Part 1. General Provisions

Chapter 1. Rules of Court

§ 1. Rules of pleading, practice, and procedure; forms.

The Supreme Court is empowered to prescribe and amend from time to time general rules with respect to pleadings, practice, evidence, procedure, and forms for all actions and proceedings in all courts of this State. The rules thus prescribed or amended shall not abridge, enlarge, or modify any substantive rights of any person provided by law. The rules when initially prescribed or any amendments thereto, including any repeal, modification, or addition, shall take effect on the date provided by the Supreme Court in its order of promulgation, unless objected to by the Legislative Committee on Judicial Rules as provided by this chapter. If objection is made by the Legislative Committee on Judicial Rules, the initially prescribed rules in question shall not take effect until they have been reported to the General Assembly by the Chief Justice of the Supreme Court at any regular, adjourned, or special session thereof, and until after the expiration of 45 legislative days of that session, including the date of the filing of the report. The General Assembly may repeal, revise, or modify any rule or amendment thereto, and its action shall not be abridged, enlarged, or modified by subsequent rule.

HISTORY: Amended 1967, No. 311 (Adj. Sess.), § 1, eff. March 22, 1968; 1969, No. 119 , § 1, eff. April 22, 1969; 1973, No. 118 , § 2, eff. Oct. 1, 1973; 1977, No. 254 (Adj. Sess.), § 2, eff. April 19, 1978; 1981, No. 231 (Adj. Sess.), § 2; 2018, No. 8 (Sp. Sess.), § 2, eff. June 28, 2018.

History

Source.

1949, No. 56 . V.S. 1947, § 1626. P.L. § 1587. G.L. § 1804. 1917, No. 254 , § 1768. 1915, No. 90 , § 10.

Amendments

—2018 (Sp. Sess.) Substituted “Legislative” for “Joint” preceding “Committee on Judicial” in the third and fourth sentences.

—1981 (Adj. Sess.). Section amended generally.

—1977 (Adj. Sess.). Added provisions that included an adjourned session of the legislature as a time for rules to be reported to the General Assembly by the Chief Justice and amended last sentence pertaining to General Assembly action on rule or amendment.

—1973. Provided for amendments of rules to take effect on Supreme Court order.

—1969. Section amended generally.

—1967 (Adj. Sess.). Amended section generally to authorize Supreme Court to formulate rules, etc. for all courts in the state.

1981 (Adj. Sess.) amendment. 1981, No. 231 (Adj. Sess.), § 3, provided: “This act [which amended this section and added sections 2-4 of this title] shall not apply to rules relating to Vermont Bar Examinations held prior to January 1, 1983, nor to any temporary rule prescribed by the Supreme Court to deal with an emergency.”

Changes in terminology. 1973, No. 118 , § 24, provided:

“(a) In any action or proceeding brought or conducted in accordance with rules of practice and procedure in criminal cases promulgated or amended by the supreme court under the authority of section 1 of Title 12, the terminology of any applicable statute, where inconsistent with that in such rules or inappropriate under such rules, shall be taken to mean the device or procedure proper under such rules.

“(b) The statutory revision commission is hereby empowered, as part of its continuing revision of the Vermont Statutes Annotated, to make all changes necessary to conform the terminology of the statutes to the terminology of the rules.”

CROSS REFERENCES

Provisions relating to juvenile court, see 33 V.S.A. chs. 51 and 52.

Rules of court, see chs. 1 and 215 of this title and Rules Volume to V.S.A.

ANNOTATIONS

Applicability.

Because the statute regarding contempt in Superior Court was merely a procedural prerequisite to the institution of contempt proceedings, the prohibition against court rules imposing substantive changes of the law was inapplicable here. Welch v. Welch, 2013 VT 20, 193 Vt. 385, 67 A.3d 956, 2013 Vt. LEXIS 15 (2013).

Cited.

Cited in State v. Corliss, 145 Vt. 169, 484 A.2d 924, 1984 Vt. LEXIS 563 (1984); Roy's Orthopedic, Inc. v. Lavigne, 145 Vt. 324, 487 A.2d 173, 1985 Vt. LEXIS 288 (1985); State v. Hart, 149 Vt. 104, 539 A.2d 551, 1987 Vt. LEXIS 590 (1987).

Law Reviews —

Regulation of the practice of law, practice and procedure, and court administration in Vermont, see 8 Vt. L. Rev. 211 (1983).

§ 2. Definitions.

As used in sections 3 and 4 of this chapter:

  1. “Adopting authority” means the Chief Justice of the Supreme Court or the Chief Superior Judge, where appropriate.
  2. “Court” means the Supreme Court, except in those instances where the statutes permit rules to be adopted by the Chief Superior Judge, in which case, the word “court” means the Chief Superior Judge.
  3. “Rule” means a statement of general applicability that implements, interprets, or prescribes law or policy.  It includes judicial or administrative orders such as those issued under sections 31 and 37 of the Constitution of the State of Vermont and all substantive or procedural requirements of a court, which affect one or more persons who are not employees of the court, which are used by the court in the discharge of its duties.  It shall not include judicial orders or opinions issued in the resolution of a case or controversy.

HISTORY: Added 1981, No. 231 (Adj. Sess.), § 1; amended 2018, No. 8 (Sp. Sess.), § 3, eff. June 28, 2018.

History

Amendments

—2018 (Sp. Sess.) Substituted “Chief Superior Judge” for “administrative judge” in subdiv. (1) and in two places in subdiv. (2).

ANNOTATIONS

County courts.

Rule to county courts, made by superior judges under statute, has force of law, and while it stands must be applied to all cases that come within it, regardless of any rule of practice adopted by bar of particular county. Davis v. Dunn, 90 Vt. 253, 98 A. 81, 1916 Vt. LEXIS 270 (1916).

Municipal courts.

General rule that objections or exceptions to instructions shall be made at the conclusion of charge and before case is finally given to jury applies to municipal courts in absence of specific municipal court rule to contrary. State v. Jacques, 121 Vt. 129, 149 A.2d 358, 1959 Vt. LEXIS 98 (1959).

Probate.

Rules of probate court adopted under authority of statute have force of law and are to be judicially noticed. In re Estate of Moody, 115 Vt. 1, 49 A.2d 562, 1946 Vt. LEXIS 71 (1946), cert. denied, 331 U.S. 814, 67 S. Ct. 1201, 91 L. Ed. 1833, 1947 U.S. LEXIS 2388 (1947).

Supreme Court.

Rules of Supreme Court have force of law, and although Court can alter or abrogate such rules, yet while they stand they must be enforced as to all cases within their scope. Taft v. Taft, 82 Vt. 64, 71 A. 831 (1909), same case 80 Vt. 256, 67 A. 703.

§ 3. Legislative Committee on Judicial Rules.

  1. There is created a joint legislative committee to be known as the Legislative Committee on Judicial Rules.  The Legislative Committee on Judicial Rules shall be composed of eight members of the General Assembly to be appointed for two-year terms ending on February 1 of odd-numbered years as follows: four members of the House of Representatives to be appointed by the Speaker of the House, and four members of the Senate to be appointed by the Committee on Committees.  The Committee shall elect a chair and a vice chair from among its members.
  2. The Committee shall meet as necessary for the prompt discharge of its duties and may use the staff and services of the Office of Legislative Counsel and the Office of Legislative Operations. The Committee shall adopt rules to govern its operation and organization. A quorum of the Committee shall consist of five members. For attendance at a meeting when the General Assembly is not in session, members of the Legislative Committee on Judicial Rules shall be entitled to the same per diem compensation and reimbursement for necessary expenses as provided members of standing committees under 2 V.S.A. § 23 .
  3. The Legislative Committee on Judicial Rules may hold public hearings on a proposed or previously adopted rule on its own initiative.  The Committee shall give public notice of any hearing at least 10 days in advance and shall notify the Court.  Any public hearing shall be scheduled at a time and place chosen to afford opportunity for affected persons to present their views.
  4. In addition to its powers under section 4 of this title concerning rules, the Committee may, in a similar manner, conduct public hearings, object, and notify the Court of objections concerning existing rules. A rule reviewed under this subsection shall remain in effect until amended or repealed.
  5. Rules or amendments thereto promulgated by the Supreme Court, including any repeal, modification, or addition to existing rules, shall be submitted to the Legislative Committee on Judicial Rules at least 60 days prior to their effective date.

HISTORY: Added 1981, No. 231 (Adj. Sess.), § 1; amended 1983, No. 14 , eff. March 28, 1983; 1983, No. 88 , § 14, eff. July 3, 1983; 1983, No. 189 (Adj. Sess.); 2003, No. 2 , § 1, eff. Feb. 21, 2003; 2019, No. 144 (Adj. Sess.), § 26.

History

Amendments

—2019 (Adj. Sess.). Subsec. (b): Substituted “Office of Legislative Counsel and the Office of Legislative Operations” for “Legislative Council” in the first sentence; and substituted “23” for “406” in the last sentence.

—2003. Subsec. (a): Substituted “four” for “the chairman of the house judiciary committee and three” and “the chairman of the senate judiciary committee and three”, “chair” for “chairman” and “vice chair” for “vice chairman”.

—1983 (Adj. Sess.). Subsec. (e): Substituted “60” for “30” preceding “days prior to” and “their effective date” for “the date of promulgation” thereafter.

—1983. Act No. 14 made the following changes:

Subsec. (a): Substituted “eight” for “six” preceding “members” and inserted “the chairman of the house judiciary committee and” following “follows:” and “and the chairman of the senate judiciary committee” following “speaker of the house” in the second sentence.

Subsec. (b): Substituted “five” for “four” preceding “members” in the third sentence.

Act No. 88 made the following change:

Subsec. (b): Substituted “of standing committees under section 406 of Title 2” for “for attendance at sessions of the general assembly” following “provided members” in the fourth sentence.

ANNOTATIONS

Submission of Rules to Committee.

Statute concerning the Legislative Committee on Judicial Rules imposes no requirement that the court create a public record of submission to the committee, let alone invalidity of the rules as a consequence for the failure to do so; thus, there was no merit to a bar applicant’s argument that the 2019 rules governing admission to the bar were without force because the applicant found no record that they were either sent to the committee or reviewed by that committee. Had it wished, the legislature could have utilized the same language it used in the section of the statute requiring the Committee on Judicial Rules “give public notice” of any public hearing on a court rule. In re Grundstein, 2020 VT 102, 213 Vt. 528, 251 A.3d 30, 2020 Vt. LEXIS 115 (2020), cert. denied, — U.S. —, 141 S. Ct. 2631, 209 L. Ed. 2d 756, 2021 U.S. LEXIS 2378 (2021).

Law Reviews —

Regulation of the practice of law, practice and procedure, and court administration in Vermont, see 8 Vt. L. Rev. 211 (1983).

§ 4. Review by legislative committee.

  1. The Legislative Committee on Judicial Rules, by majority vote of the entire Committee, may object to proposed rules or amendments and recommend that the Court amend or withdraw the proposal.  The Court shall be notified promptly of the objections.  The Court may respond in writing to the Committee.  After receipt of a response, the Committee may withdraw or modify its objections.
  2. The Committee shall report on each proposal with the Committee’s recommendations, annually to the General Assembly on or before January 10.

HISTORY: Added 1981, No. 231 (Adj. Sess.), § 1.

Law Reviews —

Regulation of the practice of law, practice and procedure, and court administration in Vermont, see 8 Vt. L. Rev. 211 (1983).

§ 5. Dissemination of electronic case records.

  1. The Court shall not permit public access via the Internet to criminal, family, or probate case records. The Court may permit criminal justice agencies, as defined in 20 V.S.A. § 2056a , Internet access to criminal case records for criminal justice purposes, as defined in 20 V.S.A. § 2056a .
  2. This section shall not be construed to prohibit the Court from providing electronic access to:
    1. court schedules of the Superior Court, or opinions of the Criminal Division of the Superior Court;
    2. State agencies in accordance with data dissemination contracts entered into under Rule 6 of the Vermont Rules of Electronic Access to Court Records; or
    3. decisions, recordings of oral arguments, briefs, and printed cases of the Supreme Court.

HISTORY: Added 2007, No. 165 (Adj. Sess.), § 1; amended 2009, No. 154 (Adj. Sess.), § 65; 2013, No. 67 , § 9; 2019, No. 40 , § 1.

History

References in text.

The reference to Rule 6 of the Vermont Rules of Electronic Access Court Records is incorrect. The reference should be to Rule 6 of the Vermont Rules Governing Dissemination of Electronic Case Records.

Amendments

—2019. Subsec. (a): Deleted “or” following “to criminal” and inserted “, or probate” in the first sentence.

—2013. Added subdiv. (b)(3).

—2009 (Adj. Sess.) Subsec. (a): Inserted “or family” preceding “case records” and deleted “or family court case records” thereafter in the first sentence.

Subdiv. (b)(1): Substituted “superior” for “district or family” following “schedules of the” and “criminal division of the superior” for “district” following “opinions of the”.

Chapter 3. Disqualification of Judges, Jurors, and Attorneys

§ 61. Disqualification for interest.

  1. A Justice of the Supreme Court, judge, juror, or other person shall not act in a judicial capacity in or as trier of a cause or matter in which he or she has been retained or acted as an attorney or counsel, or is interested in the event of such cause or matter, or is related to either party, if a natural person, within the fourth degree of consanguinity or affinity, or if a corporation, to any officer, director, trustee, or agent thereof within such degree; nor shall he or she be permitted to appear as attorney or counsel in a cause in which he or she has acted in such capacity or as trier; but he or she shall not be disqualified from so acting in a cause or matter in which a railroad corporation is a party by reason of being a taxpayer in a town which owns stock in such railroad corporation.
  2. A Justice of the Supreme Court or a judge shall not be disqualified from acting in a judicial capacity in a cause in which a county, town, village, or school district is a party or interested by reason of being a taxpayer or resident in such corporation.
  3. A Superior judge or Justice of the Supreme Court shall not be disqualified to act in his or her official capacity in any matter in which a municipality, a life, fire, or accident insurance company is a party in interest by reason of being a resident or taxpayer in such municipality or a policy holder in such insurance company.
  4. Membership in a domestic mutual fire insurance corporation shall not disqualify a Superior judge to take jurisdiction of a cause wherein such corporation is a party.
  5. A petit juror shall be disqualified from sitting as such in a case where a municipality is a party, if such juror is a resident or taxpayer of such municipality.
  6. A juror who is a policy holder in any cooperative or mutual insurance company shall not by reason thereof be disqualified as a juror in a cause where such cooperative or mutual insurance company is a party, or is interested in the outcome thereof by reason of being an insurer of any of the parties in such cause.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 249 (Adj. Sess.), § 13, eff. April 9, 1974.

History

Source.

Subsecs. (a), (b): 1951 No. 31. V.S. 1947, § 1269. P.L. § 1237. G.L. § 1482. 1915, No. 1 , § 58. P.S. § 1224. V.S. § 901. R.L. § 692. 1876, No. 27 . 1867, No. 10 , § 2. 1867, No. 15 . G.S. 29, § 5. G.S. 30, § 55. G.S. 31, §§ 22, 23. R.S. 24, § 8. R.S. 25, § 25. R.S. 26, §§ 10, 62. R. 1797, p. 82, § 20. R. 1797, p. 126, § 2. R. 1797, p. 425, § 23. 1789, p. 9. R. 1787, p. 84.

Subsec. (c): V.S. 1947, § 1271. P.L. § 1239. 1923, No. 39 .

Subsec. (d): V.S. 1947, § 1475. P.L. § 1441. G.L. § 1661. 1908, No. 62 . P.S. § 1393. V.S. § 1043. R.L. § 824. 1862, No. 16 .

Subsec. (e): V.S. 1947, § 1478. P.L. § 1444. G.L. § 1664. P.S. § 1396. V.S. § 1046. R.L. § 827. G.S. 31, § 23. R.S. 26, § 62. R. 1797, p. 426, § 24.

Subsec. (f): V.S. 1947, § 1722. P.L. § 1681. 1933, No. 157 , § 1521. G.L. § 4245. 1908, No. 62 . P.S. § 3689. V.S. § 3190. 1886, No. 42 , § 15. R.L. § 2843. 1867, No. 40 .

Subsec. (g): V.S. 1947, § 1723. 1935, No. 47 , § 1.

Revision note

—2017. In subsec. (d), replaced “district” with “Superior” pursuant to 2009, No. 154 (Adj. Sess.), § 236.

—1959. In subsecs. (d) and (e) “justice” was changed to “justice of the peace,” since they were formerly in a chapter relating solely to justices of the peace.

Revision note—. References to chancellor and masters in chancery were omitted in view of repeal of provisions relating to equity courts.

Amendments

—1973 (Adj. Sess.). Amended generally by omitting references to justice of peace.

Subsec. (e): Omitted.

Subsecs. (f) and (g) relettered as (e) and (f).

—1965. Subsec. (d): Substituted “district judge” for “municipal judge”.

CROSS REFERENCES

Justice of Supreme Court or Superior judge not to be officer of certain corporations, see 4 V.S.A §§ 6 and 72.

Probate court, disqualification of judge or register, see 4 V.S.A. §§ 354 and 355.

Sheriff or constable, disqualification to serve process, see § 694 of this title.

ANNOTATIONS

I. INTEREST GENERALLY.
Attorney.

This section by implication prohibits judge of county court from accepting retainer or acting as attorney or counsel in bringing or managing in such court any suit in which he has no personal interest, during his term of office. Cady v. Lang, 95 Vt. 287, 115 A. 140, 1921 Vt. LEXIS 212 (1921).

Judge of court of insolvency was not precluded from passing on claim consisting of judgment of common law court, by reason of fact that he acted as counsel for claimant in procuring that judgment; nor was he disqualified by reason of fact that judgment was partially secured by attachment, where it did not appear that he acted as counsel in respect to attachment or passed on its validity as judge. Clemons v. Clemons, 69 Vt. 545, 38 A. 314 (1897), same case 68 Vt. 77, 34 A. 34, 39 A.L.R. 459.

Since authorization of indifferent person to serve citation upon party to be present at taking of deposition, was judicial act, such authorization by magistrate, who was counsel for one of parties, was invalid. St. Johnsbury v. Goodenough, 44 Vt. 662, 1871 Vt. LEXIS 111 (1871).

When attorney made writ, signed it as justice of peace and took recognizance for costs, this was a judicial act which rendered process abatable. Ingraham v. Leland, 19 Vt. 304, 1847 Vt. LEXIS 31 (1847).

Since there was no distinction between being “of counsel” and “attorney” in case, plea in abatement was sufficient if it alleged that magistrate who signed writ “was then and there an attorney of record in said suit.” Ingraham v. Leland, 19 Vt. 304, 1847 Vt. LEXIS 31 (1847).

Allegation that justice was “lawfully appointed agent of the town of B., to prosecute and defend suits in which said town was interested,” was insufficient, on demurrer, to bring case within provision of statute which prohibits a justice from taking “cognizance of any cause, or doing any judicial act, when he shall have been of counsel.” Pierce v. Butler, 16 Vt. 101, 1844 Vt. LEXIS 20 (1844).

Bias or prejudice.

Bias and prejudice of a trial judge must be clearly and affirmatively shown. In re Shuttle, 131 Vt. 457, 306 A.2d 667, 1973 Vt. LEXIS 333 (1973).

Bias or prejudice as ground for disqualification of judge, see annotations under Vermont constitution, ch. II, § 28.

Burden of proof.

Vermont Labor Relations Board acted correctly in denying grievant’s motion to recuse a member where she did not achieve her burden of establishing the grounds for recusal. McIsaac v. Univ. of Vt., 2004 VT 50, 177 Vt. 16, 853 A.2d 77, 2004 Vt. LEXIS 167 (2004).

Duty of court.

If a court feels he would be unable to maintain a scrupulous detachment in the trial of a case, he should make this known at once, and withdraw from the case. Siebert v. Siebert, 124 Vt. 187, 200 A.2d 258, 1964 Vt. LEXIS 81 (1964).

Incompatible functions.

Evidence and findings amply supported conclusion that claim that trial judge who as attorney general had, more than ten years previous, made an argument in a post-conviction proceeding brought by petitioner, and had had petitioner before him as a litigant at one time, and testified in federal court relating to prosecutions of petitioner, was biased and prejudiced against petitioner was unfounded by the evidence; and claim was unfounded in law as well. In re Shuttle, 131 Vt. 457, 306 A.2d 667, 1973 Vt. LEXIS 333 (1973).

Environmental board’s initiation of action in superior court to enjoin violations of Act 250 permit and its continuation of hearing on petition to revoke the permit did not violate subsection (a) of this section, requiring disqualification of person acting in judicial capacity; mere combination of functions did not make board “interested” and therefore disqualified to act on petition for revocation. In re Crushed Rock, Inc., 150 Vt. 613, 557 A.2d 84, 1988 Vt. LEXIS 226 (1988).

Fact that assistant judges of county court were members of prison board by which respondent was required to labor without jail walls, did not disqualify them to sit in trial of respondent for escape while so employed. State v. Wright, 81 Vt. 281, 69 A. 761, 1908 Vt. LEXIS 143 (1908).

Justice of peace could issue warrant to collect tax which was to be paid to board of selectmen to which he belonged, issuance of warrant being merely ministerial and he having no personal or private interest in tax. Alger v. Curry, 40 Vt. 437 (1868), same case 38 Vt. 382.

