Prior v. Wilbur

The opinion of the court was delivered by MUNSON, J. It is evident that the record before us is insufficient to entitle the plaintiff in error to the relief sought. It cannot be seen from what appears of record that the action of the court below was improper. Every presumption is to be made in favor of the judgment that is not positively inconsistent with the record. Campbell v. Patterson, 7 Vt. 86. It certainly was within the discretion of the County Court, upon proper notice to the defendant, to permit the amendment and give 'judgment the first term. The record does not exclude the presumption that the defendant had notice of the plaintiff’s motion in that behalf. The statements of the writ, if sufficient in tenor, cannot be taken to supplement the record. Arthurton v. Durkee, 2 D. Chip. 20. The aggrieved party should have procured an amendment of the record below before seeking to avail himself of this remedy. But there is open to him another, and we think a more appropriate, method of procedure. It is [410] within the power of the County Court to order the case brought forward and the judgment stricken off, and upon proper motion and showing this action would doubtless be taken. * After argument and before judgment, the plaintiff in error asks leave to withdraw his writ. Leave to withdraw granted on payment of defendant's, costs, and record remitted.