42 Vt. 570 | Vt. | 1870
This case was appealed by the defendant from a justice’s court to the county court. In the justice’s court the plaintiff made a motion for a close jail certificate. Pending that motion, and without its being decided, the appeal was applied for, and granted. The defendant failing to enter the appeal, the plaintiff carried the case to the county court by a complaint for affirmance, pursuant to section 31, chapter 30 of the General Statutes, and the judgment was affirmed. In the county court the plaintiff renewed the motion for a close jail certificate. The defendant appeared and resisted said motion. Evidence was introduced to sustain said motion, and the same was granted, and a close jail execution was awarded. To this the defendant excepted, and upon this exception the case is now before this court.
The court are of opinion that, as this mode of proceeding, in case of the failure of the appellant to enter his appeal in the county court, is specifically provided by that section of the statute, the county court have no vocation or authority in case of a proceeding on complaint for affirmance, beyond what is specifically conferred by that provision; and that, in terms, is that the county court “ shall affirm such judgment, adding to the damages interest at the rate of twelve per cent,” etc. As the justice rendered no judgment upon that motion for a close jail execution, of course there was no judgment in that respect that could be the subject of affirmance. The authority of the court being exhausted when the judgment rendered by the justice was affirmed, the proceeding upon the motion was without authority, and therefore awarding-such execution was erroneous. Individually, I should have no difficulty in holding that the provisions of that section of the statute do not operate to preclude the county court, in such case, from entertaining and deciding such motion, as was done in this case. The only provision authorizing the awarding of such an execution, in an action founded on tort, is in section 23 of chapter 121 of the General Statutes. The judgment awarding such an execution is no part of the principal judgment in the cause. It is independent of, and collateral to, the principal judgment. It is only required that it shall have been “ adjudged by the court, at the time of rendering such
But the judgment of the county court granting a close jail execution is reversed.