Justice of peace was not legally disqualified to take jurisdiction of and try case for reason that he has previously, as one of board of arbitrators between same parties and in reference to subject matter of suit, formed an opinion and expressed it to his associate arbitrator. Batchelder v. Nourse, 35 Vt. 642, 1863 Vt. LEXIS 28 (1863).

Justice of peace who had acted as grand juror in prosecuting for an offense before justice of peace was incompetent to try a civil action brought to recover redress for supposed criminal act. Freelove v. Smith, 9 Vt. 180, 1837 Vt. LEXIS 19 (1837).

Interest in event of suit generally.

Fact that writ returnable to county court was signed by justice of peace who was interested in event of suit was no ground of abatement. Graham v. Todd, 9 Vt. 166, 1837 Vt. LEXIS 15 (1837).

Justice of peace had no authority to render judgment by confession if he was interested in demand on which judgment was rendered. Bates v. Thompson, 2 D. Chip. 96 (Vt. July 1, 1824).

It was good cause of challenge to petit juror, that he had been recognized for costs of prosecution in suit, though he had been discharged from his recognizance. Phelps v. Hall, 2 Tyl. 401 (1803), same case 2 Tyler 399.

To work judicial disqualification, interest must be proprietary or such that affects personal rights of judge as an individual, and in absence of an express statutory prohibition, remote interest does not disqualify. Vermont Electric Power Co. v. Anderson, 121 Vt. 72, 147 A.2d 875, 1959 Vt. LEXIS 90 (1959).

Officers and directors.

Where a member of administrative tribunal was a member of the governing board of a petitioner before the tribunal and the chairman of the tribunal had contributed to the petitioning organization, the member was disqualified to act, as was the chairman if his contributions or feeling were sufficient to give him an interest in the event. In re State Aid Highway No. 1, Peru, Vt., 133 Vt. 4, 328 A.2d 667, 1974 Vt. LEXIS 275 (1974).

Procedure.

Where each of two members of administrative tribunal was possibly disqualifiable, objection to one was waived, the record did not show which one, and there was no indication in the findings and conclusions as to which members participated in the decision, proper practice was not followed. In re State Aid Highway No. 1, Peru, Vt., 133 Vt. 4, 328 A.2d 667, 1974 Vt. LEXIS 275 (1974).

Stockholder or policy holder.

Since enactment of subsec. (g), is it not permitted in automobile negligence case to inquire of juryman on voir dire whether he is insured in a certain named mutual insurance company. Glass v. Bosworth, 113 Vt. 303, 34 A.2d 113, 1943 Vt. LEXIS 173 (1943).

Taxpayer or resident.

While in criminal cases, any justice of county had jurisdiction, though penalty or fine might go to treasury of town of which such justice was rated inhabitant, in civil cases, if any part of debt or avails of action went into town treasury, such justice did not have jurisdiction. Waters v. Day, 10 Vt. 487, 1838 Vt. LEXIS 92 (1838).

Since justice of peace, acting under statutes relating to appraisal of damages from grading of a highway, was required to perform judicial functions, justice who was taxpayer of town concerned was disqualified from so acting on ground of interest. Fairbanks v. Town of Rockingham, 72 Vt. 419, 48 A. 654, 1900 Vt. LEXIS 159 (1900).

Allegation that justice was “lawful inhabitant and citizen of said town of B.,” did not import that he was liable to pay taxes, and therefore interested in cause. Pierce v. Butler, 16 Vt. 101, 1844 Vt. LEXIS 20 (1844).

Justice of peace who was rated inhabitant of town into treasury of which fine was to be paid had jurisdiction of cause. State v. Batchelder, 6 Vt. 479, 1834 Vt. LEXIS 79 (1834).

Fact that one of grand jurors who presented bill of indictment against town for not making and opening road was rateable inhabitant of town was no cause why such indictment should be quashed. State v. Newfane, 12 Vt. 422, 1840 Vt. LEXIS 64 (1840).

In action of debt on recognizance taken for appearance of person arrested on criminal process, it was no defense that jury who tried case were taken from town to which fine would be payable. Treasurer of Middletown v. Ames, 7 Vt. 166, 1835 Vt. LEXIS 35 (1835).

Waiver of disqualification.

If justice, who was interested, continued cause, and parties went to trial on merits without objection on account of improper continuance, irregularity in continuance was waived. Howe v. Hosford, 8 Vt. 220, 1836 Vt. LEXIS 44 (1836).

Although juror had remained on panel by consent of parties, this did not preclude party from challenging him, on the ground of having been recognized for costs of prosecution, upon impaneling of another jury to try same issue. Phelps v. Hall, 2 Tyl. 401 (1803), same case 2 Tyl. 399.

Objection on appeal that trial judge was interested in suit was not considered where record did not disclose fact that judge was interested. Weeks v. Sowles, 58 Vt. 696, 6 A. 603, 1886 Vt. LEXIS 133 (1886).

II. RELATIONSHIP.
Administrative agencies.

Relationship provision does not apply to a board of license commissioners, and so will not disqualify a member of the board because of his relationship to the applicant for a liquor license. Davidson v. Whitehill, 87 Vt. 499, 89 A. 1081, 1914 Vt. LEXIS 267 (1914).

Commissioner on sewer assessments was not disqualified by fact that an abutting owner who had paid his assessment before hearing, was related to the commissioner within fourth degree. Sowles v. St. Albans, 71 Vt. 418, 45 A. 1050, 1899 Vt. LEXIS 208 (1899).

Attorney, relationship to.

Trial judge was not disqualified because his brother was attorney for one of parties to action. Johnson v. Moore, 109 Vt. 282, 196 A. 246, 1938 Vt. LEXIS 133 (1938).

Degree of relationship.

Relationship is affinity or consanguinity within fourth degree, reckoned according to civil, not canon law. Churchill v. Churchill, 12 Vt. 661, 1839 Vt. LEXIS 171 (1839).

Relationship by affinity ceases upon dissolution of marriage which created it. Blodget v. Brinmaid, 9 Vt. 27, 1837 Vt. LEXIS 2 (1837), 22 B.U.L. Rev. 407, 410, 560, 56 Yale L.J. 616 (1837).

Fact that magistrate taking a deposition was second cousin to party offering it was no ground for its exclusion, that not being relationship within fourth degree. Reed v. Newcomb, 62 Vt. 75, 19 A. 367 (1889), same case 64 Vt. 49, 23 A. 589.

Relationship generally.

Provision that judge is disqualified if related to either party within fourth degree of consanguinity or affinity, is to be given strict construction and applied only to those who are actual parties to suit. Johnson v. Moore, 109 Vt. 282, 196 A. 246, 1938 Vt. LEXIS 133 (1938).

Judgment rendered on voluntary confession of debtor by justice of peace who was related to creditor within fourth degree of affinity, was void for want of jurisdiction. Hill v. Wait, 5 Vt. 124, 1831 Vt. LEXIS 76 (1831).

Person was disqualified to sit as auditor in trial of action of book account whose wife was first cousin to wife of one of the parties. Clapp v. Foster, 34 Vt. 580, 1861 Vt. LEXIS 99 (1861).

Relationship to party which disqualifies juror is same which disqualifies judge or justice. Churchill v. Churchill, 12 Vt. 661, 1839 Vt. LEXIS 171 (1839).

Husband and wife were each qualified in his or her own right to act as jurors and, although trial court could have held, in its discretion, that presence of both on same jury might prevent a fair trial and so could have excused one, there was no legal impediment to having both on same jury. State v. Wilkins, 115 Vt. 269, 56 A.2d 473, 1948 Vt. LEXIS 64 (1948).

Stockholder or policyholder, relationship to.

In suit by corporation, it was no valid objection to jurisdiction of justice, that he was related to corporator and stockholder. Searsburgh Turnpike Co. v. Cutler, 6 Vt. 315, 1834 Vt. LEXIS 60 (1834).

Where wife of one of grand jurors, who found an indictment against respondent charged with misapplying and diverting funds of bank, was depositor in her own right, grand juror was not disqualified. State v. Brainerd, 56 Vt. 532 (1884), same case 57 Vt. 369.

Cited.

Cited in State v. St. Francis, 151 Vt. 384, 563 A.2d 249, 1989 Vt. LEXIS 90 (1989); Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997); McIsaac v. Univ. of Vt., 2004 VT 50, 177 Vt. 16, 853 A.2d 77, 2004 Vt. LEXIS 167 (2004).

Law Reviews —

Disqualifications of judges, see 56 Yale L.J. 605, 614 (1947).

A Crisis in Confidence: Municipal Officials Under Fire, see 16 Vt. L. Rev. 579 (1992).

§ 62. Judge acting as referee, auditor, commissioner, or master.

A Justice of the Supreme Court or a Superior judge shall not act as referee, auditor, commissioner, or special master in a cause pending in a court in this State, unless he or she began the hearing in such cause as referee, auditor, commissioner, or special master prior to his or her appointment or election as such Justice or judge.

History

Source.

V.S. 1947, § 1270. P.L. § 1238. G.L. § 1483. 1915, No. 1 , § 59. P.S. § 1225. 1906, No. 63 , § 19. 1902, No. 34 , § 1. V.S. § 902. 1886, No. 67 , § 1.

§ 63. Nisi prius judge sitting en banc or on appeal.

A Justice of the Supreme Court or Superior judge shall not sit at the trial of a cause en banc which he or she tried in a Superior Court.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1384. P.L. § 1350. G.L. § 1590. 1915, No. 1 , § 60. P.S. § 1336. 1906, No. 63 , § 23. V.S. § 1001. R.L. § 791. G.S. 30, § 5. 1860, No. 8 . 1857, No. 1 , § 9. R.S. 111, § 12. 1837, No. 8 .

Revision note—

Phrase “nor sit in the hearing of an appeal from the court of chancery, taken from a decree made by him, unless the decree is strictly pro forma and made without hearing” was omitted to conform section to merger of law and equity pursuant to 1971, No. 185 (Adj. Sess.), § 236. See notes set out under 4 V.S.A. ch. 5 and § 219.

Editor’s note

—2002. This section is obsolete insofar as it relates to trials “en banc.”

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

§ 64. Jurors—Conviction of crime; citizenship and residence.

A person who has served a term of imprisonment in this State after conviction of a felony, or who is not a citizen of the United States or a resident of the county, shall be disqualified to act as a grand or petit juror.

History

Source.

V.S. 1947, § 1720. P.L. § 1679. 1933, No. 157 , § 1519. G.L. § 6899. P.S. § 5788. V.S. § 4971. R.L. § 4161. G.S. 114, § 14. G.L. § 6913. P.S. § 5803. V.S. § 4988. R.L. § 3730. G.S. 114, § 1.

CROSS REFERENCES

Exemptions and challenges of jurors, see chs. 41 and 81 of this title.

ANNOTATIONS

Aliens.

Verdict will be set aside on motion if alien sits on jury and disqualification is not known to moving party until after verdict. Quinn v. Halbert, 52 Vt. 353 (1880), same case 55 Vt. 224, 57 Vt. 178; Richards v. Moore, 60 Vt. 449, 15 A. 119 (1888), same case 62 Vt. 217, 19 Atl. 390.

Review.

Fact that foreperson of District Court jury was not a resident of Chittenden County did not constitute plain error, and defendant waived this issue by not raising it prior to impanelment of jury; defendant had ample opportunity to determine facts, where jury questionnaire indicating foreperson’s residence had reached court by date of jury draw, and if questionnaire was not filed, defendant could have insisted on compliance with questionnaire requirement before going forward with jury selection, or asked qualification questions during jury voir dire. State v. Koveos, 169 Vt. 62, 732 A.2d 722, 1999 Vt. LEXIS 20 (1999), limited, State v. Keiser, 174 Vt. 87, 807 A.2d 378, 2002 Vt. LEXIS 144 (2002).

§ 65. Party to action pending at same term.

A person duly summoned as a petit juror at a stated term of the Superior Court who is party to an action pending in the court, marked to be tried by a jury at that term, shall be disqualified for jury service during such term.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1721. P.L. § 1680. 1933, No. 157 , § 1520. G.L. § 1886. P.S. § 1585. V.S. § 1233. R.L. § 998. 1864, No. 36 .

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

ANNOTATIONS

Motion to discharge.

Verdict would not be set aside on ground that one of jurors had cause of his own pending for trial by jury at same term, where there was no motion to discharge him. Bellows v. Weeks, 41 Vt. 590, 1869 Vt. LEXIS 13 (1869).

Chapter 5. Contempt

§ 121. Supreme Court.

When a party violates a lawful order made against him or her by the Supreme Court or by a Justice thereof in a cause or matter brought to or pending before such Court or Justice after service of such order upon such party, contempt proceedings may be instituted against him or her before a Justice of the Supreme Court.

History

Source.

V.S. 1947, § 1390. P.L. § 1356. G.L. § 1594. 1915, No. 1 , § 3. P.S. § 1340. 1906, No. 63 , § 24. V.S. § 1005. 1892, No. 34 , § 1.

§ 122. Superior judge or Superior Court.

When a party violates an order made against him or her in a cause brought to or pending before a Superior judge or a Superior Court after service of the order upon that party, contempt proceedings may be instituted against him or her before the court or any Superior judge. When, in a cause no longer on the docket of the court, the proceedings are brought before a Superior judge, that judge forthwith shall order the cause to be brought forward on the docket of the court and may issue concurrently with the order a summons or capias against the party. The issuing of the summons or capias and any further proceedings thereon shall be minuted on the docket.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 30, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 66.

History

Source.

V.S. 1947, § 1397. P.L. § 1363. G.L. § 1599. 1912, No. 90 . 1908, No. 59 . P.S. § 1347. 1906, No. 63 , § 15.

Amendments

—2009 (Adj. Sess.) Inserted “or” preceding “superior court” and deleted “and district court” thereafter in the section catchline, inserted “or her” following “him” in two places, and deleted “or the district court” following “superior court” in the first sentence, and inserted “forthwith” preceding “shall order” and deleted “forthwith” thereafter in the second sentence.

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1971 (Adj. Sess.). Rephrased and substituted reference to district court for chancery court.

ANNOTATIONS

Generally.

Because the statute regarding contempt in Superior Court was merely a procedural prerequisite to the institution of contempt proceedings, the prohibition against court rules imposing substantive changes of the law was inapplicable here. Welch v. Welch, 2013 VT 20, 193 Vt. 385, 67 A.3d 956, 2013 Vt. LEXIS 15 (2013).

A party cannot be subjected to contempt proceedings under this section until actual service has been accomplished. Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60, 1966 Vt. LEXIS 187 (1966).

Contempt proceeding based on violation of court order does not open to reconsideration the legal or actual basis of the order so as to result in a retrial of the original controversy. Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60, 1966 Vt. LEXIS 187 (1966).

The right of a party to be heard in defense of his rights cannot be withheld as a punishment for acts of contempt that did nothing to hinder or embarrass the proceedings or degrade the authority of the court. Walker v. Walker, 123 Vt. 430, 192 A.2d 460, 1963 Vt. LEXIS 111 (1963).

The contemptuous conduct must, in some way, affect the due course of procedure to final decree; otherwise, it cannot be used to forbid the libellee, who is in court in response to its summons, the right to take part in a hearing which deprives him of the subject matter of the litigation. Walker v. Walker, 123 Vt. 430, 192 A.2d 460, 1963 Vt. LEXIS 111 (1963).

Contempt proceeding is taken in the original action. Macdermid v. Macdermid, 116 Vt. 237, 73 A.2d 315, 1950 Vt. LEXIS 140 (1950).

Appeal and review.

An appeal may be taken to review questions of law decided in contempt proceedings heard by chancery and county courts. Socony Mobile v. Massena Iron and Metal, 125 Vt. 403, 217 A.2d 56, 1966 Vt. LEXIS 200 (1966).

Defenses.

In a divorce action abated by the death of husband, the Family Court correctly concluded that contempt provided no adequate remedy where husband removed wife as the beneficiary of a life insurance policy in violation of a pre-abatement order. Aither v. Estate of Aither, 2006 VT 111, 180 Vt. 472, 913 A.2d 376, 2006 Vt. LEXIS 313 (2006).

Defendant was properly held in contempt of order that he pay child support, even though there was no finding that he had the present ability to pay, as defendant, who did not dispute that he had failed to comply with the orders, had the burden of establishing inability to comply. The court held defendant in contempt, not because he had the present ability to pay the child support, but because he failed to establish an inability to comply with its orders. Russell v. Armitage, 166 Vt. 392, 697 A.2d 630, 1997 Vt. LEXIS 96 (1997).

The inability, without fault, to render obedience to an order or decree of a court is a good defense to a charge of contempt, but such a defense is effective only where, after using due diligence, the person is still not able to comply with the order. Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60, 1966 Vt. LEXIS 187 (1966).

Defendant has burden of proving the impossibility of compliance with court order in contempt proceedings based on violation of such order. Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60, 1966 Vt. LEXIS 187 (1966).

Absent a showing of due diligence on the part of the defendants to comply with the order of the court, trial court was not required to make determination of whether defendant was unable to obey decree by reason of plaintiff’s failure to perform. Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60, 1966 Vt. LEXIS 187 (1966).

Discretion of court.

The power of contempt is, in the main, discretionary, and when the court is called upon to exercise its discretion in the matter, the moving party is entitled to have the issue settled. Orr v. Orr, 122 Vt. 470, 177 A.2d 233, 1962 Vt. LEXIS 122 (1962).

Fines and penalties.

Only compensatory fines or coercive sanctions may be imposed on a civil contemnor. State v. Pownal Tanning Co., 142 Vt. 601, 459 A.2d 989, 1983 Vt. LEXIS 441 (1983).

In the case of defendant, found in contempt of a judgment order incorporating a stipulation between defendant and the State, whereby defendant agreed to abate nuisance odors from its tannery, $10,000 fine imposed on defendant could not be upheld as a civil contempt penalty, where it was not compensatory in nature since the State introduced no evidence of any loss occasioned by defendant’s failure to comply with the order, and where it was not a coercive fine since it was not purgeable. State v. Pownal Tanning Co., 142 Vt. 601, 459 A.2d 989, 1983 Vt. LEXIS 441 (1983).

Parties.

Although this section requires service of a contempt order before it can be enforced, it does not limit parties against whom it may be enforced once it is effective. Vermont Women's Health Center v. Operation Rescue, 159 Vt. 141, 617 A.2d 411, 1992 Vt. LEXIS 138 (1992).

Argument was rejected that contempt proceedings may be instituted only against party named in caption of case for violation of court order; this section does not impose a limit on the persons that a court could punish for contempt. Horton v. Chamberlain, 152 Vt. 351, 566 A.2d 953, 1989 Vt. LEXIS 182 (1989).

Procedure.

Contempt proceeding was heard by the court itself, the cause did not have to be brought forward and it could not be said that failure to bring cause forward resulted in cause not being properly before the court. Bessette v. Bessette, 137 Vt. 227, 401 A.2d 911, 1979 Vt. LEXIS 907 (1979).

The requirement of service of the court order, provided for in this section, is merely a procedural prerequisite to the institution of contempt proceedings. Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60, 1966 Vt. LEXIS 187 (1966).

A party to a divorce proceeding cannot be adjudged in contempt for an out-of-court failure to abide by a court order, without an order to show cause and an opportunity to be heard. Walker v. Walker, 123 Vt. 430, 192 A.2d 460, 1963 Vt. LEXIS 111 (1963).

Where defendant had actual knowledge and notice of contempt petition and what was set forth in it he could not avail himself of fact that process was not served personally on him. Macdermid v. Macdermid, 116 Vt. 237, 73 A.2d 315, 1950 Vt. LEXIS 140 (1950).

Service of copy of contempt proceeding on attorney of record of defendant in case wherein order was made on which contempt petition was based was good and valid service on such defendant in contempt proceedings. Macdermid v. Macdermid, 116 Vt. 237, 73 A.2d 315, 1950 Vt. LEXIS 140 (1950).

Where relator was proceeded against for contempt, in disobedience of an order of chancellor upon showing of other party, and adjudication of chancellor was on this showing alone, without any attempt to give notice to person convicted, proceeding was irregular and such proceeding was regarded as a distinct and independent matter requiring distinct notice, as much as a new suit. Ex parte Langdon, 25 Vt. 680, 1853 Vt. LEXIS 110 (1853).

Right to attorney.

An indigent defendant is entitled, under the due process clause of the Fourteenth Amendment, to appointment of counsel prior to being incarcerated for civil contempt. Russell v. Armitage, 166 Vt. 392, 697 A.2d 630, 1997 Vt. LEXIS 96 (1997).

Civil contempt for failure to pay child support involves three issues: (1) The obligee must show that the obligor violated the court’s child-support order; (2) The obligor then has the burden of showing an inability to comply; and (3) If the obligor fails to meet this burden, the court may find him in willful violation of the order and, in the final step, determine appropriate means by which to ensure compliance with the order. Where defendant was represented by counsel on all three issues at the purge hearing that ultimately resulted in an order of incarceration, due process did not require appointment of counsel at an earlier point in the proceeding. Russell v. Armitage, 166 Vt. 392, 697 A.2d 630, 1997 Vt. LEXIS 96 (1997).

