Tudor v. Kennett

88 Vt. 291 | Vt. | 1914

Watson, J.

This case was heard in the court below on demurrer to the bill, as amended, the demurrer was overruled, the bill adjudged sufficient, and a decree rendered for the orator according to the prayer of the bill. From this decree, defendants appealed. At the hearing in Supreme Court, the defendants asked in their brief, in the event of an affirmance of the decree, that the cause be remanded with leave to the defendants to plead or answer. The orator, in his brief, insisted that the defendants, having elected to proceed under rule sixteen instead of under rule fourteen, of the rules of the court of chancery, had waived their right to answer, and that, if the decree be affirmed, the bill should be taken as confessed, the defendants ordered to account, ?md the cause remanded for that purpose alone. The ease was disposed of by the Supreme Court as follows: “Decree affirmed and cause remanded.”' On such remand to the court of chancery, the orator moved that a time and place be fixed for an accounting upon the final decree of that court, as affirmed by the Supreme Court, and as prayed for in the bill. The defendants moved for leave to file their answer. The two motions being heard together,. the chancellor made an order granting defendants’ motion, the orator’s motion for an accounting to lie until further order of court. From this order, the orator filed his motion for an appeal, and the case was heard in this Court.

It is urged by the orator that under the mandate from the Supreme Court, the court of chancery could proceed only by way of entering the decree as affirmed, and ordering an accounting; and that it had no power to grant leave to the defendants to file their answer. It is said by defendants that the order from which the orator undertook to appeal, is merely interlocutory and from it no appeal lies.

In affirming the decree and remanding the case, this Court said nothing concerning defendants’ request for leave to plead or answer. The disposition of the case was not different in form or substance from what it would have been, had no such re-' quest been made. . It follows 'that the order made did not necessarily involve a ruling upon the request, and whether in fact that question was determined does not appear to that degree of certainty necessary to constitute an estoppel. Gray v. Pingry, 17 Vt. 419, 44 Am. Dec. 343; Aiken v. Peck, 22 Vt. 255; Tarbell v. Tarbell, 57 Vt. 492; Priest v. Foster, 69 Vt. 417, 38 Atl. 78. The case standing in this way on remand it was by statute within the power of the court of chancery or a chancellor to permit the defendants to file their answer. P. S. 1317. And the order granting such permit was interlocutory in nature, from which no appeal lies. The case is therefore not in this Court. Abbott v. Sanders, 83 Vt. 165, 74 Atl. 1058.

Appeal dismissed.