Opinion
Opinion filed October 6, 1936.
Reference to Docket Entries by Supreme Court — P.L. 3982, Proceedings for Commitment to State Hospital for Insane — Appeal to County Court — County Court Rule 5, Entry of Appearance — Notice to Adverse Party Unnecessary When in Open Court — Appearance Assumed to Have Been So Entered — Necessity of Dismissal of Appeal for Want of Jurisdiction — What Sufficient to Give County Court Jurisdiction — Effect of Failure to File Copy of Proceedings Appealed from — of Motion to Dismiss Filed out of Time — Disposition of Motion Not Matter of Discretion — Granting of Leave to File Copy of Proceedings Appealed from out of Time.
1. Supreme Court may refer to county court docket for information as to entry of appearances on appeal from probate court.
2. On appeal to county court from finding, judgment, and order of probate court under P.L. 3982 in proceedings for removal of insane and dangerous person to State hospital, where county court docket for succeeding term showed entry of appearance for appellee, and time therefor had not expired at opening of next stated term after taking of appeal, but no notice of appearance was given to adverse party as required by county court rule 5, held that notice was not necessary if appearance was entered in open court within time therefor, and that Supreme Court would assume that appearance was so entered, since clerk of court is presumed to have performed his duties.
3. In such appeal, want of jurisdiction of the subject matter, when discovered, necessitates a dismissal, regardless of when or how such fact comes to the court's attention, and county court cannot confer jurisdiction upon itself by allowing papers necessary to perfect the appeal to be filed out of time.
4. If an appeal from an inferior tribunal to the county court is seasonably claimed and allowed by the lower tribunal, and notice thereof is given to the adverse party as directed by such tribunal, the appellate court has jurisdiction over the subject matter, and failure seasonably to enter such appeal in that court is a defect that may be, and is, waived unless taken timely advantage of by a proper plea or motion.
5. On appeal to county court from finding, judgment, and order of probate court under P.L. 3982 in proceedings for removal of insane and dangerous person to State hospital, where all statutory requirements were strictly complied with except that certified copy of proceedings appealed from was not filed as required by statute, held that such failure to file did not affect the jurisdiction of the county court over the subject matter, that the defect was waived by failure of appellee seasonably to interpose motion to dismiss, and that appellant was entitled to have such motion, filed out of time, denied as of right.
6. On appeal from an inferior tribunal to county court, where the county court has jurisdiction of the subject matter, a motion to dismiss not seasonably interposed must be denied as of right, and its disposition is not a matter of discretion.
7. On appeal to county court from finding, judgment, and order of probate court under P.L. 3982 in proceedings for removal of insane and dangerous person to State hospital, where all statutory requirements were strictly complied with except that certified copy of proceedings appealed from was not filed as required, held that appellant's request for leave to file such copy, made when appellee unseasonably filed motion to dismiss for want thereof, should have been granted.
APPEAL to county court by one Jessie Carleton from finding, judgment, and order of probate court under the provisions of P.L. 3982 in proceedings initiated by selectmen for her removal to the State hospital as an insane and dangerous person. Appellee filed motion to dismiss the appeal and appellant then asked leave to file certified copy of proceedings appealed from. Heard at the November Term, 1935, Orange County, Sherman, J., presiding. Appellant's request was denied and appellee's motion was granted. The appellant excepted. The opinion states the case. Reversed and remanded.
John A. Gordon for the appellant.
Wilson, Carver, Davis Keyser for the appellee.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON and SHERBURNE, JJ.
May 1, 1935, the probate court within and for the probate district of Randolph, acting under the provisions of P.L. 3982, upon a petition of the selectmen of Williamstown, found and adjudged Jessie Carleton to be an insane and dangerous person and liable to be supported by the State, and issued an order for her removal to the Vermont State hospital for the insane at Waterbury, there to be supported by the State. From such finding, judgment and order said Carleton was allowed an appeal May 18, to the next stated term of Orange county court. May 30, she caused to be filed in the office of the clerk of said court a certified copy of her application for and allowance of appeal with evidence that notice had been given to the adverse party in accordance with the order of the probate court in compliance with P.L. 3986 and 3015, but did not file a certified copy of the record of the proceedings appealed from as therein required. During the November term of court, to wit, on November 12, appellee filed a motion to dismiss such appeal because of appellant's failure to file the latter document, whereupon she asked leave to file the same then. Her request was denied and appellee's motion was granted, to which rulings she excepted.
Appellant's first claim is that appellee did not enter an appearance within the time required by P.L. 3007; that she never received notice from the clerk that an appearance had been entered as required by County Court Rule 5, and that there was nothing to indicate an appearance prior to the filing of the motion to dismiss. The docket for the November term, to which we may refer for this information, Platt, Admr. v. Shields Conant, 96 Vt. 257, 264, 119 A. 520; Brown v. Vt. Mutual Fire Ins. Co., 92 Vt. 272, 102 A. 1042, shows that an appearance had been entered before such docket was printed, and the June term was in session several days before the time for entering an appearance expired. If an appearance was entered in open court during that time, the notice required by rule 5 was not necessary, and the contrary not appearing, it will be assumed that an appearance was so entered, since the clerk is presumed to have performed the duties imposed upon him. The exception is without merit.