Although the Public Defender Act, 13 V.S.A. §§ 5201-5277 , does not authorize courts to assign civil contempt proceedings to the Defender General even where the trial court considers ordering incarceration, nor does it authorize compensation of appointed counsel to be made from funds appropriated to the Office of the Defender General, the court has the inherent power to require attorneys to serve and protect the vital interests of uncounselled litigants where circumstances demand it. Public defenders, like all members of the bar, are subject to such appointment. Russell v. Armitage, 166 Vt. 392, 697 A.2d 630, 1997 Vt. LEXIS 96 (1997).

Service of order.

Without question, the statute regarding contempt in Superior Court and the case law construing that statute require service of the underlying order upon a party before the party can be found in contempt for violating that order, but neither the statute nor the case law purports to designate the form of service required. Indeed, when the Legislature intends to do so, it makes the form of service explicit. Welch v. Welch, 2013 VT 20, 193 Vt. 385, 67 A.3d 956, 2013 Vt. LEXIS 15 (2013).

Service requirement of this section is merely a procedural prerequisite to institution of contempt proceedings. Vermont Women's Health Center v. Operation Rescue, 159 Vt. 141, 617 A.2d 411, 1992 Vt. LEXIS 138 (1992).

Service requirement of this section did not apply to parties who acted in concert with parties named in temporary restraining order. Vermont Women's Health Center v. Operation Rescue, 159 Vt. 141, 617 A.2d 411, 1992 Vt. LEXIS 138 (1992).

Temporary alimony.

County court has implied jurisdiction to enforce order for payment of temporary alimony by proceedings for contempt, and such jurisdiction has been expressly granted to Superior judge by this section and 15 V.S.A. § 602 . Cutting v. Cutting, 101 Vt. 381, 143 A. 676, 1928 Vt. LEXIS 166 (1928).

§ 123. Imprisonment for contempt.

  1. Imprisonment as punishment for contempt, or to enforce orders, sentences, or decrees in contempt proceedings, or upon execution issued in civil process shall be in a correctional facility maintained by or for the State.
  2. Any person imprisoned for contempt, in addition to any other legal rights and remedies available to him or her, shall be entitled to a review of the contempt proceedings annually. The Commissioner of Corrections shall provide timely notice for the review of the proceedings of any person so imprisoned to the sentencing court.  The sentencing court shall conduct a hearing and issue its order within 60 days of receipt of notice from the Commissioner of Corrections.

HISTORY: Amended 1969, No. 141 , § 3; 1969, No. 198 (Adj. Sess.), § 1; 1973, No. 66 .

History

Source.

V.S. 1947, § 1274. P.L. § 1242. G.L. § 1486. P.S. § 1230. 1898, No. 42 , § 1.

Amendments

—1973. Subsec. (a): Original section designated as subsec. (a).

Subsec. (b): Added.

—1969 (Adj. Sess.). Substituted “a correctional facility maintained by or for the state” for specifically named facilities.

—1969. Section amended generally.

Chapter 7. Prevention of Frauds and Perjuries

§ 181. Agreements required to be written.

An action at law shall not be brought in the following cases unless the promise, contract, or agreement upon which such action is brought or some memorandum or note thereof is in writing, signed by the party to be charged therewith or by some person thereunto by him or her lawfully authorized:

  1. A special promise of an executor or administrator to answer damages out of his or her own estate.
  2. A special promise to answer for the debt, default, or misdoings of another.
  3. An agreement made in consideration of civil marriage.
  4. An agreement not to be performed within one year from the making thereof.
  5. A contract for the sale of lands, tenements, or hereditaments, or of an interest in or concerning them.  Authorization to execute such a contract on behalf of another shall be in writing.
  6. An agreement to cure, a promise to cure, a contract to cure, or warranty of cure relating to medical care or treatment or the results of a service rendered by a health care professional which shall mean a person or corporation licensed by this State to provide health care or professional services as a physician, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, or psychologist, or an officer, employee, or agent thereof acting in the course and scope of his or her employment.
  7. An agreement to cure, a promise to cure, a contract to cure, or warranty of cure relating to medical care or treatment rendered by a health provider, which shall mean a corporation, facility, or institution licensed to provide health care as a hospital.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972; 1975, No. 250 (Adj. Sess.), § 1, eff. April 7, 1976.

History

Source.

V.S. 1947, § 1716. P.L. § 1675. G.L. § 1876. P.S. § 1576. V.S. § 1224. R.L. § 981. G.S. 66, § 1. R.S. 61, § 1. 1822, p. 11, § 1. R. 1797, p. 305, § 4.

Revision note

—2009. In subdiv. (3), substituted “civil marriage” for “marriage” in accordance with 2009, No. 3 , § 12a.

Revision note— . Reference to “or in equity” was omitted in view of merger of law and equity pursuant to 1971, No. 185 (Adj. Sess.), § 236. See notes set out under 4 V.S.A. ch. 5 and § 219.

Amendments

—1975 (Adj. Sess.). Subdivs. (6), (7): Added.

CROSS REFERENCES

Conveyances of real estate, see 27 V.S.A. chapter 5.

ANNOTATIONS

I. GENERALLY.
Construction and effect.

With respect to a dispute between the parties regarding their real estate agreement, as the agreement was a valid contract for deed and not unenforceable under the Statute of Frauds, the purchasers acquired an equitable interest in the property. Prue v. Royer, 2013 VT 12, 193 Vt. 267, 67 A.3d 895, 2013 Vt. LEXIS 9 (2013).

When a grantor transferred real property to his then girlfriend, who transferred it to her son after the relationship ended, the statute of frauds did not prevent the grantor from presenting evidence of an alleged oral agreement that the girlfriend would reconvey the property to him. Such evidence could be used not to enforce the terms of the alleged agreement, but to support the grantor’s assertion that the girlfriend and son were unjustly enriched and that he was entitled to the imposition of a constructive trust. Savage v. Walker, 2009 VT 8, 185 Vt. 603, 969 A.2d 121, 2009 Vt. LEXIS 4 (2009) (mem.).

As a general rule, a contract involving the sale of land or interests therein must be in writing to be enforceable. Rappaport v. Estate of Banfield, 2007 VT 25, 181 Vt. 447, 924 A.2d 72, 2007 Vt. LEXIS 50 (2007).

While partnership or joint venture agreements need not be in writing as a general matter, the fact that agreements covered by the Statute of Frauds—such as those relating to interests in real property—are made in the context of a partnership or joint venture agreement does not render the Statute inapplicable. The fact that the agreement involves parties to a business partnership does not negate the interests traditionally safeguarded under the Statute. Quimby v. Myers, 2005 VT 123, 179 Vt. 611, 895 A.2d 128, 2005 Vt. LEXIS 305 (2005) (mem.).

The Statute of Frauds establishes a rule of evidence regarding parol testimony, and does not make oral contracts illegal or void per se. Troy v. Hanifin, 132 Vt. 76, 315 A.2d 875, 1974 Vt. LEXIS 303 (1974).

Any changes made in contract governed by the provisions of Statute of Frauds are subject to the same requirements of form as the original provisions. Evarts v. Forte, 135 Vt. 306, 376 A.2d 766, 1977 Vt. LEXIS 614 (1977).

Although the Statute of Frauds is merely a rule of evidence, litigants who timely raise it are entitled to its enforcement. Pike Indus., Inc. v. Middlebury Associates, 136 Vt. 588, 398 A.2d 280, 1979 Vt. LEXIS 921 (1979).

Where a contract is governed by the Statute of Frauds, any changes made are subject to the same requirements of form as the original provisions. Kingsbury v. Villeneuve, 144 Vt. 648, 475 A.2d 241, 1984 Vt. LEXIS 467 (1984) (mem.).

Statute of Frauds applies to executory contracts. Ide & Smith v. Stanton, 15 Vt. 685, 1843 Vt. LEXIS 110 (1843).

Statute of Frauds does not make oral contracts illegal or void and unenforceable if allowed to be proved by parol, but affects rules of evidence and not pleading. Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923); Scofield v. Stoddard, 58 Vt. 290, 5 A. 314 (1886); Montgomery v. Edwards, 46 Vt. 151, 1873 Vt. LEXIS 84 (1873); Adams v. Patrick, 30 Vt. 516, 1858 Vt. LEXIS 63 (1858).

Statute of Frauds does not interfere with substance of contract, but throws difficulty in way of evidence. Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

Statute of Frauds, which prohibits suit on certain contracts not in writing, does not make contract void, but so far as same may have been performed, party may defend under it as to what has been done. Philbrook v. Belknap, 6 Vt. 383, 1834 Vt. LEXIS 69 (1834); Mack v. Bragg, 30 Vt. 571, 1858 Vt. LEXIS 71 (1858).

Estoppel.

Where an agreement for purchase and sale of real estate provided that the sale was contingent on buyer having seen the placement of utility lines, but buyer was required to notify owner of her intention to proceed with the sale 14 days after the lines had been installed and owner’s real estate broker orally agreed to several time extensions for buyer to inspect the lines, the owner was estopped from asserting a continuing right in the buyer to cancel the contract. North v. Simonini, 142 Vt. 482, 457 A.2d 285, 1983 Vt. LEXIS 415 (1983).

In action to recover for labor with team, plaintiff’s contention that defendant was estopped from setting up Statute of Frauds as defense by reason of having represented to plaintiff that he could pay by team work for certain wagon sold him by defendant, was untenable, where contract on which recovery was sought was admittedly oral, and there was no testimony tending to show that purchase of wagon had any connection with it, or was an acknowledgement of it. Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

Modifications.

With respect to a dispute between the parties regarding their real estate agreement and related financing agreements, it was clear that the modifications were intended to refer to and modify the earlier purchase agreement, such that there was no violation of the Statute of Frauds by the failure to include a closing date therein. Prue v. Royer, 2013 VT 12, 193 Vt. 267, 67 A.3d 895, 2013 Vt. LEXIS 9 (2013).

Although, generally, changes in contracts covered by this section are governed by the same formal requirements as the original contract, where the parties waive, by their words and conduct, the time limitations of the contract, the nonwritten modification does not violate this section since waiver and estoppel operate independently of it. North v. Simonini, 142 Vt. 482, 457 A.2d 285, 1983 Vt. LEXIS 415 (1983).

An oral modification of a written contract is unenforceable under the Statute of Frauds. Kingsbury v. Villeneuve, 144 Vt. 648, 475 A.2d 241, 1984 Vt. LEXIS 467 (1984) (mem.).

Any proposed changes or modifications in a contract controlled by this section are subjected to the same requirements of form as the original provisions. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Price.

Although price is an essential term of a bargain of sale and must be stated in memorandum thereof, this is so only when parties agree on price, and if they leave price unfixed, law steps in and fixes it at reasonable figure, memorandum required by statute need not state price, and parol evidence is admissible to determine it. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956).

Purpose.

The purpose of this section is to prevent a party from being compelled, by oral and perhaps false testimony, to be held responsible for an agreement he or she claims was never made. Mason v. Anderson, 146 Vt. 242, 499 A.2d 783, 1985 Vt. LEXIS 375 (1985).

While the writing requirement of this section is imposed primarily as a shield against possible fraud, it also promotes deliberation, seriousness, certainty, and shows that the act was a genuine act of volition. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Purpose of Statute of Frauds is to prevent party from being compelled, by oral and perhaps false testimony, to be held responsible for contract he claims he never made. First Nat'l Bank v. Laperle, 117 Vt. 144, 86 A.2d 635, 1952 Vt. LEXIS 115 (1952).

If, however, that party has offered in writing to make very contract with which it is sought to charge him, he cannot justly complain because acceptance of other party is oral. First Nat'l Bank v. Laperle, 117 Vt. 144, 86 A.2d 635, 1952 Vt. LEXIS 115 (1952).

Provisions of Statute of Frauds applicable to contracts affecting interests in land were adopted for purpose of preventing existing estates in land from being upset by parol evidence, and their general effect is to require all contracts concerning real estate to be in writing. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Reliance on oral promise.

An oral agreement may be removed from the Statute of Frauds if the proponent can show that, in reliance on the agreement, he or she suffered a substantial and irretrievable change in position. Quenneville v. Buttolph, 2003 VT 82, 175 Vt. 444, 833 A.2d 1263, 2003 Vt. LEXIS 268 (2003).

Statute of Frauds did not bar enforcement of general contractor’s oral agreement to deed water line to town without payment, since town’s performance of its part of bargain—permitting general contractor to install ten-inch water main under town road—altered positions of parties and thus enforcement of agreement was needed to prevent injustice. Town of Rutland v. City of Rutland, 170 Vt. 87, 743 A.2d 585, 1999 Vt. LEXIS 314 (1999).

If a party relies on an oral promise, fully performing its end of the bargain, then a written promise is not required if it would be fraud to allow the promisor to deny the contract. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

The law does not require that a party seeking to enforce an oral promise prove fraud; rather, he must show that acts of his, done in reliance on the agreement, known to the defendant, so altered the relations of the parties as to prevent restoration to their former condition. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

—Generally.

Affidavit by the sole member of a limited liability company taken in a federal court proceeding was not a repudiation of an existing contract, or an assertion that it was not binding because not in writing, but rather a denial that a contract was ever formed. As such, it did not provide the unambiguous recognition of the contract that was required to satisfy the Statute of Frauds. Stonewall of Woodstock Corp. v. Stardust 11TS, LLC, 2018 VT 79, 208 Vt. 97, 195 A.3d 1111, 2018 Vt. LEXIS 113 (2018).

E-mails from the attorney for the sole member of a limited liability company (LLC) could not supply the signed writing required by the Statute of Frauds because the attorney was not authorized in writing to conclude the real estate sale on behalf of the member or the LLC. Stonewall of Woodstock Corp. v. Stardust 11TS, LLC, 2018 VT 79, 208 Vt. 97, 195 A.3d 1111, 2018 Vt. LEXIS 113 (2018).

A written offer that is orally accepted may constitute a sufficient memorandum of the contract under this section provided the offeror is the party to be charged. Benya v. Stevens & Thompson Paper Co., 143 Vt. 521, 468 A.2d 929, 1983 Vt. LEXIS 563 (1983).

To comply with statute, written memorandum must either by its own language or by reference to something else, contain such description of contract actually made as obviates necessity of resorting to oral evidence in order to supply any terms of contract essential to its validity. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956); Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

If any of these essential terms are altered by contact not in writing, entire contract is thereby reduced to grade of mere unwritten contract, upon which statute expressly declares that no action shall be maintained. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956); Dana & Henry v. Hancock, 30 Vt. 616, 1858 Vt. LEXIS 83 (1858).

Written offer accepted by parol may constitute sufficient memorandum of contract to satisfy statute, provided person making offer is party to be charged. First Nat'l Bank v. Laperle, 117 Vt. 144, 86 A.2d 635, 1952 Vt. LEXIS 115 (1952).

An exception in deed of land by vendor to third person, of timber upon it, which he had previously sold to vendee, was not such a memorandum of contract, as was required by statute, to make it valid as contract. Buck v. Pickwell, 27 Vt. 157, 1854 Vt. LEXIS 112 (1854).

Signing.

Statute of Frauds barred use of telegram as written evidence of an indemnity contract where no signed telegram or any signed authority of the sending agent was put in evidence. Pike Indus., Inc. v. Middlebury Associates, 136 Vt. 588, 398 A.2d 280, 1979 Vt. LEXIS 921 (1979).

Signing required by Statute is signature to memorandum placed there with the intention of authenticating the writing, and if that is intention it is not essential that signature be at the end of memorandum in any particular place thereon and it may be in place provided for signature of witness. First Nat'l Bank v. Laperle, 117 Vt. 144, 86 A.2d 635, 1952 Vt. LEXIS 115 (1952).

—Affirmative defenses.

Where, under rule, Statute of Frauds was an affirmative defense and required to be pleaded, plaintiff who failed to plead it in response to counterclaim could not avail himself of the defense in either the lower court or Supreme Court. Frigon v. Whipple, 134 Vt. 376, 360 A.2d 69, 1976 Vt. LEXIS 680 (1976).

Waiver.

A party can waive the benefit of this section. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Benefit of Statute of Frauds may be waived. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961); Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Statute of Frauds is available on demurrer where pleadings disclose an agreement within it. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956).

Statute was available in defense under general issue in assumpsit. Pocket v. Almon, 90 Vt. 10, 96 A. 421, 1916 Vt. LEXIS 228 (1916).

Exception based on ground that agreement violated statute is too late to be available where excepting party did not plead statute and allowed contract to be proved by oral testimony without objection. LaPlante v. Eastman, 118 Vt. 220, 105 A.2d 265, 1954 Vt. LEXIS 106 (1954).

Statute amounts simply to rule of evidence, and if one entitled to invoke statute remains silent when parol evidence of contract is offered and admitted, he waives right to rely thereon by his silence. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Where defendant had permitted contract to be proved by parol evidence without objection, subsequent filing of an amended answer pleading statute was too late. Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

Statute could be availed of by seasonable objection to evidence, without being specially pleaded. Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

Being a rule of evidence, statute may be waived, and is waived, by permitting proof of a contract by parol evidence without objection, it being too late to invoke the statute after the evidence is thus admitted. Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

Although verbal contract, in part for sale of land and inseparable, was within statute, such statute affected only remedy, and as vendors were not obliged to avail themselves of benefit of its protection to avoid their undertaking, if they chose to recognize contract without claiming such protection, it was good against them. Cooley v. Hatch, 97 Vt. 484, 124 A. 589 (1923), same case 91 Vt. 128, 99 A. 784.

Requirement that promise to answer for the debt of another, etc., be in writing does not make such promise invalid, but is merely a rule of evidence, which is waived if not insisted upon. McDonald v. Place, 88 Vt. 80, 90 A. 948, 1914 Vt. LEXIS 191 (1914).

When evidence obnoxious to statute was received without objection, statute was waived. Holt v. Howard, 77 Vt. 49, 58 A. 797, 1904 Vt. LEXIS 94 (1904).

If defendant waives benefit of statute by admitting contract in his answer, without insisting on statute, or by allowing it to be proved by evidence not in writing, contract is as enforceable as though not required to be evidenced by written instrument. Scofield v. Stoddard, 58 Vt. 290, 5 A. 314 (1886).

Failure to expressly claim benefit of statute not only amounted to renunciation of such benefit, but effect was permanent, and not confined to existing issues; and thus where party in original suit failed to claim in explicit language benefit of statute, he could not set up statute as defense to cross-bill. Battell v. Matot, 58 Vt. 271, 5 A. 479, 1885 Vt. LEXIS 34 (1885).

An admission in bill brought to restrain cutting of standing trees, that defendant had made verbal contract with the owner for the sale of the trees, was a formal waiver of all benefit derivable from the statute, unless at the same time statute is insisted on in clear and explicit language. Battell v. Matot, 58 Vt. 271, 5 A. 479, 1885 Vt. LEXIS 34 (1885).

Statute was waived in case in chancery unless pleaded. Howe v. Chesley, 56 Vt. 727, 1883 Vt. LEXIS 144 (1883).

Where specific performance of contract was sought to be enforced in chancery, and defendant desired to avoid such performance, on ground that contract was by parol, and therefore within Statute of Frauds, he was required to make this objection by plea or answer, otherwise he would be deemed to waive it. Adams v. Patrick, 30 Vt. 516, 1858 Vt. LEXIS 63 (1858).

—Affirmative defenses.

Where, under rule, Statute of Frauds was an affirmative defense and required to be pleaded, plaintiff who failed to plead it in response to counterclaim could not avail himself of the defense in either the lower court or Supreme Court. Frigon v. Whipple, 134 Vt. 376, 360 A.2d 69, 1976 Vt. LEXIS 680 (1976).

—Generally.

Affidavit by the sole member of a limited liability company taken in a federal court proceeding was not a repudiation of an existing contract, or an assertion that it was not binding because not in writing, but rather a denial that a contract was ever formed. As such, it did not provide the unambiguous recognition of the contract that was required to satisfy the Statute of Frauds. Stonewall of Woodstock Corp. v. Stardust 11TS, LLC, 2018 VT 79, 208 Vt. 97, 195 A.3d 1111, 2018 Vt. LEXIS 113 (2018).

E-mails from the attorney for the sole member of a limited liability company (LLC) could not supply the signed writing required by the Statute of Frauds because the attorney was not authorized in writing to conclude the real estate sale on behalf of the member or the LLC. Stonewall of Woodstock Corp. v. Stardust 11TS, LLC, 2018 VT 79, 208 Vt. 97, 195 A.3d 1111, 2018 Vt. LEXIS 113 (2018).

A written offer that is orally accepted may constitute a sufficient memorandum of the contract under this section provided the offeror is the party to be charged. Benya v. Stevens & Thompson Paper Co., 143 Vt. 521, 468 A.2d 929, 1983 Vt. LEXIS 563 (1983).

To comply with statute, written memorandum must either by its own language or by reference to something else, contain such description of contract actually made as obviates necessity of resorting to oral evidence in order to supply any terms of contract essential to its validity. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956); Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

If any of these essential terms are altered by contact not in writing, entire contract is thereby reduced to grade of mere unwritten contract, upon which statute expressly declares that no action shall be maintained. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956); Dana & Henry v. Hancock, 30 Vt. 616, 1858 Vt. LEXIS 83 (1858).

