Houghton v. Sowles

The opinion of the court was delivered by Taft, J. Houghton brought his petition against Sowles and wife for a partition of lands held in common. The case proceeded to final judgment in the County Court, partition was made, and the cause passed to this court at the January Term, 1883, when judgment of the County Court was affirmed. This proceeding is a motion to bring forward the case upon the docket of this court, and asking for an order upon the petitionees to pay their share of the costs, including the services and expenses of the commissioners, and in default of payment, that this court order a sale of the land to pay the costs, or so much as will be sufficient for that purpose. No order was made in the County Court allowing costs. We think that in partition cases under chapter 70, R. L., the order allowing costs including the services and expenses of the commissioners, should be made in the County Court; if the petitioner neglects to have such an order made in that court, it is too late for him to apply to this court for it. Had the County Court made [636] an order in respect to costs, and allowed them, this court could make an order to cari'y it into effect by ordering a sale of the land, as was decided in Strong v. Hobbs et al. 20 Vt. 192. That case as reported does not show that the order was made in the County Court but such was the fact, as shown by the docket entries, and as may be inferred from the form of the order made by the court; and we are not inclined to extend the power of this court any farther. Petition dismissed with costs.