The next question is whether the motion to dismiss was properly granted. It was, if the county court lacked jurisdiction of the subject matter because of appellant's failure to file a certified copy of the record of the proceedings appealed from, since want of jurisdiction over the subject matter, when discovered, necessitates a dismissal, regardless of when or how such fact comes to the court's attention. Fillmore, Admr. v. Morgan, Admx., 93 Vt. 491, 108 A. 840. Nor could the county court confer jurisdiction upon itself by allowing papers necessary to perfect the appeal to be filed out of time. Sanders v. Pierce, 68 Vt. 468, 35 A. 377. On the other hand, if the omission to file the papers referred to was ground for dilatory action, only, the motion to dismiss was not seasonably filed, county court rule 4; consequently the defect was waived and the motion should have been denied. Wade v. Wade's Admr. et al., 81 Vt. 275, 69 A. 826; Andrew v. Buck, 97 Vt. 454, 457, 124 A. 74. Among the cases holding that the court lacked jurisdiction because of the defect there complained of are Cole v. Walsh, 97 Vt. 256, 122 A. 664; Rinfret v. Tripp, 97 Vt. 404, 123 A. 430; Essex Storage Electric Company, Inc. v. Victory Lumber Co., 93 Vt. 437, 108 A. 426; Hotel Vermont Co. v. Cosgriff, 89 Vt. 173, 94 A. 496; Small v. Haskins, 29 Vt. 187. But it was held that the defect that appeared in Dependents of Vlahos v. Rutland Restaurant et al., 104 Vt. 188, 157 A. 832; Andrew v. Buck, 97 Vt. 454, 124 A. 74; Boright v. Williams, 87 Vt. 245, 88 A. 735; Wade v. Wade's Admr., supra; Mack v. Lewis, 67 Vt. 383, 31 A. 888, did not affect the court's jurisdiction. Of these, Essex Storage Electric Company, Inc. v. Victory Lumber Co., Dependents of Vlahos v. Rutland Restaurant et al., Andrew v. Buck, and Mack v. Lewis were appeals from an inferior tribunal to the county court. The effect of the holding in each is that if the appeal is seasonably claimed and allowed by the lower tribunal, and notice thereof is given to the adverse party as directed by such tribunal, the appellate court has jurisdiction over the subject matter, and failure seasonably to enter such appeal in that court is a defect that may be, and is, waived unless taken timely advantage of by a proper plea or motion. Other cases where the views and practice of this Court in regard to waiver and correction of irregularities in probate and other cases may be found are Francis v. Lathrope, 2 Tyler 372; Brown v. Brown, 66 Vt. 76, 28 A. 666; Whitcomb v. Davenport's Est., 63 Vt. 656, 22 A. 723; Carruth v. Tighe, 32 Vt. 626; Lynde v. Davenport, 57 Vt. 597; Thorp v. Thorp's Est., 75 Vt. 34, 52 A. 1051. Appellee claims that the provision of the statute appellant failed to comply with is mandatory and cites Dependents of Vlahos v. Rutland Restaurant, 105 Vt. 228, 164 A. 377, in support thereof. The court was there speaking of county court rule 7 (par. 1) which relates solely to appeals from the commissioner of industries and expressly provides that appellant shall file in the county court "at the time of docketing" such appeal "a certified copy of the proceedings appealed from together with proof that notice of such appeal has been given to the adverse party." It was not there claimed that appellant filed any of the required papers in county court within the time prescribed, or that the notice of the appeal was in fact given the adverse party. In the circumstances, the appeal was properly dismissed on all the authorities.
In the instant case all statutory requirements were strictly complied with except the one under consideration, and failure to comply with that, alone, did not affect the jurisdiction of the county court over the subject matter. Since this is so, appellee waived the defect by failing seasonably to interpose the motion to dismiss, and appellant was entitled to have such motion denied as of right. Murphy v. Punt, 107 Vt. 421, 424, 180 A. 886; Wade v. Wade's Admr. et al., supra, at page 280, and cases cited.
It is urged by appellee that it was discretionary with the county court whether it would grant or deny the motion to dismiss, and Rutland Burlington R.R. Co. v. Admr. of Wales, 24 Vt. 299, is cited as authority for such claim. The facts in that case appear to have called for a dismissal of the appeal for lack of jurisdiction of the county court, since none of the statutory requirements, even notice of the appeal to the adverse party, were complied with for nearly six months after the appeal was taken. But apparently that question was not raised. When, as here, however, the county court has jurisdiction of the subject matter, and the motion to dismiss must be denied of right because not seasonably interposed (see Murphy v. Punt, supra; Wade v. Wade's Admr. et al., supra), the disposition of the motion is not a matter of discretion. The motion should have been denied, and it logically follows that such amendment of the record as appellant desired to make should have been allowed.
Judgment reversed and cause remanded to the county court for further proceedings.