Written offer accepted by parol may constitute sufficient memorandum of contract to satisfy statute, provided person making offer is party to be charged. First Nat'l Bank v. Laperle, 117 Vt. 144, 86 A.2d 635, 1952 Vt. LEXIS 115 (1952).

An exception in deed of land by vendor to third person, of timber upon it, which he had previously sold to vendee, was not such a memorandum of contract, as was required by statute, to make it valid as contract. Buck v. Pickwell, 27 Vt. 157, 1854 Vt. LEXIS 112 (1854).

II. PROMISE OF EXECUTOR OR ADMINISTRATOR.
Expenses of estate.

Express promise of administrator to pay for expense of building fence was void unless made in writing. Cummings v. Brock, 56 Vt. 308, 1883 Vt. LEXIS 116 (1883).

Heirs, promise to pay.

Promise of executor to pay $5,000 to one of testator’s heirs-at-law, who received nothing under will, in consideration that he would forbear further opposition to probate of will, claimed to have been made as it was through undue influence, was not within statute. Bellows v. Sowles, 57 Vt. 164 (1884), same case 55 Vt. 391, 59 Vt. 63, 7 A. 542. 38 A.L.R. 741, 55 A.L.R. 818.

Individual capacity.

Where an executor contracted for services which were for benefit of estate without limiting his liability, he bound himself in his individual capacity, and debt thus contracted was not debt of said estate, and was not within clause relative to “special promise of an executor or administrator to answer damages out of his own estate.” Reynolds-McGinness Co. v. Green, 78 Vt. 28, 61 A. 556, 1905 Vt. LEXIS 77 (1905).

III. DEBT, DEFAULT, OR MISDOINGS OF ANOTHER.
Generally.

As a general rule, an oral promise to pay the debt of another is unenforceable under this section if the original debtor remains liable after the promise is made. Lussier v. North Troy Engineering Co., 149 Vt. 486, 544 A.2d 1173, 1988 Vt. LEXIS 47 (1988).

Statute of Frauds was inapplicable as an affirmative defense to action on unpaid loans, where plaintiff sought to enforce a promise to satisfy debt payments through resale of land. Cameron v. Burke, 153 Vt. 565, 572 A.2d 1361, 1990 Vt. LEXIS 16 (1990).

Provision is applicable only where promise is to pay the debt of another, not where it is to pay debt of promisor. Newport Grain Store v. Bergeron, 115 Vt. 283, 57 A.2d 123, 1948 Vt. LEXIS 67 (1948); Trow v. Braley, 56 Vt. 560, 1884 Vt. LEXIS 94 (1884).

Debtor cannot rely on parol agreement of another to pay his debt, such agreement being within statute, but he must show in addition an actual substitution of third person for himself by an arrangement of all parties, or an actual compliance with terms of agreement; willingness to pay as agreed by third person, and to receive the same of him by the creditor, is not sufficient. Buchanan v. Paddleford, 43 Vt. 64, 1870 Vt. LEXIS 47 (1870).

Waiver of promise to pay debt of another that was without consideration and within statute, or refusal to receive such payment, did not discharge original debtor. Rising v. Cummings, 47 Vt. 345, 1875 Vt. LEXIS 26 (1875).

Ancillary promise.

When promise is ancillary to, and in aid of promise of another, it is within statute. Newell v. Ingraham, 15 Vt. 422, 1843 Vt. LEXIS 63 (1843).

Antenuptial debt.

Naked parol promise of husband, made prior or during coverture, to pay antenuptial debt of his wife, she not having been discharged or released from its payment, was within statute. Cole v. Shurtleff, 41 Vt. 311, 1868 Vt. LEXIS 118 (1868).

Auxiliary contract.

When new contract is made by third person, auxiliary to subsisting contract, it must be in writing. Sinclair v. Richardson, 12 Vt. 33, 1840 Vt. LEXIS 6 (1840).

Bill of exchange.

Parol acceptance of bill of exchange was not within statute. Montgomery Ward & Co. v. Newman, 104 Vt. 115, 157 A. 824, 1932 Vt. LEXIS 126 (1932); Arnold v. Sprague, 34 Vt. 402, 1861 Vt. LEXIS 73 (1861).

Consideration.

Statute does not require that consideration of written promise to answer for debt, default, or miscarriage of third person shall appear in writing. Smith v. Ide, 3 Vt. 290, 1830 Vt. LEXIS 72 (1830).

—Generally.

Issue of whether a special promise to answer for the debt, default or misdoings of another is original and not under the Statute of Frauds, or whether it is collateral, is usually a factual issue, and the new promise is original if it contemplates a discharge of the first contracting party and substitution of the party involved in the new contract. Pike Indus., Inc. v. Middlebury Associates, 136 Vt. 588, 398 A.2d 280, 1979 Vt. LEXIS 921 (1979).

This section applies to, inter alia, a special promise to answer for the debt, default or misdoings of another; an original promise, however, is unaffected by this section, and thus can be oral. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

A promise is original and not within this section when leading object of promisor is to subserve some interest or purpose of his own notwithstanding that effect is to pay or discharge debt of another. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

Oral assurances by producers to pay debts of joint venture formed by them to operate cheese processing plant was an “original promise” unaffected by this section when such oral assurances enabled producers to continue legally disposing of whey after joint venture breached its agreement with hauler. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

An original promise to answer for the debt of another is enforceable because it is supported by new consideration, that is the promise must benefit or operate as an advantage to the party making it; a collateral promise is unenforceable because it is simply gratuitous. Lussier v. Stevens, 153 Vt. 362, 571 A.2d 666, 1989 Vt. LEXIS 250 (1989).

If oral promise is original, Statute of Frauds does not prevent recovery, but if collateral, statute is bar. Enos v. Owens Slate Co., 104 Vt. 329, 160 A. 185 (1931), same case 107 Vt. 125, 176 A. 121; Keyes & Co. v. Allen, 65 Vt. 667, 27 A. 319, 1893 Vt. LEXIS 112 (1893); Greene v. Burton, 59 Vt. 423, 10 A. 575 (1887); Eddy v. Davidson, 42 Vt. 56, 1869 Vt. LEXIS 39 (1869); Bradley v. Richardson, 23 Vt. 720, 3 F. Cas. 1159, 1851 U.S. App. LEXIS 388 (1851); Peck v. Thompson, 15 Vt. 637, 1843 Vt. LEXIS 101 (1843).

To bring case within provision of statute, it is necessary that undertaking should be collateral to liability of another. Eddy v. Davidson, 42 Vt. 56, 1869 Vt. LEXIS 39 (1869); Steele v. Towne, 28 Vt. 771, 1856 Vt. LEXIS 122 (1856); Wainwright v. Straw, 15 Vt. 215, 1843 Vt. LEXIS 33 (1843).

When by accession and agreement of all parties interested, original or intermediate debt is extinguished, promise to pay amount thereof to third party is not promise to answer for debt of another within statute, as no such debt exists, it being new, original, and independent engagement, founded on merger and extinguishment of pre-existing debt or demand. Williams v. H.A. Little & Co., 35 Vt. 323, 1862 Vt. LEXIS 44 (1862); Templeton v. Bascom, 33 Vt. 132, 1860 Vt. LEXIS 78 (1860).

As general rule, verbal promise to pay debt of another is collateral and within statute if debtor continues liable after promise is made. Conti v. Johnson, 91 Vt. 467, 100 A. 874, 1917 Vt. LEXIS 268 (1917).

Where plaintiff claimed to recover payment from defendant for services rendered third person, and it appeared, that defendant, previous to rendition of services, promised to be responsible for the amount, and plaintiff supposed he was working for defendant, and charged his services to defendant, undertaking of defendant was original, and not collateral, and he was liable to plaintiff for amount of his account. Arbuckle v. Hawks, 20 Vt. 538, 1848 Vt. LEXIS 74 (1848).

Promise of assignee to keep assigned property for benefit and security of certain sureties of assignor was original undertaking and not within statute. Merrill v. Englesby, 28 Vt. 150, 1855 Vt. LEXIS 152 (1855).

An undertaking that if A. would work for B., defendant would pay him if B, did not, was within statute. Aldrich v. Jewell, 12 A. 125 (1840).

Consideration.

In determining whether a subsequent oral promise to pay a debt constitutes an original contract unaffected by this section, rather than a collateral promise to an original contract unenforceable under subdivision (2) of this section, court must look to see if there was new consideration to support the agreement; if new consideration exists, the contract is considered an original agreement. Lussier v. North Troy Engineering Co., 149 Vt. 486, 544 A.2d 1173, 1988 Vt. LEXIS 47 (1988).

Where corporation agreed to pay plaintiff a finder’s fee for locating a bank which the corporation could purchase, and the corporation’s sole stockholder orally promised to pay plaintiff’s fee if the corporation did not, stockholder’s promise constituted a collateral promise to the original contract, unenforceable under subdivision (2) of this section, rather than an original contract, since it would not benefit the stockholder in any way that was not already established by the original contract. Lussier v. North Troy Engineering Co., 149 Vt. 486, 544 A.2d 1173, 1988 Vt. LEXIS 47 (1988).

Where oral promise is original, based on valuable consideration between promisor and promisee, and not collateral to original debt, case is not within statute, provided it affirmatively appears that consideration is one which operates to advantage of promisor. Johnson v. Samson Est., 113 Vt. 38, 29 A.2d 919, 1943 Vt. LEXIS 130 (1943).

Promise to pay debt of another is not within statute and need not be in writing, if it is based upon valuable consideration independent of original debt, moving between the parties to new promise, or even from original debtor to promissor; and when such consideration exists, it makes no difference in regard to application of statute, whether original debtor remains liable or not. Cross v. Richardson, 30 Vt. 641, 1858 Vt. LEXIS 88 (1858); Wait v. Ex'r of Wait, 28 Vt. 350, 1856 Vt. LEXIS 37 (1856); French v. Thompson, 6 Vt. 54, 1834 Vt. LEXIS 11 (1834).

Discharge of original debt is sufficient consideration for new promise by another to pay it, and new promise is not within statute, but is an independent contract and provable as such. F.I. Somers & Sons v. LeClerc, 110 Vt. 408, 8 A.2d 663, 1939 Vt. LEXIS 159 (1939).

Subsequent promise of defendant to pay plaintiff, for which there was no consideration, could not convert such collateral undertaking into an original one. Steele v. Towne, 28 Vt. 771, 1856 Vt. LEXIS 122 (1856).

Contractor.

Where owner orally promises subcontractor to pay him for work done by him on house, if principal contractor does not, and thereafter owner withholds amount due subcontractor from contract price paid the principal contractor, oral promise is not within statute of frauds, for owner is in position of one who holds property or funds of a debtor for application to demand against him. Pocket v. Almon, 90 Vt. 10, 96 A. 421, 1916 Vt. LEXIS 228 (1916).

Future labor.

Promise to laborer to pay for future labor for which another person had contracted but has defaulted is not within statute where labor is performed solely on credit of promissor who has primary beneficial interest in performance of contract. Rozelle v. Caledonia Sand & Gravel Co., 120 Vt. 246, 138 A.2d 619, 1958 Vt. LEXIS 100 (1958).

—Generally.

Guaranty of a future liability is within statute. Mead, Mason & Co. v. Watson, 57 Vt. 426, 1885 Vt. LEXIS 74 (1885).

Indemnity.

Subdivision (2) of this section did not apply to defendant’s oral promise to pay one-half of any judgment recovered by grantor of real estate in action against both parties where context in which promise was made supported inference that parties’ agreement to share losses was motivated by achieving a stronger defense through mutual cooperation and, barring a win, spreading the risk of loss. Lussier v. Stevens, 153 Vt. 362, 571 A.2d 666, 1989 Vt. LEXIS 250 (1989).

If promise of indemnity is not collateral to liability of some other person to same party to whom promise is made, it is not within statute, and in absence of all evidence that there was liability of any other person to plaintiff, to which defendant’s promise of indemnity could have been collateral, it must be treated as an original promise. Adm'rs of Beaman v. Russell, 20 Vt. 205, 1848 Vt. LEXIS 21 (1848).

Where plaintiff, as administrator of an estate, delivered all assets of estate in his hands to defendant, in consideration of defendant’s parol promise to pay all claims that might thereafter arise against plaintiff as such administrator, defendant’s promise was not within statute. Randall v. Kelsey, 46 Vt. 158, 1873 Vt. LEXIS 86 (1873).

Intent.

Whether oral promise to pay was original or collateral is largely question of intent, to be gathered from language used by parties, judged by consideration of their situation, and all circumstances surrounding transaction. Enos v. Owens Slate Co., 104 Vt. 329, 160 A. 185 (1931), same case 107 Vt. 125, 176 A. 121.

That form of expression used in oral promise to pay ordinarily imports collateral undertaking, is not necessarily conclusive of its legal effect. Enos v. Owens Slate Co., 104 Vt. 329, 160 A. 185 (1931), same case 107 Vt. 125, 176 A. 121.

Mortgage, removal of.

Parol agreement by vendor with vendee of land, to remove mortgage thereon, given to secure debt of another, was not within statute and was founded on sufficient consideration. Green v. Randall, 51 Vt. 67, 1878 Vt. LEXIS 123 (1878).

Novation of contract.

In contract of novation, new promise is not within statute, but is an independent contract and provable as such. Peters v. Estate of Poro, 96 Vt. 95, 117 A. 244, 1922 Vt. LEXIS 128 (1922).

Pauper’s support.

Promise of overseer to plaintiff, to take good care of pauper, and that if the latter did not pay him, he, overseer, would see that he had his pay, was held to be an original promise, not within the Statute of Frauds, and was binding upon town. Blodgett v. Lowell, 33 Vt. 174, 1860 Vt. LEXIS 88 (1860).

Physician’s services.

Where defendant made direct verbal promise to pay physician for services rendered to another, such promise was primary and original and statute did not apply to a contract based thereon. Lawrence v. Anderson, 108 Vt. 176, 184 A. 689, 1936 Vt. LEXIS 170 (1936).

Premiums.

Where trustees, who were agents of the defendant, orally guaranteed to policy holders payment of unearned premiums in case of cancellation by defendant, and received from defendant commission in view of such guaranties, guaranties were unenforceable, as within statute. Garfield v. Rutland Inc. Co., 69 Vt. 549, 38 A. 235, 1897 Vt. LEXIS 102 (1897).

Question for jury.

Whether new contract was collateral or independent was question of fact for jury. Sinclair v. Richardson, 12 Vt. 33, 1840 Vt. LEXIS 6 (1840).

Where truckman who had been hauling slate from quarry for slate company ceased work because unable to get his pay, but recommenced work after oral promise of representative of company owning quarry to see that truckman would get his money, in action of contract against such quarry company for slate hauled after such promise, evidence was sufficient to make question for jury whether promise of quarry company was original so as to bind it, or merely collateral and thus coming under statute. Enos v. Owens Slate Co., 107 Vt. 125, 176 A. 121 (1934), same case 104 Vt. 329, 160 A. 185, 20 A.L.R.2d 250, 270.

Terms imposed by court.

Where court of chancery imposed terms upon party under their rules, and solicitor of party amerced promised solicitor of other party that he would pay amount imposed, if he would consent to entry “terms complied with,” such promise was sufficient consideration, and was not required by statute to be in writing. Sampson v. Swift, 11 Vt. 315, 1839 Vt. LEXIS 77 (1839).

Work by subcontractor.

Oral promise by owners to pay for work done on house by subcontractor was not within statute where promise was primary or original, and not secondary or collateral. Pocket v. Almon, 90 Vt. 10, 96 A. 421, 1916 Vt. LEXIS 228 (1916).

—Generally.

Oral promise to pay another’s debt out of debtor’s funds when they came into hands of promisor, in consideration of creditor’s agreement to refrain from suing upon debt and trusteeing funds before they were paid to promisor, was not within statute. Pirie v. Granite Sav. Bank & Trust Co., 91 Vt. 304, 100 A. 676, 1917 Vt. LEXIS 248 (1917).

Where debtor placed property of any kind in hands of third person and that person promised to pay debt, such promise was not within statute. Bailey v. Bailey, 56 Vt. 398, 1883 Vt. LEXIS 132 (1883).

—Generally.

Issue of whether a special promise to answer for the debt, default or misdoings of another is original and not under the Statute of Frauds, or whether it is collateral, is usually a factual issue, and the new promise is original if it contemplates a discharge of the first contracting party and substitution of the party involved in the new contract. Pike Indus., Inc. v. Middlebury Associates, 136 Vt. 588, 398 A.2d 280, 1979 Vt. LEXIS 921 (1979).

This section applies to, inter alia, a special promise to answer for the debt, default or misdoings of another; an original promise, however, is unaffected by this section, and thus can be oral. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

A promise is original and not within this section when leading object of promisor is to subserve some interest or purpose of his own notwithstanding that effect is to pay or discharge debt of another. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

Oral assurances by producers to pay debts of joint venture formed by them to operate cheese processing plant was an “original promise” unaffected by this section when such oral assurances enabled producers to continue legally disposing of whey after joint venture breached its agreement with hauler. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

An original promise to answer for the debt of another is enforceable because it is supported by new consideration, that is the promise must benefit or operate as an advantage to the party making it; a collateral promise is unenforceable because it is simply gratuitous. Lussier v. Stevens, 153 Vt. 362, 571 A.2d 666, 1989 Vt. LEXIS 250 (1989).

If oral promise is original, Statute of Frauds does not prevent recovery, but if collateral, statute is bar. Enos v. Owens Slate Co., 104 Vt. 329, 160 A. 185 (1931), same case 107 Vt. 125, 176 A. 121; Keyes & Co. v. Allen, 65 Vt. 667, 27 A. 319, 1893 Vt. LEXIS 112 (1893); Greene v. Burton, 59 Vt. 423, 10 A. 575 (1887); Eddy v. Davidson, 42 Vt. 56, 1869 Vt. LEXIS 39 (1869); Bradley v. Richardson, 23 Vt. 720, 3 F. Cas. 1159, 1851 U.S. App. LEXIS 388 (1851); Peck v. Thompson, 15 Vt. 637, 1843 Vt. LEXIS 101 (1843).

To bring case within provision of statute, it is necessary that undertaking should be collateral to liability of another. Eddy v. Davidson, 42 Vt. 56, 1869 Vt. LEXIS 39 (1869); Steele v. Towne, 28 Vt. 771, 1856 Vt. LEXIS 122 (1856); Wainwright v. Straw, 15 Vt. 215, 1843 Vt. LEXIS 33 (1843).

When by accession and agreement of all parties interested, original or intermediate debt is extinguished, promise to pay amount thereof to third party is not promise to answer for debt of another within statute, as no such debt exists, it being new, original, and independent engagement, founded on merger and extinguishment of pre-existing debt or demand. Williams v. H.A. Little & Co., 35 Vt. 323, 1862 Vt. LEXIS 44 (1862); Templeton v. Bascom, 33 Vt. 132, 1860 Vt. LEXIS 78 (1860).

As general rule, verbal promise to pay debt of another is collateral and within statute if debtor continues liable after promise is made. Conti v. Johnson, 91 Vt. 467, 100 A. 874, 1917 Vt. LEXIS 268 (1917).

Where plaintiff claimed to recover payment from defendant for services rendered third person, and it appeared, that defendant, previous to rendition of services, promised to be responsible for the amount, and plaintiff supposed he was working for defendant, and charged his services to defendant, undertaking of defendant was original, and not collateral, and he was liable to plaintiff for amount of his account. Arbuckle v. Hawks, 20 Vt. 538, 1848 Vt. LEXIS 74 (1848).

Promise of assignee to keep assigned property for benefit and security of certain sureties of assignor was original undertaking and not within statute. Merrill v. Englesby, 28 Vt. 150, 1855 Vt. LEXIS 152 (1855).

An undertaking that if A. would work for B., defendant would pay him if B, did not, was within statute. Aldrich v. Jewell, 12 A. 125 (1840).

—Generally.

Guaranty of a future liability is within statute. Mead, Mason & Co. v. Watson, 57 Vt. 426, 1885 Vt. LEXIS 74 (1885).

—Generally.

Oral promise to pay another’s debt out of debtor’s funds when they came into hands of promisor, in consideration of creditor’s agreement to refrain from suing upon debt and trusteeing funds before they were paid to promisor, was not within statute. Pirie v. Granite Sav. Bank & Trust Co., 91 Vt. 304, 100 A. 676, 1917 Vt. LEXIS 248 (1917).

Where debtor placed property of any kind in hands of third person and that person promised to pay debt, such promise was not within statute. Bailey v. Bailey, 56 Vt. 398, 1883 Vt. LEXIS 132 (1883).

IV. CONSIDERATION OF MARRIAGE.
Conveyance against creditors.

Oral antenuptial agreement of debtor to pay his wife $5,000, not being enforceable because of the statute of frauds, was not sufficient consideration for conveyance to her as against his creditors, although it was made for purpose of raising money, and she refused to execute a mortgage therefor unless it was made to her. Jones v. Williams, 94 Vt. 175, 109 A. 803, 1920 Vt. LEXIS 187 (1920).

Part performance.

Marriage was not part performance of antenuptial agreement to pay his wife $5,000, and did not take it out of statute. Jones v. Williams, 94 Vt. 175, 109 A. 803, 1920 Vt. LEXIS 187 (1920).

Reduction to writing.

