| Vt. | Oct 15, 1888
The admission of the evidence relating to the-conduct of the defendant and the plaintiff’s wife prior to July 26, and after August 10, the dates named in the declaration,, was proper for the purpose for which it was received and considered by the referee. • It enabled him to see the circumstances under which the acts were committed, and how far the plaintiff’s-heart was lacerated thereby. Did the .defendant invade a household where loose morals prevailed, where affection between husband and wife had ceased. or never existed, where the husband offensively and indecently conducted with women other than his wife, where he suspected but was indifferent as to his wife’s conduct with the defendant, or was the reverse of all this true? Was the criminal act the result’of sudden temptation and impulse, or of design, deliberation, steady approaches ?’ Although the authorities are not very specific as to the proper elements of consideration on the question of damages in cases of this kind, we think they fully cover in principle the ruling in this-case.
The case of Shattuck v. Hammond, 46 Vt. 466" court="Vt." date_filed="1874-01-15" href="https://app.midpage.ai/document/shattuck-v-hammond-6579888?utm_source=webapp" opinion_id="6579888">46 Vt. 466, affords some-analogy, where it was held in a like action that the defendant-may show the plaintiff’s criminal connection with other women at any time after his marriage and before trial, in mitigation of damages. The decisions are not in point but the general principles are elucidated in the able opinion of Wheeler, J., in State v. Bridgman, 49 Vt. 202" court="Vt." date_filed="1876-10-15" href="https://app.midpage.ai/document/state-v-bridgman-6580554?utm_source=webapp" opinion_id="6580554">49 Vt. 202; and of Colt, J., in Thayer v. Thayer, 101 Mass. 111" court="Mass." date_filed="1869-01-15" href="https://app.midpage.ai/document/thayer-v-thayer-6415613?utm_source=webapp" opinion_id="6415613">101 Mass. 111.
The text in Green, on Evidence, Vol. 2, section 5’5, fully sustains the ruling in this case. See also the authorities there cited; and Vol. 1, ib. sec. 102, and cases cited in note 1.
At the March Term, 1887, judgment was rendered against the defendant on his failure to show cause for a continuance, and 'the case was ordered to be referred for the assessment of dami 'ages, but no referee was appointed, and the case was continued..
The defendant now claims that it is too late to move for a certified execution, and that it could be done only at the March Term, 1887, and this on the ground that the time-of granting the certificate is, by the statute, to be at the time of the judgment, sec. 1502, R. L.
“We think that the provision of the statute is to be construed, in a case standing as ■ this does, as referring to the time when the judgment is completed on the ascertainment of the damages. The judgment rendered at the March Term, 1887, only settled that the plaintiff was entitled to some damages. The defendant may still appear and contest the right of the plaintiff to a judgment for anything more than nominal damages. The case is analogous to those where judgment is rendered upon default or demurrer, in case of an open count, as in general assumpsit, where it is held that the action is still pending between the plaintiff and defendant until the measure of the plaintiff’s right is ascertained, either by his own election to take judgment for nominal damages, or by a proper ascertainment under the statute, sec. 1178 R. L., and the final judgment is in fact rendered. Sheldon v. Sheldon, 87 Vt. 152" court="Vt." date_filed="1913-10-13" href="https://app.midpage.ai/document/spencer-v-town-school-district-6586353?utm_source=webapp" opinion_id="6586353">87 Vt. 152; Webb v. Webb, 16 Vt. 636" court="Vt." date_filed="1844-03-15" href="https://app.midpage.ai/document/webb-v-webb-6572975?utm_source=webapp" opinion_id="6572975">16 Vt. 636. We are not now dealing with the question as to what evidence may be received in defense of claims beyond nominal damages after judgment, as in the case of Bank v. Dorset Marble Co., 58 Vt. 70" court="Vt." date_filed="1886-01-15" href="https://app.midpage.ai/document/third-national-bank-v-dorset-marble-co-6582665?utm_source=webapp" opinion_id="6582665">58 Vt. 70 ; and others in our reports. Here the County Court was asked to adjudge that the cause of action arose from the willful and malicious act or neglect of the defendant before the case was tried.
The motion may be filed at any term, but the proper time for hearing it is after the facts are before the court, upon which it must base its ruling.
So we think that the statute providing for a certified execution “ at the time of such judgment ” refers to the time of the final completion of the judgment; and that the denial of a
Our statutes provide that the Supreme Court may retain causés for advice or consultation after the final adjournment of the term and enter judgment therein in vacation, but there is no such provision as to County Courts. Yet a practice has long prevailed, in some counties more than others, of occasionally entering a cause at the final adjournment “with the court,” and entering judgment therein in vacation as of the term. As there is no authority for this in the statutes and as there is no County Court in session after the final adjournment, the validity of such a judgment must rest in the assent of the parties, which is regarded as implied from such a docket entry.
The defendant’s counsel do not now question the validity of this judgment on the ground that the cause was held after the term and the judgment entered in vacation as of the term, but they contend that the motion for a certified execution not having been made in term, could not properly be made, considered and determined after judgment was rendered in vacation. We think the point is well taken. No motion for the certificate was made before the final adjournment of the term and no agreement is claimed that it might be made after. We do not understand that the entry “ with the court ” has been regarded as importing anything more than that the case may be held for consideration and decision, as of the term, of matters heard at the term. Whether under our statutes and as our County Courts are constituted, a cause may be thus held, and as to what would be the effect of a stipulation for the hearing of a cause in vacation and the subsequent entry of a judgment as of the term, are questions not now before us. We only decide that the ruling on the motion for a certificate made under the circumstances shown was error.
The judgment in other respects is affirmed.