding (Emphasis alone. together pertinent are read the statutes and case law When the (§ Pockette), can be doubt that 111 and there little § heard, Legislature equitable to be intended “claims for relief” considered, This decided the alone. and authority exception supe the оf no harmless error admits jurisdiction. equitable rior court’s jurisdiction case, In the instant the court’s clearly temporary restraining invoked: a in order —an Beach, junction remedy. a fundamental Crescent —is supra. upset equit A counterclaim will not the court’s hearing restraining jurisdiction. able The on the оrder and hearing counterclaim, although delinquent rent on dates, part held different one action under the equitable jurisdiction. The court’s of even one assist judge during error, latter ant reversible since court, constituted, had no as to hear the case. and remanded. Reversed dissenting.
Gibson, I J., mаjority must dissent from the opinion. previously issue has been resolved Court, deviating from the established case law majority opening a Pandora’s box that will cause litigants, years myriad bench and bar troubles to come. controversy revolves around 4 which provides: rights, powers
All of a chancellor shall vest and duties presiding judges powers that were the courts chancery shall vest heretofore vested the courts of probate judges shall have District and court. powers passing upon all civil mat- of a chancellor in *6 may ters which come before them. majority rely 625, LaDuke, on 432 Pockette v. Vt. 139 (1981),
A.2d 1191
court con
which holds that “[a]
judges
presiding judge
stituted with one
and two assistant
sounding
equity.”
is without
to hear a case
in
627,
majority opin
at
432 A.2d
at 1192. Not mentioned in
subsequent
jurisdic
ion
ais
also
case that was
reversed
grounds
judges
tional
because
in an
two assistant
sat
action
specific performance
making
participated
in the
findings
Beaulieu,
of fact and
law.
v.
conclusions of
Maskell
75,
140 Vt.
There is no but that all author- court ity presiding matters vests in the judge. judges decision-making The assistant no have or power other majority Court, such matters. The of this however, privilege have cоnfused listening power the evidence with to render a decision. long cases, including subsequent
In a
line
four
decisions
consistently
Pockette,
juris
has
to find
this Court
refused
joined
defect where the
been
dictional
has
judges
assistant
unanimous
of an
decision
Bishop
Farm,
v.
Inc.,
606,
matter. Swanson
140 Vt.
302,
(1982);
Humiston,
A.2d 464
Braun
Vt.
443
v.
140
437
(1981);
Corp.
290,
Stаte,
Current
v.
140
A.2d 1388
White
Vt.
;
(1981)
Transportation,
Brower
A.2d 393
Holmes
438
v.
114,
(1981);
140 Vt.
Travelers
Co. v.
559,
Blanchard,
; Nugent
(1981)
Vt.
A.2d 296
v.
Shamhor,
194,
Kelly
(1980) ;
Rhodes,
Nor requested. specific performance V.R.C.P. where presented grounds for 83(1). But we no rever with distinguishable clearly Pockette v. sal. This case frоm LaDuke, where judges, sitting improperly, prevailed over the judge. authority that case should be improper limited to situations where constitution of affected eventual result. See Maskell have *7 Beaulieu, 75, (1981). No such Vt. here, only ruling influence is indicated where as to summary judgment is involved. position аnalogous has
The Court
taken a similar
appeals
4461(a) provides:
tax
where
area of
32 V.S.A. §
appeal to
by
the
court shall be heard
the
presiding judge, sitting
jury.
alone and without
language
comparable to
111(a),
is
that of 4
This
V.S.A. §
,
which states that
claims
relief . . .
trial
“[i]n
sitting
by
the
shall be
alone.”
apрeal
the tax
case of Monti v. Town Northfield,
of
pres-
Court dealt with
the
j udges
following
in
of assistant
the
ence
terms:
is,
course,
of
procedure
It
true that
hearing
the
property
appeals
tax
established
(a)
32 V.S.A.
§
requires
the matter be
“heard
the
jury.”
judge,
alone and without a
Further, 32
4467, dealing with the
in
manner
which appeals
§
V.S.A.
conducted,
determining body
are to be
refers to the
as
chancery.”
“the
Historically, prior
pas-
court of
to the
sage
vesting
of
rights,
pow-
4 V.S.A. 219
the
duties
§
ers
presiding judges
supe-
of a
chancellor
courts, jurisdiction
rior
chan-
conferred
cery
single
was deemed vested
in a
chancellor.
Bragg,
Turner
erroneous, defendant has failed to
how
show
such error
any way.
obliged
has harmed it in
The defendant
alleged
establish that
prejudicial
error was
and in-
jured
rights. (Citations
its
omitted.)
Id. at
Equity historically courts authority have had to use ad- visory juries to and, upon hear receipt issues оf fact their verdicts, accept disregard either or and override them. Soule, Adams (1860); 27 Am. Jur. 2d Equity procedure 238-244. §§ This has been carried forward into practice, modern rules of currently and is embodied 39(c). V.R.C.P.
Further, since
1878 chancellor has had discretion to refer
special
a cause to a
hearing.
master for
No. 17 of the Acts of
special master,
1878. The
after
the evidence out of the
court,
report
would submit his
to the chan-
procedure
cellor for decision. This
has likewise been carried
present
forward and
included
civil rules. V.R.C.P. 53.
*8
light
precedents
of this Court
and
historical
equitable practice
holding hearings
advisory juries
before
special masters,
and
I fail to see how
the mere
at the trial of an
action can consti-
per
tute error
showing
se. Unless there is a
preju-
of harm or
(see Nugent
Shambor, supra,
dice
v.
step judicial strides in mod- for a that is opened. ernizing procedures. box been its Pandora’s has appear. contained will soon troubles therein say joins that Justice Hill I am authorized to this dissent.