Oral antenuptial contract, by being reduced to writing after marriage, was taken out of statute, and could be enforced. Smith & Nye v. Munsell, 94 Vt. 201, 110 A. 12, 1920 Vt. LEXIS 191 (1920).

Validity of contract.

Oral contract in consideration of marriage was not illegal or void, statute only affecting matter of evidence by which such contract may be proved. Smith & Nye v. Munsell, 94 Vt. 201, 110 A. 12, 1920 Vt. LEXIS 191 (1920).

V. PERFORMANCE NOT TO BE WITHIN YEAR.
Generally.

Memorandum in writing is necessary only when it appears by whole tenor of agreement that it is not to be performed within year. Blanchard v. Weeks, 34 Vt. 589, 1861 Vt. LEXIS 101 (1861).

Where verbal contract is to be performed within year by one party, but not by other, question whether statute applies or not depends on whether suit is brought against party who was to perform his part within year, and if it is so brought, statute would not apply, but if brought against party whose agreement was not to be performed within year, then statute would be bar. Sheehy v. Adarene, 41 Vt. 541, 1869 Vt. LEXIS 4 (1869).

Even when contract in terms extended beyond one year, if obligation to pay on one side depended on use conceded by other, party who had enjoyed such use for succession of years could not defeat action for stipulated compensation for that time on ground of statute. Sherman v. Champlain Transp. Co., 31 Vt. 162, 1858 Vt. LEXIS 124 (1858).

Clearing land.

Contract to clear 80 acres of land—ten acres the first year, and then five each year—was within statute, as it was not to be performed within year. Sheldon v. Preva, 57 Vt. 263, 1884 Vt. LEXIS 28 (1884).

Complete performance.

In an action in which plaintiff alleged that an oral agreement required plaintiff to transfer his ownership of a quarry to a slate company and that the agreement required defendants to grant plaintiff a one-half interest in the slate company after two years, dismissal of the breach of contract claim based on 12 V.S.A. § 181(4) or (5) of the Statute of Frauds was unwarranted because plaintiff alleged that he performed his part of the bargain in full. Harrison v. Hill, 2008 U.S. Dist. LEXIS 56076 (D. Vt. July 23, 2008).

Complete performance by one of the parties to an alleged oral agreement takes the agreement out of the one-year provision of subdivision (4) of this section. Mason v. Anderson, 146 Vt. 242, 499 A.2d 783 (1985), overruling Parks v. Francis’s Administrator (1878) 50 Vt. 626, 1878 Vt. LEXIS 24.

Contract for care.

Where contract between sister and brother whereby sister was to care for their mother, and brother was to pay her therefor, was personal contract of sister, to be performed by her alone and not binding upon her representative or any other person, and terminated at death of either mother or sister unless sooner ended in some legal way, so that it might be fully performed within one year, statute did not apply thereto. Lawrence v. Stewart, 109 Vt. 333, 196 A. 750, 1938 Vt. LEXIS 139 (1938).

Definitions.

Word “performed” meant full performance or complete execution. Squire v. Whipple, 1 Vt. 69, 1826 Vt. LEXIS 7 (1826).

Election or contingency.

When consummation of contract depends on election of one party or any other contingency, which may happen within year, such contract is not within statute. Sherman v. Champlain Transp. Co., 31 Vt. 162, 1858 Vt. LEXIS 124 (1858).

—Generally.

If agreement was not to be performed within one year, no recovery could be had upon it, although that which formed consideration of agreement was to have been, and was paid or performed within that period; and no recovery could be had for or on consideration so paid or performed unless it enured to benefit of defendant. Pierce v. Estate of Paine, 28 Vt. 34 (1855), same case 34 Vt. 229, 59 A.L.R. 1306, 6 A.L.R.2d 1121.

Where contract was to be performed, in part within one year, and in part thereafter, whole was void by force of statute. Foote & Stone v. Emerson, 10 Vt. 338, 1838 Vt. LEXIS 73 (1838).

Work and labor.

Where contract for work and labor was to be begun, but not completed within one year from making thereof, it was within statute. Hinckley v. Southgate, 11 Vt. 428, 1839 Vt. LEXIS 94 (1839).

—Generally.

Nature of the undertaking governs applicability of the Statute of Frauds, not the capacity to comply, so that where, by its terms, oral promise could be performed within one year, promisor’s argument that due to his strained financial position he was not capable of performing within a year was to no avail. Frigon v. Whipple, 134 Vt. 376, 360 A.2d 69, 1976 Vt. LEXIS 680 (1976).

Where it was orally promised that loan made in May, 1969, would be repaid either in January of 1970, or upon receipt of borrower’s tax refund for the taxable year 1969, either alternative was sufficient to take promise out of the Statute of Frauds, as by its terms the agreement was capable of being performed within one year. Frigon v. Whipple, 134 Vt. 376, 360 A.2d 69, 1976 Vt. LEXIS 680 (1976).

Where money was loaned for a “long period of time,” the repayment could have been within a year and the Statute of Frauds did not apply; and that the time of performance was uncertain or could have extended beyond a year did not make the statute applicable. Bonfanti v. Ayers, 134 Vt. 421, 365 A.2d 268, 1976 Vt. LEXIS 693 (1976).

Oral agreement which, according to intention of parties, as shown by terms of contract, may be fully performed within a year from the time it is made, is not within statute, although time of its performance is uncertain, and may probably extend, and be expected by parties to extend beyond year; and this rule applies to a particular contract although in fact performance is not had within the year. Beattie v. Traynor, Adm’r, 114 Vt. 495, 49 A.2d 200 (1946), same case 114 Vt. 238 42 A.2d 435, 31 A.L.R.2d 994, 1008, 1017, 49 A.L.R.2d 1294; Blanchard v. Weeks, 34 Vt. 589, 1861 Vt. LEXIS 101 (1861).

—Generally.

If agreement was not to be performed within one year, no recovery could be had upon it, although that which formed consideration of agreement was to have been, and was paid or performed within that period; and no recovery could be had for or on consideration so paid or performed unless it enured to benefit of defendant. Pierce v. Estate of Paine, 28 Vt. 34 (1855), same case 34 Vt. 229, 59 A.L.R. 1306, 6 A.L.R.2d 1121.

Where contract was to be performed, in part within one year, and in part thereafter, whole was void by force of statute. Foote & Stone v. Emerson, 10 Vt. 338, 1838 Vt. LEXIS 73 (1838).

—Generally.

Nature of the undertaking governs applicability of the Statute of Frauds, not the capacity to comply, so that where, by its terms, oral promise could be performed within one year, promisor’s argument that due to his strained financial position he was not capable of performing within a year was to no avail. Frigon v. Whipple, 134 Vt. 376, 360 A.2d 69, 1976 Vt. LEXIS 680 (1976).

Where it was orally promised that loan made in May, 1969, would be repaid either in January of 1970, or upon receipt of borrower’s tax refund for the taxable year 1969, either alternative was sufficient to take promise out of the Statute of Frauds, as by its terms the agreement was capable of being performed within one year. Frigon v. Whipple, 134 Vt. 376, 360 A.2d 69, 1976 Vt. LEXIS 680 (1976).

Where money was loaned for a “long period of time,” the repayment could have been within a year and the Statute of Frauds did not apply; and that the time of performance was uncertain or could have extended beyond a year did not make the statute applicable. Bonfanti v. Ayers, 134 Vt. 421, 365 A.2d 268, 1976 Vt. LEXIS 693 (1976).

Oral agreement which, according to intention of parties, as shown by terms of contract, may be fully performed within a year from the time it is made, is not within statute, although time of its performance is uncertain, and may probably extend, and be expected by parties to extend beyond year; and this rule applies to a particular contract although in fact performance is not had within the year. Beattie v. Traynor, Adm’r, 114 Vt. 495, 49 A.2d 200 (1946), same case 114 Vt. 238 42 A.2d 435, 31 A.L.R.2d 994, 1008, 1017, 49 A.L.R.2d 1294; Blanchard v. Weeks, 34 Vt. 589, 1861 Vt. LEXIS 101 (1861).

VI. SALE OF LANDS OR INTEREST THEREIN.
Adverse possession.

Where an interest in land was alleged to have arisen by adverse possession, the Statute of Frauds was not a bar to the admission of parol evidence concerning the transactions that showed when possession became adverse. Lawrence v. Pelletier, 154 Vt. 29, 572 A.2d 936, 1990 Vt. LEXIS 18 (1990).

—Generally.

Statute provides mode and means by which an agent shall receive authority to make a contract or agreement relating to sale of land, etc., and he cannot be authorized by any other mode, unless statute is waived. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Statute is good defense to an executory contract for sale of lands owned by husband and wife where contract was signed by husband alone and without proper authorization from wife. Hathaway v. Fernandez, 117 Vt. 234, 89 A.2d 117, 1952 Vt. LEXIS 129 (1952).

When landowners’ attorney in fact told purchasers that he had no legal right to convey owners’ land to them but that he would try to make it as legal as possible under power of attorney in fact and purchasers had common intention of making out a deed that would create an illusion of title so that purchasers might finance house trailer which they wished to place on the lot, it was inappropriate to give weight to considerations of reliance and prejudice in favor of purchasers who moved onto the land and made certain improvements. Campbell v. Blair, 127 Vt. 157, 241 A.2d 791, 1968 Vt. LEXIS 192 (1968).

Under statute, if wife was to be held as a joint contractor on executory contract for sale of real estate, she must have signed contract, either by her own hand or by agent duly authorized in writing, and she was not bound by such contract to which her husband signed her name in absence of proof that he had written authority so to do. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Fact that wife, whose husband without written authority signed her name to contract for sale of real estate, received copy of contract from her husband and filed it, that she was satisfied with contract and may have so informed her husband, and that she was willing to go on with it at time of trial of action for breach thereof, was held not to constitute waiver of defect therein under statute. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Wife was not estopped from setting up Statute of Frauds as defense by her acts and statements upon which plaintiff placed no reliance and of which he had no knowledge. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Husband did not waive any rights to rely on statute, nor was he estopped to assert them, because he said nothing about statute when he signed or thereafter. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

In suit for specific performance of an agreement for sale of land, made by one tenant in common thereof for himself and his co-tenant, evidence was to show that former had latter’s authority to sign written contract for sale of his interest in land. Vermont Marble Co. v. Mead, 85 Vt. 20, 80 A. 852, 1911 Vt. LEXIS 202 (1911).

Construction.

This section requires that for a contract for the sale of lands to be enforceable, the contract or some memorandum thereof must be in writing and signed by the party to be charged. Benya v. Stevens & Thompson Paper Co., 143 Vt. 521, 468 A.2d 929, 1983 Vt. LEXIS 563 (1983).

Statute, in reference to the sale of lands is applicable to actions brought to enforce rights dependent upon and resulting from contract, and in which it must be proved though not counted upon, and not merely to those actions in which contract must necessarily be set out in declaration. Buck v. Pickwell, 27 Vt. 157, 1854 Vt. LEXIS 112 (1854).

In order to hold sellers of land at auction to specific performance of their agreement to convey, they must either have personally signed a written agreement to sell, or have duly authorized in writing an agent to sign for them. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

This provision has been construed to require any ratification of the unauthorized act of an agent respecting a sale of an interest in lands to also be in writing. Campbell v. Blair, 127 Vt. 157, 241 A.2d 791, 1968 Vt. LEXIS 192 (1968).

—Generally.

Where change in closing date requested by the vendors of real property was, in effect, a counter-offer requiring purchaser’s assent, and counter-offer was never reduced to writing and forwarded to purchaser for her signature and formal consent before she declared transaction terminated, although she did generally agree to a change in date for closing, agreement in question could have no legal consequences until formally executed, and therefore, no enforceable contract incorporating the changed closing date existed. Evarts v. Forte, 135 Vt. 306, 376 A.2d 766, 1977 Vt. LEXIS 614 (1977).

A contract involving the sale of land is controlled by this section. North v. Simonini, 142 Vt. 482, 457 A.2d 285, 1983 Vt. LEXIS 415 (1983).

Purchase and sales agreement executed by plaintiff for purchase of land which differed materially from a counteroffer previously made by seller was not enforceable since seller, the party to be charged, never signed the proposed document and was not the offeror of the agreement. Benya v. Stevens & Thompson Paper Co., 143 Vt. 521, 468 A.2d 929, 1983 Vt. LEXIS 563 (1983).

The fact that defendants admitted to the existence of an oral contract involving the sale of land did not take the contract outside subdivision (5) of this section. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Interests in land created by the operation of law are not included in the term “contract for sale” in the Statute of Frauds. Lawrence v. Pelletier, 154 Vt. 29, 572 A.2d 936, 1990 Vt. LEXIS 18 (1990).

No action will lie on oral contract for sale of real estate. Bedell v. Tracy, 65 Vt. 494, 26 A. 1031, 1892 Vt. LEXIS 32 (1892).

Contract for sale of land, not being reduced to writing and signed by parties, was within statute. Welch v. Darling, 59 Vt. 136, 7 A. 547, 1886 Vt. LEXIS 10 (1886).

One may admit sale of land by verbal contract, and yet defend and action for specific performance by pleading Statute of Frauds. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Sales by auction, unless expressly exempted, are within statute of frauds. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Where plaintiff’s house being mortgaged, he entered into parol contract with defendant to purchase mortgage, sell house, and after satisfying the mortgage debt, costs, etc., to pay the balance to plaintiff, and defendant purchased as agreed, foreclosed, and sold house, plaintiff in reliance on contract allowing equity of redemption to expire, it was held that plaintiff in assumpsit could recover balance and that contract was not within statute, in that it was not for sale of lands or an interest in or concerning them. McGinnis v. Cook, 57 Vt. 36, 1885 Vt. LEXIS 42 (1885).

Agreement between plaintiff and defendant to purchase and sell real estate and divide profits from sale though not in writing, was not within statute. Bruce v. Hastings, 41 Vt. 380, 1868 Vt. LEXIS 131 (1868).

Division line between lands.

Acquiescence in a wrong boundary line will not establish it as the true boundary unless the demands of the statute of frauds or adverse possession are met. Haklits v. Oldenburg, 124 Vt. 199, 201 A.2d 690, 1964 Vt. LEXIS 83 (1964).

An award or arbitrators in reference to division line between adjoining lands owned by different proprietors made on submission by parol had same effect as a parol agreement between the parties in reference to the same line would have, and was within statute. Smith v. Bullock, 16 Vt. 592, 1844 Vt. LEXIS 133 (1844).

Equity of redemption.

Although agreement as to equity of redemption between the orators and defendant was oral, it appearing that the orators were willing and offered to redeem and that defendant refused to carry out the agreement, defendant is estopped in equity from denying the orator’s right to redeem, notwithstanding statute of frauds. Phelps v. Root, 78 Vt. 493, 63 A. 941, 1906 Vt. LEXIS 181 (1906).

Farm.

An oral agreement for sale of interest in farm was within statute. David v. Farr, 26 Vt. 592, 1854 Vt. LEXIS 55 (1854).

Where plaintiff and defendant made parol contract that former should convey to latter a farm for certain price, and that if plaintiff could within a year find a purchaser at higher price, defendant should convey the farm to such purchaser, and that plaintiff should have one-half the gain so made, contract was within statute. Ballard v. Bond, 32 Vt. 355, 1859 Vt. LEXIS 109 (1859).

Where one makes verbal contract for sale of his farm, and then repudiates it, he cannot invoke aid of statute to enable him to retain what he received under such contract. Gifford v. Willard, 55 Vt. 36, 1883 Vt. LEXIS 8 (1883).

Guaranty.

Contract of guaranty, being part of contract for sale of land, for an aggregate and indivisible consideration, was within statute, and being by parol, could not be enforced by action. Dyer v. Graves, 37 Vt. 369, 1864 Vt. LEXIS 110 (1864).

Lease.

Where evidence presented by lessor was sufficient for a jury to reasonably find that a lease proposal between lessor and lessee was an enforceable contract, the lease proposal could be proven to be a valid modification of the prior lease agreement, in writing and signed by the party to be charged in compliance with the statute of frauds. Heathcote Assocs. v. Chittenden Trust Co., 958 F. Supp. 182, 1997 U.S. Dist. LEXIS 3703 (D. Vt. 1997).

Oral agreement to extend written lease for one year would be inadmissible as within Statute of Frauds. Amsden v. Atwood, 68 Vt. 322, 35 A. 311 (1895), same case 67 Vt. 289, 31 A. 448.

In an action of “justice ejectment”, though there was no written agreement in respect of defendant’s occupancy of the premises in question, plaintiff could not insist on statute of frauds. Wheeler v. Wheeler, 77 Vt. 177, 59 A. 842, 1905 Vt. LEXIS 107 (1905).

Memorandum.

Where town and plaintiff orally contracted for the sale of land and plaintiff rejected deed because it reserved 2 of the 80 acres to town for a dump without providing that the two acres would revert to plaintiff upon discontinuance of the dump, letter by town to plaintiff, after town voted against the sale at the town meeting, describing the transaction, refusing to sell and not mentioning a reversionary interest, was not a memorandum of the agreement claimed by plaintiff and thus could not support specific performance or satisfy the Statute of Frauds. Bell v. Town of Grafton, 133 Vt. 1, 328 A.2d 408, 1974 Vt. LEXIS 274 (1974).

Written statements relative to the boundaries of certain land were held not sufficient as memorandum to answer requirements of statute, because they did not contain substantial terms of any contract for sale of land, or of an interest in land, expressed with such certainty that they might be understood from contract itself or from some writing to which it referred, without resorting to parol evidence. Vermont Marble Co. v. Eastman, 91 Vt. 425, 101 A. 151, 1917 Vt. LEXIS 267 (1917).

—Generally.

An exception to the rule that a contract involving the sale of land or interests therein must be in writing exists where a party demonstrates that he or she is equitably entitled to the claimed interest in land. In such cases, enforcement is justified on the ground that repudiation by one party after the other has fully performed amounts to a virtual fraud. Rappaport v. Estate of Banfield, 2007 VT 25, 181 Vt. 447, 924 A.2d 72, 2007 Vt. LEXIS 50 (2007).

Where defendant sold and delivered stoves to orator, for which orator paid him thousand dollars in money, and executed and tendered to him a deed of certain land that defendant agreed to, but would not take in payment of balance, contract was fulfilled and performed by orator, and nothing was left open for Statute of Frauds to operate upon. Adams v. Smilie, 50 Vt. 1, 1877 Vt. LEXIS 48 (1877).

In an action on contract for sale of certain standing timber, writing signed by plaintiff but not by defendants, whereby he sold them timber and gave them six months in which to remove it and under which they entered upon land and cut all timber involved in suit and removed some and left the rest, was admissible, as against statute, since defendants by entering and acting under writing adopted it and became bound by it as if they had signed it. Ross v. Hamilton, 95 Vt. 234, 113 A. 781, 1921 Vt. LEXIS 206 (1921).

Mortgage agreements.

Agreement to mortgage was within the Statute of Frauds. Chickering v. Brooks, 61 Vt. 554. Chickering v. Brooks, 61 Vt. 554, 18 A. 144, 1889 Vt. LEXIS 86 (1889).

Agreement by mortgagee that mortgagor may remain in possession until condition broken, or that he will reconvey premises upon payment of mortgage was not within statute. Mussey v. Bates, 65 Vt. 449, 27 A. 167, 1892 Vt. LEXIS 31 (1892).

Parol agreement by vendor with vendee of land, to remove mortgage thereon, given to secure the debt of another, was not within statute. Green v. Randall, 51 Vt. 67, 1878 Vt. LEXIS 123 (1878).

Agreement for execution of deed of release of portion of mortgaged premises from mortgage was agreement for the sale of land and within statute. Merrill v. Pease, 51 Vt. 556, 1879 Vt. LEXIS 123 (1879).

Option to buy.

Contract granting to another an option to buy land is an agreement concerning land, and is within Statute of Frauds. McGuirk v. Ward, 115 Vt. 221, 55 A.2d 610, 1947 Vt. LEXIS 105 (1947).

Part performance.

To fall within the exception to the rule that a contract involving the sale of land or interests therein must be in writing, it was necessary for plaintiff to show that: (1) there was an oral agreement (2) upon which he reasonably relied (3) by changing his position so that he could not be returned to his former position, and (4) the other party knew of such reliance. Rappaport v. Estate of Banfield, 2007 VT 25, 181 Vt. 447, 924 A.2d 72, 2007 Vt. LEXIS 50 (2007).

Where plaintiff who had acquired a deeded right of first refusal to purchase a lot owned by defendants failed to show that there was a separate and distinct oral agreement regarding the right of first refusal, that he made a substantial and irretrievable change in position in reliance on the agreement, or that he fully performed any obligations under the alleged agreement, and the undisputed evidence, viewed in plaintiff’s favor, was that both plaintiff and defendants misunderstood the terms of plaintiff’s deed, the trial court properly found enforcement of plaintiff’s claimed oral agreement barred by the Statute of Frauds. Rappaport v. Estate of Banfield, 2007 VT 25, 181 Vt. 447, 924 A.2d 72, 2007 Vt. LEXIS 50 (2007).

Where there is an oral contract for the sale of land, a purchasing party who is in possession of the land and who makes substantial improvements to the property is entitled to specific performance of the agreement, and this may take the oral contract out of the Statute of Frauds. Quenneville v. Buttolph, 2003 VT 82, 175 Vt. 444, 833 A.2d 1263, 2003 Vt. LEXIS 268 (2003).

