Stowe v. Powell

The opinion of the court was delivered by Redeield, J. The defendant, failing to show sufficient grounds for a continuance, was forced by the court to submit to judgment for the plaintiff, without proof and without defence. The declaration is in tort, and the action is such that the court might grant a “ close jail certificate,” if the court “ from the consideration of the facts,” shall adjudge, <fec. The granting of a certificate, is a proceeding entirely independent, ai:d “ is no part of the principal judgment in the cause.” Barrett, J., in Spaulding v. Woodworth, 42 Vt. 570. “ In case of default, it would be proper for the county court to entertain such motion, and hear evidence to sustain it.” Same case. In case of default, the defendant voluntarily submits to judgment; in this case, ho is fpreed to submit, because his motion for continuance fails. It is not obvious that a certificate could be lawfully awarded in this case, without evidence, and refused in case of default. It would seem more reasonable to hold that a defendant who had suffered a default, had, by implication, confirmed the facts alleged in the declaration, than that one contesting such facts, and forced by the rules of court to waive his defence, had confirmed them as true ; and, even, tinged with malice. In Whiting v. Dow, 42 Vt. 264, the court say: “The question as to granting the certificate, is to be determined from the consideration of all the facts, as' disclosed on trial.” In Soule v. Austin, 35 Vt. 518, the court, Poland, Ch. J., says: “The [473] county court may grant a certificate, if the evidence shoivs” &c. The supreme court will not grant such certificate, where none was moved in the county court. Nichols v. Packard, 16 Vt. 147. Nor will the county court, on affirming a judgment of a justice, hear a motion for certificate, if none was allowed by the magistrate. We think that the awarding of the certificate in this case, without evidence, and against the protest of the defendant, was error. And the judgment of the county court granting a close jail execution, is reversed.