Nixon v. Phelps

The opinion of the court was delivered, at the circuit session in June, by Redfield, Ch. J. We shall first consider the exceptions taken upon the jury trial. It is claimed these were not filed with the clerk in season to come into this court upon motion, by way of transfer merely. The exceptions were not, in fact, lodged with the clerk until more than thirty days after the rising of the court, but the clerk was directed to file them as of a date within the thirty days, which he did at first. But subsequently, at the suggestion of counsel that such entry was false and injurious to his client, the clerk made a kind of double entry of the date, thus, ,5, one date being within and one without the thirty days. It is agreed the case should now be heard the same as if a formal application for mandamus were before us, and all such corrections had been made as the court upon the state of facts would require to be made. And it seems to us that if the exceptions were tó be regarded as showing a filing within the thirty days the court would entertain them, unless some proceedings were taken to alter that entry. But in the present case, such proceedings being regarded as now pending, we are to say what the facts [203] shown will justify. And it seems to us very obvious that as the entry is not according to fact, and is upon a point vital to the validity of the exceptions in this form of hearing, the court should require the entry to be made according to the fact. By this we are not to be understood as holding that in all cases of such entries nunc pro time, we should require the entry to be made strictly according to fact. That mode of making entries to preserve the rights of parties is of immemorial use in courts of record, and one we do not by any means intend to discountenance. But we think it has no just application to a case like the present. Here the statute is explicit that the exceptions, when not filed with the clerk within the thirty days, shall be erased from the docket and the ease stand as if no exceptions had been filed, so far as hearing upon the exceptions is concerned. And we held in Small v. Haskins, at the regular term in this county (ante p. 187), that unless so filed the case cannot be heard in this court upon the exceptions. Now, to allow the statute to be irretrievably evaded by a mere entry of the clerk of a date anterior to the true time of the actual filing would certainly be a most remarkable evasion of the statute to receive the sanction of the court of last resort in the matter. We think such an opinion is not to be entertained in a case like the present. Here was no fraud of the opposite party which led to the failure to file the exceptions in time. It was at most a mere accident, which cannot be remedied in this mode. If the party had agreed that the entry should be so made, or possibly if his conduct or misconduct had led to the delay, and this mode of curing the defect had been resorted to, very likely the court might not compel the correction. But the case is clear of all such apology for the false entry. And we think reason and policy both require that the clerk, or the court should be directed to make the true entry, which will show the filing of the exceptions after the expiration of the thirty days. In this view of the case, Small v. Haskins, decided at the regular term in this county, is an express authority for dismissing these exceptions, and they are accordingly dismissed from the docket of this court. In regard to the judgment on the report of auditors, it was no doubt quite proper that the county court should render final judg [204] ment for the ultimate balance, but their decision is revisable so far as the exceptions to the report is concerned. But we do not think these exceptions will uphold a distinct bill of exceptions upon another branch of the case. This is totally different from the practice which has obtained of allowing the judge to revise and correct the exceptions. Here the exceptions allowed upon the report did not order a stay of execution, and had no connection whatever with the other bill of exceptions. In that respect they were as distinct as two different causes. In regard to the report of the auditors it seems to us the defendants ought not to be allowed to charge for services which through an omission of, or mistake of theirs become of no avail to their client. And although it was shown, as stated in argument, that if this mistake had not occurred the plaintiff could not still have enforced his judgment in the mode attempted, yet he would at least have been in a position to try the case, which he might certainly regard as an important advantage. We think therefore that the recovery should be restricted to the smallest sum reported. We do not intend to intimate here, by any means, that we think the defendants liable beyond the loss of their fees. The cases read at the bar would seem to indicate that in a doubtful matter of law the attorney is not liable to his client for damages arising from mere misjudgment. And from the testimony in this case the court are possibly bound to consider that this question was doubtful, or was so considered in some parts of the state, which seems somewhat unaccountable to me. That rule in England has obtained, in cases of decisions, different ways by different courts of concurrent jurisdiction, and whether the rule will apply to a jurisdiction like our own it is not necessary to here consider. But the dicta referred to in our own reports, (2 Aik. 299; 12 Vt. 599; 14 Vt. 40,) and the case in Connecticut, (Burrows v. Stoddard, 3 Conn. 455,) do not seem to have any proper bearing upon that question. They have reference to demands either upon tortfeasors or bailees and not to delivering the execution to an officer to charge the propertg, which has always been held, so far as I know or can learn, indispensable to entitle the officer to recover for the benefit of the creditor. If nothing is done to charge the [205] property in the officers hands, lie is released, and, being released, be cannot recover (of one who tortiously took tbe property from Kim) for tbe benefit of the creditor and not for the benefit of the debtor, if the property was taken on other debts of such debtor. Exceptions as to jury trial dismissed. Judgment reversed on report, and judgment for the defendant for smallest sum reported. The petition for new trial founded upon errors of law in the county court, it has often been held, cannot be entertained. The only proper mode to review such questions is to have them placed upon the record in such form as to come here for revision either upon the exceptions or writ ■ of error. Petition dismissed without costs.