Money payments or actions that are indistinguishable from those of a tenant responsible for the maintenance of the leased premises are not sufficient to remove the agreement from the requirements in the Statute of Frauds. Quenneville v. Buttolph, 2003 VT 82, 175 Vt. 444, 833 A.2d 1263, 2003 Vt. LEXIS 268 (2003).

Where vendor and vendee entered into an oral purchase agreement which provided that upon payment of entire purchase price a deed conveying summer camp was to be given to vendee, and thereafter vendee made down payment and was given possession of premises by vendor, it could not be said that possession of this type of property coupled with a fractional payment of the purchase price was such part performance as would take the oral contract out of the Statute of Frauds, nor was there any proof or finding of the elements essential to the intervention of a court of equity. Troy v. Hanifin, 132 Vt. 76, 315 A.2d 875, 1974 Vt. LEXIS 303 (1974).

Where facts supported lower court’s determination that activities of proposed purchased under oral contract for sale of land, in making improvements on the premises, were entirely assignable to his situation as licensee, there was no part performance removing the contract from the Statute of Frauds. Bell v. Town of Grafton, 133 Vt. 1, 328 A.2d 408, 1974 Vt. LEXIS 274 (1974).

Validation of oral contract to convey real estate, in spite of prohibition against enforcement found in Statute of Frauds, depends on doctrine of part performance and since real issue is change of position by party claiming relief in reliance on the oral agreement to such a measure that parties cannot be restored to reasonable equivalence to their former condition, it is a requirement that reliance be something beyond injury adequately compensable in money. Jasmin v. Alberico, 135 Vt. 287, 376 A.2d 32, 1977 Vt. LEXIS 610 (1977).

Although oral contract to convey real estate may be taken out of Statute of Frauds by party in possession having made substantial improvements, such improvements to property as repairing back porch, having gas piped to house, making electrical and plumbing repairs, doing some landscaping and installing two stoves for heating purposes were indistinguishable from activities of a tenant responsible for maintenance of leased premises and simply did not meet the test of a substantial and irretrievable change of position set out in the case law. Jasmin v. Alberico, 135 Vt. 287, 376 A.2d 32, 1977 Vt. LEXIS 610 (1977).

Such performance under an oral contract as will make it a fraud to apply the prohibition of this section supports equitable relief and makes the contract enforceable; and party seeking enforcement of the contract need not show he has been defrauded, but rather, that his acts in reliance upon the agreement, known to the other party to the agreement, so altered the relations of the parties as to prevent restoration to their former condition. Nichols v. Nichols, 139 Vt. 273, 427 A.2d 374, 1981 Vt. LEXIS 451 (1981).

Where, for many years, son and his wife fully performed their part of oral contract whereby mother agreed to convey to them the family farm if, during the remainder of her life, they would operate the farm and care for her, there was such performance under the oral contract as would make it a fraud to apply the prohibition of this section. Nichols v. Nichols, 139 Vt. 273, 427 A.2d 374, 1981 Vt. LEXIS 451 (1981).

The fact that plaintiffs made financing arrangements and conducted a title search did not make the doctrine of part performance applicable in an action for specific performance of an alleged oral agreement for the sale of land where defendants sets up subdivision (5) of this section as a defense. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Money payments on the purchase are not enough to give an oral agreement enforceable status, even coupled with possession, in the face of this section. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Part performance of contract will never enable party to sustain action at law in direct violation of terms of statute. McGuirk v. Ward, 115 Vt. 221, 55 A.2d 610, 1947 Vt. LEXIS 105 (1947); Hibbard v. Whitney, 13 Vt. 21, 1841 Vt. LEXIS 3 (1841).

Under Statute of Frauds, where consideration itself is executory and touching land, mere execution of agreement on the other side is not sufficient to take the case out of statute. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956).

Payment of purchase price by buyer is not by itself sufficient to remove case from statute. Carvage v. Stowell, 115 Vt. 187, 55 A.2d 188, 1947 Vt. LEXIS 98 (1947).

Where plaintiff had rendered services in part performance and consideration of parol contract for purchase of land, he could not rescind such contract and treat it as void and recover for said services unless defendant was unable or unwilling to proceed. Shaw v. Shaw, 6 Vt. 69, 1834 Vt. LEXIS 14 (1834).

Part performance as ground for relief in equity, see note 327.

Price.

Notwithstanding general terms of statute, when land has been sold and conveyed to purchaser, seller may maintain an action to recover price, though not evidenced by any writing, upon ground that all of contract which is required by statute to be in writing has been fully executed and performed and that promise to pay the money does not come within statute. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956).

Under statute, in absence of written memorandum, recovery of purchase price is allowed only when transaction has been otherwise fully executed. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956).

An action, which merely concerns the price of land, is not required, by the Statute of Frauds, to be sustained by evidence of an agreement in writing. Hodges v. Green, 28 Vt. 358, 1856 Vt. LEXIS 40 (1856); Thayer v. Viles & Atkins, 23 Vt. 494, 1851 Vt. LEXIS 56 (1851).

In contract for sale of real estate, a deed of which is executed and delivered, promise by purchaser to pay the consideration or furnish security for it, is not within statute and, if only by parol, an action may be maintained on it. Ascutney Bank v. Ormsby, 28 Vt. 721, 1856 Vt. LEXIS 110 (1856).

Procuring purchaser.

Where agreement between parties was not for the sale of land, but for the procuring of a purchaser for land, it did not fall within the strictures of the Statute of Frauds. Kelly v. Beaudoin, 131 Vt. 27, 298 A.2d 831, 1972 Vt. LEXIS 229 (1972).

Profit a prendre.

Profit a prendre is an interest in the land itself and within scope of statute. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848 (1956). See also note 322 infra.

Ratification.

Under Statute of Frauds, if an agent has oral authorization only, ratification must be in writing. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Written ratification of authority to execute contract need not be formal document, nor addressed or delivered to other party to contract, but is sufficient to satisfy statute if it recognizes existence of contract and either expressly or impliedly approves it. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Unauthorized sale by landowners’ attorney in fact of interest in owners’ land under power of attorney given by owners for limited purpose not including such a sale was invalid under this section in absence of any pleading or proof of an oral or written ratification of the sale by owners, and thus owners could not be held to have waived any objection to the purported sale. Campbell v. Blair, 127 Vt. 157, 241 A.2d 791, 1968 Vt. LEXIS 192 (1968).

Provision of this section requiring contract for sale of land to be in writing requires any ratification of the unauthorized act of an agent respecting a sale of an interest in lands to be in writing. Campbell v. Blair, 127 Vt. 157, 241 A.2d 791, 1968 Vt. LEXIS 192 (1968).

—Generally.

This section can be used as a defense to actions at law, but was not available where claim was based on fraud and sought equitable relief with respect to title to land. Stamato v. Quazzo, 139 Vt. 155, 423 A.2d 1201, 1980 Vt. LEXIS 1500 (1980).

Part performance of contract for sale of land is ground of relief in equity, and there court proceeds mainly on the basis of relief from fraud. McGuirk v. Ward, 115 Vt. 221, 55 A.2d 610, 1947 Vt. LEXIS 105 (1947); Hibbard v. Whitney, 13 Vt. 21, 1841 Vt. LEXIS 3 (1841).

Where contract was for sale of lands on both sides, and was not in writing, no action at law could ever be maintained upon it, and part performance of such a contract was ground of relief in equity only, and there, on principle of relieving from fraud. Hibbard v. Whitney, 13 Vt. 21, 1841 Vt. LEXIS 3 (1841).

Contract for sale of land was not taken out of statute by part performance, unless such performance be made under such circumstance as to amount to fraud, against which court of equity will relieve, nor even then unless such part performance be expressly stated in bill. Meach v. Stone, 1 D. Chip. 182 (Vt. 1814).

Removal of building.

Contract to take down building standing on land of plaintiff and re-erect frame on land of defendant was not within statute as sale of interest in land. Scales v. Wiley, 68 Vt. 39, 33 A. 771, 1895 Vt. LEXIS 9 (1895).

Specific performance.

The trial court did not abuse its discretion in awarding specific performance on an oral contract where its findings supported a determination that the prospective purchasers, in reliance on the agreement to purchase, suffered a substantial and irretrievable change in position. Quenneville v. Buttolph, 2003 VT 82, 175 Vt. 444, 833 A.2d 1263, 2003 Vt. LEXIS 268 (2003).

Where claimants alleged that they had an oral agreement with decedent such that they would receive 88 acres of farmland at her death if they cared for her and her home and paid her $350 per month and one-half the taxes on entire farm until her death, and that they fully performed under, and changed their position in various ways in reliance on, this agreement, it could not be held, as a matter of law, that these alleged facts did not rise to the level that would allow equity to enforce specific performance. In re Estate of Gorton, 167 Vt. 357, 706 A.2d 947, 1997 Vt. LEXIS 284 (1997).

Where specific performance of an oral contract to convey real estate is sought, the proponent of specific performance must establish an agreement enforceable in the face of Statute of Frauds, and if that burden is met, the contract is still subject to the standards for specific performance. Jasmin v. Alberico, 135 Vt. 287, 376 A.2d 32, 1977 Vt. LEXIS 610 (1977).

In action for specific performance of contract for sale of real estate, where plaintiff offered written memorandum of the oral contract of sale, signed by original administrator of estate, setting forth the terms of the contract, and also alleged, both in complaint and in answers to interrogatories, partial performance, and defendant in answer asserted that contract was oral and that claim was therefore barred by this section, facts took plaintiff’s case out of this section, rendered grant of summary judgment for defendant improper, and indicated as a matter of law that plaintiff was entitled to summary judgment. Martin v. Eaton, 140 Vt. 134, 436 A.2d 751, 1981 Vt. LEXIS 584 (1981).

When verbal purchase and payment for real estate is followed by possession, with consent of vendor, equity will treat case as without statute and decree conveyance. Whitcher v. Morey, 39 Vt. 459, 1867 Vt. LEXIS 34 (1867).

Where defendant relying on applicable provision of Statute of Frauds making oral contracts for sale of lands subject to evidentiary exclusion, plaintiff in bringing action for specific performance by defendant to purchase plaintiff’s filling station property, had to convince chancellor that equitable considerations justified taking contract out from under Statute of Frauds and then had to justify, as a seller, having contract specifically enforced. Towsley v. Champlain Oil Co., 127 Vt. 541, 254 A.2d 440, 1969 Vt. LEXIS 271 (1969).

Preparation of proposed transfer of title including arrangements to discharge incumbrances at time of sale, verification of the bounds of the lot were not the kind of imposition to support granting specific performance of contract against defendant. Towsley v. Champlain Oil Co., 127 Vt. 541, 254 A.2d 440, 1969 Vt. LEXIS 271 (1969).

In suit by plaintiff for specific performance of contract by defendant for sale of plaintiff’s filling station property, plaintiff had burden of showing that acts of his, done in reliance on the agreement and known to defendant, so altered relations of parties as to prevent restoration to their former condition. Towsley v. Champlain Oil Co., 127 Vt. 541, 254 A.2d 440, 1969 Vt. LEXIS 271 (1969).

Plaintiff, seeking specific performance of contract by defendant to purchase plaintiff’s filling station property, was bound to introduce evidence supporting proposition that insistence on the requirements of the Statute of Frauds would, in effect, be using that statute to promote, rather than prevent, fraud. Towsley v. Champlain Oil Co., 127 Vt. 541, 254 A.2d 440, 1969 Vt. LEXIS 271 (1969).

Payment of purchase price of real estate by buyer is not by itself sufficient to justify decree for specific performance and it is only when possession has been given and the contract so far performed that it would be fraud on purchaser to deny specific performance that such relief will be granted. Carvage v. Stowell, 115 Vt. 187, 55 A.2d 188, 1947 Vt. LEXIS 98 (1947).

Verbal contract for sale of standing trees will be specifically enforced by cross-bill, when contract is admitted in answer, and statute is not correctly pleaded. Battell v. Matot, 58 Vt. 271, 5 A. 479, 1885 Vt. LEXIS 34 (1885).

Where it is stated generally in bill to obtain specific performance that an agreement was made for the sale of land, defense of statute may be set up by plea, but benefit of statute must be claimed therein. Cooley v. Hatch, 97 Vt. 484, 124 A. 589, 1924 Vt. LEXIS 188 (1924).

In suit in equity to obtain specific performance of an oral promise to convey real estate, the burden is upon plaintiff to show that in reliance upon such agreement, and to the knowledge of defendant he has done such acts in part performance, as will take case out of statute and warrant court in decreeing specific performance; and where court cannot say, from facts reported, that such acts have been performed by plaintiff, decree will be refused. Cooley v. Hatch, 97 Vt. 484, 124 A. 589, 1924 Vt. LEXIS 188 (1924).

While in cases where there is an entire agreement for sale of real and personal estate whole contract might be rendered inoperative as to both, by means of statute, yet, in equity, though it may be otherwise at law, contract will, in many instances, when partly executed, be upheld. Smith v. Smith, 14 Vt. 440, 1842 Vt. LEXIS 77 (1842).

Where it appeared that oratrix went into possession of house and lot, and made substantial improvements thereon, under an oral contract with her son, who owned land, that she was to furnish the materials for building house, and he was to do part of the work, which he did, and also furnished some of materials for the house, and that premises should be conveyed to oratrix, and there was no finding that son had any claim for services nor for materials furnished, equity would decree specific performance against the son’s administrator, and statute was no defense. Gove v. Gove's Adm'r, 88 Vt. 115, 92 A. 10, 1914 Vt. LEXIS 196 (1914).

Where oratrix entered into parol contract for conveyance of house, paid for it and occupied the tenement in the upper story, without rent, for more than four years, agreeing that original owners should collect rent of the lower tenement for her, case was taken out of operation of statute and oratrix was entitled to decree for conveyance of premises and an accounting for rent. Holmes v. Caden, 57 Vt. 111, 1884 Vt. LEXIS 6 (1884).

Where defendant’s possession was not that of purchase and improvements resulting from his labor were not for his benefit, case lacked features essential to bring it within rule that under parol contract for sale of interest in land and there has been such part performance that purchaser cannot be compensated in damages, case is taken out of statute in equity, so that contract will be specifically enforced. Sheldon v. Preva, 57 Vt. 263, 1884 Vt. LEXIS 28 (1884).

Trees.

Agreement for sale of growing trees, with right in vendee to enter upon the land at a future time, to take and cut them off, as he might want them, was contract for sale of an interest in land, and unless it be in writing, no action could be maintained upon it; nor could it, in any way, be made available, as a contract, so long as it remained executory. Buck v. Pickwell, 27 Vt. 157, 1854 Vt. LEXIS 112 (1854).

While a contract for future growth of trees and beneficial use of land for that purpose, for series of years, or during the pleasure of the vendee, was contract relating to real estate, an ordinary purchase of stumpage by foot or cord, in contemplation of an early removal as chattels, would be different. Fitch v. Burk, 38 Vt. 683, 1866 Vt. LEXIS 49 (1866).

It was not necessary that there should be note or memorandum in writing of contract to cut down and clear away trees on plaintiff’s farm, since this section is confined to transfer of real estate, and words in this section, “or any interest therein, or concerning them”, do not extend statute to contracts respecting labor on lands. Forbes v. Hamilton, 2 Tyl. 356 (Vt. 1803).

—Generally.

Where change in closing date requested by the vendors of real property was, in effect, a counter-offer requiring purchaser’s assent, and counter-offer was never reduced to writing and forwarded to purchaser for her signature and formal consent before she declared transaction terminated, although she did generally agree to a change in date for closing, agreement in question could have no legal consequences until formally executed, and therefore, no enforceable contract incorporating the changed closing date existed. Evarts v. Forte, 135 Vt. 306, 376 A.2d 766, 1977 Vt. LEXIS 614 (1977).

A contract involving the sale of land is controlled by this section. North v. Simonini, 142 Vt. 482, 457 A.2d 285, 1983 Vt. LEXIS 415 (1983).

Purchase and sales agreement executed by plaintiff for purchase of land which differed materially from a counteroffer previously made by seller was not enforceable since seller, the party to be charged, never signed the proposed document and was not the offeror of the agreement. Benya v. Stevens & Thompson Paper Co., 143 Vt. 521, 468 A.2d 929, 1983 Vt. LEXIS 563 (1983).

The fact that defendants admitted to the existence of an oral contract involving the sale of land did not take the contract outside subdivision (5) of this section. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Interests in land created by the operation of law are not included in the term “contract for sale” in the Statute of Frauds. Lawrence v. Pelletier, 154 Vt. 29, 572 A.2d 936, 1990 Vt. LEXIS 18 (1990).

No action will lie on oral contract for sale of real estate. Bedell v. Tracy, 65 Vt. 494, 26 A. 1031, 1892 Vt. LEXIS 32 (1892).

Contract for sale of land, not being reduced to writing and signed by parties, was within statute. Welch v. Darling, 59 Vt. 136, 7 A. 547, 1886 Vt. LEXIS 10 (1886).

One may admit sale of land by verbal contract, and yet defend and action for specific performance by pleading Statute of Frauds. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Sales by auction, unless expressly exempted, are within statute of frauds. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Where plaintiff’s house being mortgaged, he entered into parol contract with defendant to purchase mortgage, sell house, and after satisfying the mortgage debt, costs, etc., to pay the balance to plaintiff, and defendant purchased as agreed, foreclosed, and sold house, plaintiff in reliance on contract allowing equity of redemption to expire, it was held that plaintiff in assumpsit could recover balance and that contract was not within statute, in that it was not for sale of lands or an interest in or concerning them. McGinnis v. Cook, 57 Vt. 36, 1885 Vt. LEXIS 42 (1885).

Agreement between plaintiff and defendant to purchase and sell real estate and divide profits from sale though not in writing, was not within statute. Bruce v. Hastings, 41 Vt. 380, 1868 Vt. LEXIS 131 (1868).

—Generally.

Statute provides mode and means by which an agent shall receive authority to make a contract or agreement relating to sale of land, etc., and he cannot be authorized by any other mode, unless statute is waived. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Statute is good defense to an executory contract for sale of lands owned by husband and wife where contract was signed by husband alone and without proper authorization from wife. Hathaway v. Fernandez, 117 Vt. 234, 89 A.2d 117, 1952 Vt. LEXIS 129 (1952).

When landowners’ attorney in fact told purchasers that he had no legal right to convey owners’ land to them but that he would try to make it as legal as possible under power of attorney in fact and purchasers had common intention of making out a deed that would create an illusion of title so that purchasers might finance house trailer which they wished to place on the lot, it was inappropriate to give weight to considerations of reliance and prejudice in favor of purchasers who moved onto the land and made certain improvements. Campbell v. Blair, 127 Vt. 157, 241 A.2d 791, 1968 Vt. LEXIS 192 (1968).

Under statute, if wife was to be held as a joint contractor on executory contract for sale of real estate, she must have signed contract, either by her own hand or by agent duly authorized in writing, and she was not bound by such contract to which her husband signed her name in absence of proof that he had written authority so to do. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Fact that wife, whose husband without written authority signed her name to contract for sale of real estate, received copy of contract from her husband and filed it, that she was satisfied with contract and may have so informed her husband, and that she was willing to go on with it at time of trial of action for breach thereof, was held not to constitute waiver of defect therein under statute. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Wife was not estopped from setting up Statute of Frauds as defense by her acts and statements upon which plaintiff placed no reliance and of which he had no knowledge. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Husband did not waive any rights to rely on statute, nor was he estopped to assert them, because he said nothing about statute when he signed or thereafter. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

In suit for specific performance of an agreement for sale of land, made by one tenant in common thereof for himself and his co-tenant, evidence was to show that former had latter’s authority to sign written contract for sale of his interest in land. Vermont Marble Co. v. Mead, 85 Vt. 20, 80 A. 852, 1911 Vt. LEXIS 202 (1911).

—Generally.

This section can be used as a defense to actions at law, but was not available where claim was based on fraud and sought equitable relief with respect to title to land. Stamato v. Quazzo, 139 Vt. 155, 423 A.2d 1201, 1980 Vt. LEXIS 1500 (1980).

Part performance of contract for sale of land is ground of relief in equity, and there court proceeds mainly on the basis of relief from fraud. McGuirk v. Ward, 115 Vt. 221, 55 A.2d 610, 1947 Vt. LEXIS 105 (1947); Hibbard v. Whitney, 13 Vt. 21, 1841 Vt. LEXIS 3 (1841).

Where contract was for sale of lands on both sides, and was not in writing, no action at law could ever be maintained upon it, and part performance of such a contract was ground of relief in equity only, and there, on principle of relieving from fraud. Hibbard v. Whitney, 13 Vt. 21, 1841 Vt. LEXIS 3 (1841).

Contract for sale of land was not taken out of statute by part performance, unless such performance be made under such circumstance as to amount to fraud, against which court of equity will relieve, nor even then unless such part performance be expressly stated in bill. Meach v. Stone, 1 D. Chip. 182 (Vt. 1814).

—Generally.

An exception to the rule that a contract involving the sale of land or interests therein must be in writing exists where a party demonstrates that he or she is equitably entitled to the claimed interest in land. In such cases, enforcement is justified on the ground that repudiation by one party after the other has fully performed amounts to a virtual fraud. Rappaport v. Estate of Banfield, 2007 VT 25, 181 Vt. 447, 924 A.2d 72, 2007 Vt. LEXIS 50 (2007).

Where defendant sold and delivered stoves to orator, for which orator paid him thousand dollars in money, and executed and tendered to him a deed of certain land that defendant agreed to, but would not take in payment of balance, contract was fulfilled and performed by orator, and nothing was left open for Statute of Frauds to operate upon. Adams v. Smilie, 50 Vt. 1, 1877 Vt. LEXIS 48 (1877).

In an action on contract for sale of certain standing timber, writing signed by plaintiff but not by defendants, whereby he sold them timber and gave them six months in which to remove it and under which they entered upon land and cut all timber involved in suit and removed some and left the rest, was admissible, as against statute, since defendants by entering and acting under writing adopted it and became bound by it as if they had signed it. Ross v. Hamilton, 95 Vt. 234, 113 A. 781, 1921 Vt. LEXIS 206 (1921).

Cited.

Cited in Dickson v. McMahan, 140 Vt. 23, 433 A.2d 310, 1981 Vt. LEXIS 551 (1981); Bryant v. Strong, 141 Vt. 244, 448 A.2d 142, 1982 Vt. LEXIS 518 (1982); In re Tremblay, 28 B.R. 497, 1983 Bankr. LEXIS 6603 (Bankr. D. Vt. 1983); Frank W. Whitcomb Construction Corp. v. Cedar Construction Co., 142 Vt. 541, 459 A.2d 985, 1983 Vt. LEXIS 430 (1983); Cliche v. Fair, 145 Vt. 258, 487 A.2d 145, 1984 Vt. LEXIS 586 (1984); Prescott v. Smits, 146 Vt. 430, 505 A.2d 1211, 1985 Vt. LEXIS 391 (1985); Gallagher v. McCarthy, 148 Vt. 258, 532 A.2d 557, 1987 Vt. LEXIS 501 (1987); Nutting v. Freda, 153 Vt. 501, 572 A.2d 896, 1990 Vt. LEXIS 20 (1990); Bassler v. Bassler, 156 Vt. 353, 593 A.2d 82, 1991 Vt. LEXIS 95 (1991); Bensen v. Gall, 158 Vt. 106, 605 A.2d 841, 1992 Vt. LEXIS 25 (1992).

Cited.

Cited in Catamount Slate Prods. v. Sheldon, 2003 VT 112, 176 Vt. 158, 845 A.2d 324, 2003 Vt. LEXIS 355 (2003).

§ 182. Representations as to another.

An action shall not be brought to charge a person upon or by reason of a representation or assurance made concerning the character, conduct, credit, ability, trade, or dealings of another person, unless such representation or assurance is made in writing and signed by the party to be charged thereby, or by some person thereunto by him or her lawfully authorized.

History

Source.

V.S. 1947, § 1718. P.L. § 1677. G.L. § 1878. P.S. § 1578. V.S. § 1226. R.L. § 983. G.S. 66, § 3. R.S. 61, § 3.

ANNOTATIONS

Cited.

Cited in In re Mayo, 112 B.R. 607, 1990 Bankr. LEXIS 574 (Bankr. D. Vt. 1990).

§ 183. Extension of time when there is a surety.

Where the performance of a contract is secured by the obligation of a surety, an agreement made between the creditor and the principal debtor for the extension of the time of payment, or the performance of the contract, shall not have any binding effect at law unless such agreement is made upon a valuable consideration and is in writing, or some note or memorandum thereof is in writing and signed by such creditor, or by some person thereunto duly authorized, reciting briefly the consideration upon which such contract is founded.

HISTORY: 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1719. P.L. § 1678. G.L. § 1879. P.S. § 1579. V.S. § 1227. R.L. § 984. G.S. 66, § 4.

Revision note—

Reference to “or in chancery” was omitted in view of repeal provisions relating to chancery.

ANNOTATIONS

Generally.

Agreement between creditor and principal debtor for extension of time of payment does not affect liability of surety unless requirements of this section are met. Johnson v. Learie, 100 Vt. 308, 137 A. 205, 1927 Vt. LEXIS 154 (1927).

Lease.

In action on bond to secure performance by lessees of conditions of lease, under this section surety was not released by reason of lessor having accepted demand notes for overdue rent, where no valuable consideration for notes appeared, unless notes were given in payment of rent. Johnson v. Learie, 100 Vt. 308, 137 A. 205, 1927 Vt. LEXIS 154 (1927).

Promissory note.

Where defendant offered to prove that plaintiff afterwards verbally agreed with defendant’s co-maker on note, for valuable consideration, on an extension of time, contract was within statute and evidence was inadmissible. Benedict v. Cox, 52 Vt. 247, 1880 Vt. LEXIS 122 (1880).

Chapter 9. Time

§§ 251, 252. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 251, 252. Former §§ 251, 252, relating to computation and extension of time were derived from 1959, No. 261 , §§ 14, 15. For present provisions relating to computation and enlargement of time, see V.R.C.P. 6(a)-(e).

Part 2. Proceedings Before Trial

Chapter 21. Place of Trial

§ 401. Supreme Court.

Actions in the Supreme Court shall be brought before one of the stated terms thereof at the place designated by law for holding the same.

History

Source.

V.S. 1947, § 1603. P.L. § 1564. G.L. § 1781. P.S. § 1489. V.S. § 1139. 1892, No. 28 , § 1.

§ 402. Superior Court actions, venue generally.

  1. An action before a Superior Court shall be brought in the unit in which one of the parties resides, if either resides in the State; otherwise, on motion, the complaint shall be dismissed. If neither party resides in the State, the action may be brought in any unit. Actions concerning real estate shall be brought in the unit in which the lands, or some part thereof, lie.
  2. An action brought by a domestic railroad corporation to the Superior Court may be brought either in the unit in which the corporation has its principal office for the transaction of business, or in the unit in which a defendant resides. An action or suit brought to the Superior Court, in which the corporation is defendant, may be brought in any unit in which a road owned or operated by the corporation is located.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 31, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 67.

History

Source.

V.S. 1947, § 1604. P.L. § 1565. 1933, No. 157 , § 1405. G.L. § 1782. P.S. § 1490. V.S. § 1140. R.L. § 899. G.S. 33, § 10. 1857, No. 6 , § 1. 1853, No. 20 . R.S. 28, § 11. R. 1797, p. 98, § 48. R. 1787, p. 27.

Revision note—

In section heading, reference to “County Court” was changed to “Superior Court” pursuant to 1973, No. 193 (Adj. Sess.), § 3. See note under 4 V.S.A. § 71 .

Amendments

—2009 (Adj. Sess.) Inserted “venue” preceding “generally” and deleted “railroads” thereafter in the section catchline, and substituted “unit” for “county” wherever it appeared throughout the section.

—1973 (Adj. Sess.). Subsecs. (a) and (b): Substituted “superior” for “county” preceding “court”.

—1971 (Adj. Sess.). Original paragraphs designated as subsecs. (a), (b), substituted “complaint shall be dismissed” for “writ shall abate”, provided for actions concerning real estate generally and rephrased subsecs.

ANNOTATIONS

Generally.

General jurisdiction of county courts over civil actions is defined by 4 V.S.A. § 113 and this section. Page v. Newbury, 113 Vt. 336, 34 A.2d 218, 1943 Vt. LEXIS 182 (1943).

Breach of promise to marry.

In action for breach of promise to marry, made in Italy, to be performed there, and which was broken there, omission in declaration to lay action where suit was brought, under a videlicet, did not affect court’s jurisdiction to try case, since in this state that fiction did not designate county from which jury was drawn, but place of trial was determined by statute. Massucco v. Tomasi, 80 Vt. 186, 67 A. 551 (1907), same case 78 Vt. 188, 62 A. 57.

Construction.

Use of word “may” in one section of statute and use of word “shall” in another section indicate an intention to differentiate between sections—“may” being permissive while “shall” is of restrictive import. Snyder v. Central Vt. Ry., 112 Vt. 190, 22 A.2d 181, 1941 Vt. LEXIS 150 (1941).

“Allow” and “permit” are synonymous and convertible and are of same intent as “may.” Snyder v. Central Vt. Ry., 112 Vt. 190, 22 A.2d 181, 1941 Vt. LEXIS 150 (1941).

Ejectment.

Where no party disputes title, an action for ejectment may properly be brought in the district court in the county where either party resides. Estate of Emilo v. St. Pierre, 146 Vt. 421, 505 A.2d 664, 1985 Vt. LEXIS 397 (1985).

District court ejectment action was not a proceeding to establish or settle title to land, and venue was not governed by this section providing that actions concerning real estate shall be brought in the county in which the land lies; the action could be brought, under section 405 of this title, in the territorial unit in which one of the parties resided, and it made no difference where the property was situated. State v. Fisher, 134 Vt. 339, 360 A.2d 102, 1976 Vt. LEXIS 669 (1976).

Historical.

Provisions of this section relating to venue generally of county court actions were enacted prior to those having to do with such actions in which railroad corporation is a party, see P.L. 1565, Revision 1787, page 27. Snyder v. Central Vt. Ry., 112 Vt. 190, 22 A.2d 181, 1941 Vt. LEXIS 150 (1941).

Motion.

Mere motion to abate writ on basis of nonresidence of parties was not sufficient where nonresidence did not appear on face of record, but could be made out only by proof dehors process, so plea could not be treated as motion. J.O. Bilodeau & Co. v. Reed, 119 Vt. 342, 126 A.2d 118, 1956 Vt. LEXIS 115 (1956).

Railroads.

This section allows an action against domestic railroad to be brought in any county court having jurisdiction under general venue of plaintiffs or defendants as well as in such court in county where its railroad is located. Snyder v. Central Vt. Ry., 112 Vt. 190, 22 A.2d 181, 1941 Vt. LEXIS 150 (1941).

Replevin.

Court had jurisdiction of action of replevin brought in county where one of parties resided, although property replevied was detained in another county. Collamer v. Page, 35 Vt. 387, 1862 Vt. LEXIS 54 (1862).

Residence.

In considering question of intention as to residence within meaning of this section, it is always important to consider whether party has anything to return to, and if he has, he may well be supposed to have intention to return, but if he has not, he may more reasonably be thought to carry his home with him. Cyr v. Cyr, 118 Vt. 445, 111 A.2d 735, 1955 Vt. LEXIS 110 (1955).

Mere intention does not constitute residence; it must have a relation to definite place to which person has a right to return. Cyr v. Cyr, 118 Vt. 445, 111 A.2d 735, 1955 Vt. LEXIS 110 (1955).

Intention alone cannot retain residence, every vestige of which is gone, with no place left to which party has right to return. Cyr v. Cyr, 118 Vt. 445, 111 A.2d 735, 1955 Vt. LEXIS 110 (1955).

Town road insufficiency.

Action to recover damages from town or other corporation for injury happening through insufficiency of road was not local, so as to require action to be brought in county where injury occurred. Hunt v. Pownal, 9 Vt. 411, 1837 Vt. LEXIS 60 (1837).

Trespass on freehold.

Action of trespass in county court is a local action because it is made so by statute. Page v. Newbury, 113 Vt. 336, 34 A.2d 218, 1943 Vt. LEXIS 182 (1943).

If action of trespass was brought in county court in wrong county, error was defect in process and in no way affected general jurisdiction of court over subject matter. Page v. Newbury, 113 Vt. 336, 34 A.2d 218, 1943 Vt. LEXIS 182 (1943).

Trespass on freehold would not lie in this state for trespass committed on lands in Massachusetts. Niles v. Howe, 57 Vt. 388, 1885 Vt. LEXIS 66 (1885).

Trustee process.

In trustee process, residence of plaintiff or principal debtor determines place where suit is to be brought, and not residence of trustee. Trombly & Sax v. Clark, 13 Vt. 118, 1841 Vt. LEXIS 21 (1841).

Venue.

Unless an action requires the court to directly establish, quiet, attach, transfer, or bestow title to real property, provision of this section pertaining to actions concerning real estate does not apply. Bergeron v. Boyle, 2003 VT 89, 176 Vt. 78, 838 A.2d 918, 2003 Vt. LEXIS 280 (2003).

Since plaintiffs’ request for specific performance was personal in nature — the relief sought would require defendant to fulfill his contractual obligations—their action was transitory despite its effect on real property; consequently, A county other than that where the property is located was a proper venue for plaintiffs’ action. Bergeron v. Boyle, 2003 VT 89, 176 Vt. 78, 838 A.2d 918, 2003 Vt. LEXIS 280 (2003).

Wrongful death.

Action for wrongful death under New Hampshire statute against defendants found in Vermont, by Vermont ancillary administrator, was properly brought in county where latter resided. Brown v. Perry, 104 Vt. 66, 156 A. 910, 1931 Vt. LEXIS 146 (1931).

—Generally.

Where court has jurisdiction of subject matter, defense based upon fact that suit is brought in wrong county must be seasonably asserted and failure so to plead waives objection. J.O. Bilodeau & Co. v. Reed, 119 Vt. 342, 126 A.2d 118, 1956 Vt. LEXIS 115 (1956); Collamer v. Page, 35 Vt. 387, 1862 Vt. LEXIS 54 (1862).

Statutes prescribing counties in which a defendant may be sued generally relate only to jurisdiction over person, and confer on defendant privilege with regard to the place where he may be sued which may be waived by him, and by appearing generally, defendant waives such privilege and becomes subject to jurisdiction of court. J.O. Bilodeau & Co. v. Reed, 119 Vt. 342, 126 A.2d 118, 1956 Vt. LEXIS 115 (1956).

General appearance by some act which goes to merits and does not raise question of venue when it could have been raised waives objection that venue was wrong, whether it be because defendant is privileged to be sued only in county or district of his domicile or because action is brought in county or district in which neither plaintiff or defendant resides. J.O. Bilodeau & Co. v. Reed, 119 Vt. 342, 126 A.2d 118, 1956 Vt. LEXIS 115 (1956).

If an action of trespass was brought in county court of wrong county, error was defect of process, and being matter of abatement was waived by failure to seasonably plead it. Page v. Newbury, 113 Vt. 336, 34 A.2d 218, 1943 Vt. LEXIS 182 (1943).

§ 403. Patent rights.

An action to recover a debt or demand, arising from the sale of or license to use a patent right, whether such demand is in the form of a promissory note or otherwise, shall be brought and tried in the unit where the defendant resides or where such patent right was sold when such note or obligation purports to be given for a patent right, unless otherwise provided by law.

HISTORY: Amended 2009, No. 154 (Adj. Sess.), § 67a.

History

Source.

V.S. 1947, § 1605. P.L. § 1566. G.L. § 1783. P.S. § 1491. V.S. § 1141. R.L. § 900. 1870, No. 68 , § 1.

Amendments

—2009 (Adj. Sess.) Substituted “unit” for “county” preceding “where the defendant”.

§ 404. Removal to another unit.

  1. When it appears to a presiding judge of a Superior Court that there is reason to believe that a civil action pending in such court cannot be impartially tried in the unit where it is pending, on petition of either party, such judge shall order the cause removed to the Superior Court in another unit for trial.
  2. Attachments, recognizances, bonds, and orders in such cause, made before such removal, shall have the same validity as if the cause had continued in the court to which it was originally brought.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 68.

History

Source.

V.S. 1947, §§ 1606-1609. P.L. §§ 1567-1570. G.L. §§ 1784-1787. P.S. §§ 1492-1495. 1906, No. 63 , § 27. V.S. §§ 1142-1145. R.L. §§ 901-904. 1867, No. 3 , §§ 1-4.

Amendments

—2009 (Adj. Sess.) Deleted former subsecs. (b) and (c) and redesignated former subsec. (d) as present subsec. (b), and substituted “unit” for “county” in the section catchline and in subsec. (a).

—1973 (Adj. Sess.) Reference to “County Court” was changed to “Superior Court” pursuant to 1973, No. 193 (Adj. Sess.), § 3. See note under 4 V.S.A. § 71 .

ANNOTATIONS

Construction.

Provision authorizing change of venue because impartial trial cannot be had should be construed in light of common law. Carpenter v. Central Vt. Ry., 84 Vt. 538, 80 A. 657 (1911), same case 86 Vt. 67, 83 A. 466, 90 Vt. 35, 96 A. 373, 93 Vt. 357, 107 A. 569, 58 Yale L.J. 1188.

Discretion.

Presiding judge has reasonable discretion in determining whether there is reason to believe that impartial trial cannot be had in county where case is pending. Willard v. Norcross, 83 Vt. 268, 75 A. 269 (1910), same case 79 Vt. 546, 65 A. 755, 81 Vt. 293, 69 A. 942, 82 Vt. 185, 72 A. 820, 86 Vt. 426, 85 A. 904.

Evidence.

Where statute authorized county judges to direct from what towns jurors should be drawn, prejudices which would warrant change of venue must exist generally throughout county, existence in particular locality not being sufficient. Carpenter v. Central Vt. Ry., 84 Vt. 538, 80 A. 657 (1911), same case 86 Vt. 67, 83 A. 466, 90 Vt. 35, 96 A. 373, 93 Vt. 357, 107 A. 569, 58 Yale L.J. 1188.

Testimony of long time residents of a county who had large acquaintance in vicinity where they lived that they never heard anything said indicating ill feeling against defendant was relevant to show that no such feeling existed. Carpenter v. Central Vt. Ry., 84 Vt. 538, 80 A. 657 (1911), same case 86 Vt. 67, 83 A. 466, 90 Vt. 35, 96 A. 373, 93 Vt. 357, 107 A. 569, 58 Yale L.J. 1188.

This section requires that there shall be proof sufficient to satisfy conscience of judge, and to put in his mind a reasonable belief of ultimate fact that an impartial trial cannot be had in county where the case is pending, and evidence must be of relevant facts, so that judge may draw his own conclusions therefrom, opinion of witnesses being insufficient; and judge’s ruling that it must “clearly appear” that justice could not be done, in order to justify change of venue, did not incorrectly state measure of proof. Willard v. Norcross, 83 Vt. 268, 75 A. 269 (1910), same case 79 Vt. 546, 65 A. 755, 81 Vt. 293, 69 A. 942, 82 Vt. 185, 72 A. 820, 86 Vt. 426, 85 A. 904.

Exceptions.

All statutes relating to review on bill of exceptions have reference to exceptions taken to action of trial court, and not to that of presiding judge thereof; and 4 V.S.A. § 117 , did not authorize presiding judge of county court to allow exceptions to his refusal to remove a case to another county for trial on account of local prejudice. Willard v. Norcross, 83 Vt. 268, 75 A. 269 (1910), same case 79 Vt. 546, 65 A. 755, 81 Vt. 293, 69 A. 942, 82 Vt. 185, 72 A. 820, 86 Vt. 426, 85 A. 904.

Petition.

Fact that defendant’s petition for change of venue was verified by oath of its general manager, and that no answer thereto was filed, nor counter affidavits submitted, did not require presiding judge to treat facts stated in petition as conclusive. Central Vt. Ry. v. Carpenter, 86 Vt. 67, 83 A. 466 (1911), same case 84 Vt. 538, 80 A. 657, 90 Vt. 35, 96 A. 373, 93 Vt. 357, 107 A. 569.

Allegations on information and belief in unanswered petition were not evidence, and could serve only to raise an issue. Central Vt. Ry. v. Carpenter, 86 Vt. 67, 83 A. 466 (1911), same case 84 Vt. 538, 80 A. 657, 90 Vt. 35, 96 A. 373, 93 Vt. 357, 107 A. 569.

Review.

Denial of a petition for change of venue was “final judgment” reviewable on certiorari. Carpenter v. Central Vt. Ry., 84 Vt. 538, 80 A. 657 (1911), same case 86 Vt. 67, 83 A. 466, 90 Vt. 35, 96 A. 373, 93 Vt. 357, 107 A. 569.

§ 405. District Court.

Writs in the District Court shall be returnable as ordered by the Supreme Court either at the principal office or the circuit office of the District Court in the territorial unit where one of the parties resides, if either party is an inhabitant in the State, or where the cause of action arose. The place of trial in the District Court shall be within the territorial unit to which the writ is returnable and as near as possible to the town where one of the parties resides, giving preference to the plaintiff. If default occurs, judgment may be rendered at the place where the writ is returnable.

HISTORY: Amended 1967, No. 194 , § 14, eff. March 1, 1968; 1967, No. 347 (Adj. Sess.), § 3, eff. March 23, 1968; 1973, No. 249 (Adj. Sess.), § 14, eff. April 9, 1974.

History

Source.

V.S. 1947, §§ 1444, 1610. P.L. §§ 1410, 1571. 1933, No. 32 , § 11. 1925, No. 45 . 1923, No. 46 . 1919, No. 69 . G.L. § 1788. 1915, No. 91 , § 13. P.S. § 1496. 1906, No. 68 , § 1. V.S. § 1146. R.L. § 905. 1870, No. 86 , § 1. G.S. 31, § 33. 1858, No. 12 . 1857, No. 7 , § 1. 1857, No. 6 . 1853, Nos. 9, 10. 1840, No. 7 . R.S. 26, §§ 14-16. 1811, p. 104. 1802, p. 77. R. 1797, p. 416, § 8. 1792, p. 63. 1789, p. 10. R. 1787, p. 85.

Revision note—

Substituted “court” for “and justice’s courts” in the section catchline in view of the amendment to this section by 1973, No. 249 (Adj. Sess.), § 14.

Amendments

—1973 (Adj. Sess.). Omitted second sentence relating to writs in justice’s courts.

—1967 (Adj. Sess.). Substituted “as ordered by the supreme court either at the principal office or the circuit office” for “at the principal office”.

—1967. Amended section generally, omitted subsec. (b).

Former subsec. (b)(4) of this section related to patent right and was repealed by 1959, No. 262 , § 37.

ANNOTATIONS

Ejectment.

Where no party disputes title, an action for ejectment may properly be brought in the district court in the county where either party resides. Estate of Emilo v. St. Pierre, 146 Vt. 421, 505 A.2d 664, 1985 Vt. LEXIS 397 (1985).

District court ejectment action was not a proceeding to establish or settle title to land, and venue was not governed by section 402 of this title providing that actions concerning real estate shall be brought in the county in which the land lies; the action could be brought, under this section, in the territorial unit in which one of the parties resided, and it made no difference where the property was situated. State v. Fisher, 134 Vt. 339, 360 A.2d 102, 1976 Vt. LEXIS 669 (1976).

Objection and waiver.

Objection in an action commenced before justice of the peace that writ was not made returnable in town in which one of parties resided was matter of abatement, which was waived if not pleaded at first appearance before the justice. University of Vermont v. Joslyn, 21 Vt. 52, 1848 Vt. LEXIS 97 (1848).

Rent.

Common law principle that action of covenant for rent reserved in lease brought by lessor against assignee of lessee was local has been superseded by statute. University of Vermont v. Joslyn, 21 Vt. 52, 1848 Vt. LEXIS 97 (1848).

Sale of goods.

Subsection (b)(3) was applicable only to vendor who established business in town where sale was made as dealer in goods, wares and merchandise, and to peddlers going from town to town. Farr v. Rand, 88 Vt. 453, 92 A. 964, 1915 Vt. LEXIS 255 (1915); Richardson v. Stevens, 41 Vt. 120, 1868 Vt. LEXIS 85 (1868).

It did not apply to single act of selling, by one who was only transiently in town in which sale was made, and had no established business there. Stone v. Hazen, 25 Vt. 178, 1853 Vt. LEXIS 20 (1853); Wainwright v. Berry, 3 Vt. 423, 1831 Vt. LEXIS 31 (1831).

Trespass on freehold.

In action of trespass on the freehold before justice of peace, writ must be made returnable in town where one of parties resides, if both parties are citizens of state, and writ will abate if made returnable in town where land lies if neither of parties resides in that town. June v. Conant, 17 Vt. 656, 1845 Vt. LEXIS 98 (1845).

§ 406. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 406. Former § 406, relating to time and place of hearings, was derived from V.S. 1947, § 1453; P.L. § 1419; 1933, No. 32 , § 4.

Chapter 23. Limitation of Time for Commencement of Actions

Subchapter 1. Generally

History

Suspension of statutes of limitations. 2019, No. 95 (Adj. Sess.), § 6 provides: “Notwithstanding any provision of law to the contrary, all statutes of limitations or statutes of repose for commencing a civil action in Vermont that would otherwise expire during the duration of any state of emergency declared by the Governor arising from the spread of COVID-19 are tolled until 60 days after the Governor terminates the state of emergency by declaration.”

ANNOTATIONS

Construction.

Statutes of limitations are remedial and are to be construed liberally. Leno v. Meunier, 125 Vt. 30, 209 A.2d 485, 1965 Vt. LEXIS 194 (1965).

§ 461. Actions by State.

The limitations prescribed in this chapter for the commencement of actions shall apply to the same actions when brought in the name of the State, or otherwise, for the benefit of the State, as in actions brought by citizens.

History

Source.

V.S. 1947, § 1712. P.L. § 1671. G.L. § 1872. P.S. § 1572. V.S. § 1220. R.L. § 979. G.S. 63, § 22. R.S. 58, § 21.

ANNOTATIONS

Generally.

Statute of limitations did not run against state, unless named in direct terms. State Treasurer v. Weeks, 4 Vt. 215, 1832 Vt. LEXIS 25 (1832).

Law Reviews —

Applicability of a state statute of limitations to the claim of a foreign sovereign, see 47 Yale L.J. 132, 134 (1937).

§ 462. Lands for a public, pious, or charitable use.

Nothing contained in this chapter shall extend to lands given, granted, sequestered, or appropriated to a public, pious, or charitable use, or to lands belonging to the State.

History

Source.

V.S. 1947, § 1715. P.L. § 1674. G.L. § 1875. P.S. § 1575. V.S. § 1223. R.L. § 954. G.S. 63, § 4. 1854, No. 14 . R.S. 58, § 4. 1819, p. 26. 1802, p. 164. 1801, p. 13.

ANNOTATIONS

Generally.

Vermont Code limits the applicability of the statutory fifteen-year prescriptive period with respect to lands that are or have been dedicated to public, pious, or charitable use during the prescriptive period. The effect of the exemption is to control what periods the adverse possessor can count in order to show fifteen years of open, notorious, hostile and continuous use or possession. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

For purposes of an adverse possession claim, the period during which the land falls under the public, pious or charitable use exception cannot be counted toward the statutory 15-year prescriptive period, even when the land is no longer in public, pious or charitable use. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Element of a claim of boundary by acquiescence is possession for the full statutory period, as defined by the limitations period for the recovery of land, and an exemption limits the applicability of the limitations period to lands dedicated to public, pious, or charitable use. The plain meaning of the words in the statute makes it clear that the exemption applies to all actions for which proving the statutory period defined in the limitations period is an element. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

For purposes of an adverse possession claim, the period during which the land falls under the public, pious or charitable use exception cannot be counted toward the statutory 15-year prescriptive period, even when the land is no longer in public, pious or charitable use. Thus, plaintiffs could not rely on the years during which a church owned the property in question and dedicated it to a public, pious or charitable use to make their adverse possession claims. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Applicability.

Statute exempting lands belonging to the State from the statute of limitations is limited to claims of adverse possession (or other claims of property interests arising by prescription). Accordingly, it did not exempt the State’s claims against defendants for groundwater contamination from the statute of limitations. State v. Atlantic Richfield Co., 2016 VT 61, 202 Vt. 212, 148 A.3d 559, 2016 Vt. LEXIS 59 (2016).

Charitable use.

Because the primary use of property of a fraternal organization property was for private meetings, such use could not be found to benefit an indefinite segment of the public at large; therefore, the property could not qualify for an exemption under the charitable use exception to the adverse possession statute. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

Computation of statutory period.

Exemption for public, pious or charitable uses limits the applicability of the statute of limitations for the recovery of land with respect to lands that are or have been dedicated to public, pious, or charitable use during the prescriptive period; its effect is to control what periods the adverse possessor can count in order to show 15 years of open, notorious, hostile, and continuous use or possession. To the extent it can be considered a defense, it is not an affirmative defense, and the rule regarding pleadings imposes no obligation upon defendant to plead the application of the statute in an answer. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Glebe land.

Title to glebe land cannot be acquired by adverse possession. Brown v. Derway, 109 Vt. 37, 192 A. 16, 1937 Vt. LEXIS 112 (1937).

Particular cases.

Focus of the charitable exemption from the statute of limitations is not on lands held by a public, pious or charitable user but rather on lands given, granted, sequestered or appropriated to a public, pious or charitable use. Defendant’s predecessor’s only use of the property during its years of ownership was as a charitable summer camp, and thus the land was appropriated to a charitable use during the entirety of its ownership. Mahoney v. Tara, LLC, 2014 VT 90, 197 Vt. 412, 107 A.3d 887, 2014 Vt. LEXIS 100 (2014).

Because the trial court’s reading of the public, pious or charitable use exception to the statutory 15-year prescriptive period was in line with the court’s precedent, with precedents from other jurisdictions, and with the policy concerns behind the provision, the trial court properly held that plaintiffs could not rely on the years during which a church owned the property in question and dedicated it to a public, pious or charitable use to make their adverse possession claims. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

As there was no dispute that defendant’s property, when owned by a church, was dedicated to pious use and operated on a nonprofit basis, the pious-use exemption negated plaintiffs’ claim for adverse possession. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Policy behind the exception for public, pious, or charitable uses—that land should not be lost to the State and public through the laches or ignorance of the public or of officials representing it—applies with equal force to claims of boundary by acquiescence. Accordingly, plaintiffs’ boundary-by-acquiescence claim was barred when the property had been used by a church for pious uses. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Reversal and remand were required when the trial court relied on the name of an organization to infer that its use of the property in question necessarily had a pious or charitable purpose. The name alone did not reveal whether the use of the property was for a privileged purpose. Mahoney v. Tara, LLC, 2011 VT 3, 189 Vt. 557, 15 A.3d 122, 2011 Vt. LEXIS 3 (2011) (mem.).

Pious use.

Plain meaning of the words in the statute makes it clear that the exemption for public, pious, or charitable uses applies to all actions for which proving the statutory period for recovery of lands is an element. Thus, plaintiffs’ boundary-by-acquiescence claim was barred by the exemption for public, pious, or charitable uses. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Because between 1981 and 2005, the property in question was owned by a non-profit church and dedicated to religious and community uses, the exemption for pious uses applied and negated plaintiffs’ adverse possession claims. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

It is self-evident that the qualifying criteria set forth in American Museum and its progeny for public or charitable uses have no application to the pious-use exemption from adverse possession. The question must turn generally, therefore, on whether a property meets the standard for pious use, subject to the more limiting requirements of the property tax exemption. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

To the extent the pious-use exception to the statutory fifteen-year prescriptive period was a defense, it was not an affirmative defense, and there was no obligation to defendant to plead the application of the statute in its answer to plaintiffs’ adverse possession claims. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Qualifying criteria set forth in American Museum and its progeny for public or charitable uses have no application to the pious-use exemption from adverse possession claims or prescriptive easements. The question must turn generally, therefore, on whether a property meets the standard for “pious” use, subject to the more limiting requirements of the tax exemption for such uses. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

First and third requirements of the American Museum test, in slightly modified form, remain applicable to the pious-use exemption to the prescriptive period for adverse possession. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Statute which exempted church property from adverse possession claims or prescriptive easements did not violate Establishment Clause of First Amendment, since property dedicated to “pious” use was included among a broad class of property in the statute, there was no direct governmental support for religious activities, effect of statute was not to either advance or inhibit religion, and statute did not foster excessive government entanglement with religion. Chittenden v. Waterbury Center Community Church, 168 Vt. 478, 726 A.2d 20, 1998 Vt. LEXIS 400 (1998).

Under this section, title cannot be acquired by adverse possession to land granted and held for pious use. Davis v. Union Meeting House Soc’y, 93 Vt. 520, 108 A. 704 (1920), same case 92 Vt. 402, 105 A. 29.

Public use.

Where a donor, in 1807, conveyed a parcel of land to a town subject to the town building a meeting house thereon and continuing to use it for that purpose, and where the town, in 1927, breached the deed restriction by building a school on the property and erecting a new meeting house on separate property, the fee automatically reverted to the heirs of the donor and the property was not “given” or “appropriated” for a public purpose by its legal owners. Accordingly, from that point on, the town was not barred by 12 V.S.A. § 462 . In re .88 Acres, 165 Vt. 17, 676 A.2d 778, 1996 Vt. LEXIS 29 (1996).

In determining whether municipal land was given to a public use thus exempting it from a claim of adverse possession, the reason the property was acquired by the town, the uses made since its acquisition, and evidence of manifest intent to use the property in the future are to be considered. Jarvis v. Gillespie, 155 Vt. 633, 587 A.2d 981, 1991 Vt. LEXIS 16 (1991).

Trial court properly found plaintiff had carried his burden to prove acquisition of title to municipal land by adverse possession where plaintiff openly, notoriously, hostilely and continuously possessed the property in excess of the statutory period and property had not been given to a public use, such as would exempt it from plaintiff’s claim. Jarvis v. Gillespie, 155 Vt. 633, 587 A.2d 981, 1991 Vt. LEXIS 16 (1991).

Under statutory exemption of municipal lands given to a public use from claims of adverse possession, land which is owned by a municipality is presumed to be given to such use; however, this presumption can be rebutted by demonstrating that the town has abandoned any plans for the land. Jarvis v. Gillespie, 155 Vt. 633, 587 A.2d 981, 1991 Vt. LEXIS 16 (1991).

Where town acquired parcel in settlement of a debt, the parcel was not used by the public during the next 51 years, following which the town conveyed the parcel to a private individual, trial court properly concluded the parcel was not given to a public use and therefore not exempt from plaintiff’s claim of adverse possession. Jarvis v. Gillespie, 155 Vt. 633, 587 A.2d 981, 1991 Vt. LEXIS 16 (1991).

Grant of land, being for a public use, was protected from acquisition by adverse possession. Addison County v. Blackmer, 101 Vt. 384, 143 A. 700, 1928 Vt. LEXIS 167 (1928); University of Vermont v. Reynolds' Ex'r, 3 Vt. 542, 1831 Vt. LEXIS 49 (1831).

University land.

In action of ejectment, where university corporation, predecessor in title of plaintiff, also university corporation, acquired title to land involved in 1844 and had good chain of title back to original grant, but neither corporation had ever occupied premises, where defendants had occupied and farmed the land since 1923, had good record title thereto going back to mortgage executed in 1871, and they and their predecessors in title had paid taxes assessed thereon, and where trustees of plaintiff were given power by act of 1865 to convey land owned, grant by plaintiff to defendants or their predecessors in title would be presumed, notwithstanding provision of this section excepting lands granted to a public, pious or charitable use from operation of § 501 of this title. University of Vermont v. Carter, 110 Vt. 206, 3 A.2d 533, 1939 Vt. LEXIS 130 (1939).

Waters of public and boatable lake.

Right to lower level of waters of public and boatable lake to such extent as to injure interests of people of the State cannot be gained by prescription in accordance with provision that nothing contained in statute of limitations shall extend to State lands. State v. Malmquist, 114 Vt. 96, 40 A.2d 534, 1944 Vt. LEXIS 91 (1944); Hazen v. Perkins, 92 Vt. 414, 105 A. 249, 1918 Vt. LEXIS 194 (1918).

Cited.

Cited in In re Town Highway No. 20, 2003 VT 76, 175 Vt. 626, 834 A.2d 17, 2003 Vt. LEXIS 155 (2003); Benson v. Hodgdon, 2010 VT 11, 187 Vt. 607, 992 A.2d 1053, 2010 Vt. LEXIS 15 (2010) (mem.).

§ 463. Counterclaims and cross-claims.

A cross-claim or counterclaim shall not be brought if an independent action upon the same claim would have been barred under the provisions of this chapter at the time of commencement of the plaintiff’s action, except that a counterclaim arising out of the transaction or occurrence that is the subject matter of plaintiff’s claim shall be allowed, to the extent of plaintiff’s demand, at any time.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 32, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1696. P.L. § 1655. G.L. § 1856. P.S. § 1555. V.S. § 1203. R.L. § 963. G.S. 63, § 30. R.S. 58, § 20. 1831, No. 5 .

Amendments

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Counterclaims allowed at any time.

Where purchasers’ claims of fraud against seller of farm for misrepresentations at time of sale arose out of same transaction as that on which seller filed proof of claim as creditor in bankruptcy proceeding, purchasers’ action was within this section allowing counterclaim to be brought at any time. In re Peterson, 93 B.R. 323, 1988 Bankr. LEXIS 2277 (Bankr. D. Vt. 1988).

Recoupment.

Recoupment is a species of counterclaim which a defendant may assert only if it arises out of the same transaction as the plaintiff’s claim and only as a defensive device to defeat or diminish the plaintiff’s recovery. Quechee Lakes Corp. v. Terrosi, 141 Vt. 547, 451 A.2d 1080, 1982 Vt. LEXIS 601 (1982).

A defense of recoupment is never barred by the statute of limitations so long as the main action itself is timely, and both allow the defendant to assert the defense up to the limit of the plaintiff’s claim. Quechee Lakes Corp. v. Terrosi, 141 Vt. 547, 451 A.2d 1080, 1982 Vt. LEXIS 601 (1982).

§ 464. Actions specially limited by other provisions.

The provisions of this chapter shall not affect an action otherwise specially limited by law.

History

Source.

V.S. 1947, § 1713. P.L. § 1672. G.L. § 1873. P.S. § 1573. V.S. § 1221. R.L. § 980. G.S. 63, § 29.

ANNOTATIONS

Dram Shop Act.

Because the Dram Shop Act contains its own limitations provision and is not codified in the chapter governing limitation of actions, an action under the Dram Shop Act is “otherwise specially limited” and removed from the operation of the minority tolling provision by this section. Pike v. Chuck's Willoughby Pub, Inc., 2006 VT 54, 180 Vt. 25, 904 A.2d 1133, 2006 Vt. LEXIS 135 (2006).

Negotiable instruments.

Statute governing actions specially limited by other provisions signals that applicable statutes of limitations outside of Title 12, Chapter 23 trump potentially applicable limitations periods within that chapter. Accordingly, the six-year statute of limitations in the Uniform Commercial Code for negotiable demand notes prevailed over the 14-year limitations period for witnessed promissory notes in Chapter 23 of Title 12. Clark v. Distefano, 2018 VT 82, 208 Vt. 139, 195 A.3d 379, 2018 Vt. LEXIS 111 (2018).

Workman’s compensation.

Proceeding for workmen’s compensation does not come within this section, since six months’ limitation established by 21 V.S.A. § 656 , did not apply to commencement of action but only to preliminary requirement of making claim on employer. Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 191 A. 920, 1937 Vt. LEXIS 121 (1937).

§ 465. Limitations or waiving limitation of actions in contracts.

Except as otherwise provided by statute, any provision in a contract which limits the time in which an action may be brought under the contract or which waives the statute of limitations shall be null and void.

HISTORY: 1961, No. 187 .

ANNOTATIONS

Applicability.

Because an action involving a trust was not an action under a contract, the statute regarding limitations or waiving limitation of actions in contracts was not applicable. In re Estate of Alden v. Alden, 2011 VT 64, 190 Vt. 401, 35 A.3d 950, 2011 Vt. LEXIS 71 (2011).

Time limitations.

Condominium owners’ complaint was not time-barred based on a limitation in the contract because, pursuant to 12 V.S.A. § 465 , the provision in the contract that required a party to present a claim within one year of the date the claiming party knew or should have known of the facts giving rise to the claim was null and void. Bergman v. Spruce Peak Realty, LLC, 847 F. Supp. 2d 653, 2012 U.S. Dist. LEXIS 37229 (D. Vt. 2012).

§ 466. When action deemed commenced.

For the purpose of determining whether a period of limitation prescribed in this chapter has run, an action shall be deemed commenced upon the filing of the complaint with the clerk of the court in which the action is being brought if the action is commenced by filing or upon service of the summons and complaint if the action is commenced by service.

HISTORY: Added 1971, No. 185 (Adj. Sess.), § 233, eff. March 29, 1972.

ANNOTATIONS

Timely service.

If filing of complaint is to toll statute of limitations as of filing date, timely service must be accomplished. Weisburgh v. McClure Newspapers, Inc., 136 Vt. 594, 396 A.2d 1388, 1979 Vt. LEXIS 915 (1979).

Subchapter 2. Actions Limited

History

Suspension of statutes of limitations. 2019, No. 95 (Adj. Sess.), § 6 provides: “Notwithstanding any provision of law to the contrary, all statutes of limitations or statutes of repose for commencing a civil action in Vermont that would otherwise expire during the duration of any state of emergency declared by the Governor arising from the spread of COVID-19 are tolled until 60 days after the Governor terminates the state of emergency by declaration.”

§ 501. Recovery of lands.

Except as otherwise provided in 32 V.S.A. § 5263 , an action for the recovery of lands, or the possession thereof, shall not be maintained, unless commenced within 15 years after the cause of action first accrues to the plaintiff or those under whom he or she claims.

HISTORY: Amended, 1959, No. 218 , § 6.

History

Source.

V.S. 1947, § 1682. P.L. § 1642. G.L. § 1843. P.S. § 1544. V.S. § 1193. R.L. § 951. G.S. 63, § 1. R.S. 58, § 1. R. 1797, p. 595, § 6. R. 1787, p. 92.

Amendments

—1959. Inserted exception as to 32 V.S.A. § 5263 .

ANNOTATIONS

I. GENERALLY.
Construction.

Statute was not applicable to petition to redeem mortgage. Wells v. Morse, 11 Vt. 9, 1838 Vt. LEXIS 126 (1838).

Death.

Though period of limitation for bringing an action under this section ceases to operate with death of a mortgagor by virtue of § 557 of this title, period limiting the right or title of entry under mortgage to 15 years from time such right of entry accrued continues to operate under § 502 of this title. Cameron v. Bailey, 117 Vt. 158, 86 A.2d 643, 1952 Vt. LEXIS 116 (1952).

Doctrine of presumptive grants.

Doctrine of presumptive grants exists independently of statute of limitations. University of Vermont v. Carter, 110 Vt. 206, 3 A.2d 533, 1939 Vt. LEXIS 130 (1939).

It applies to cases within statute and also to those without statute because subject matter is not included therein or because it may be said that they are not within on account of some express exception or exemption. University of Vermont v. Carter, 110 Vt. 206, 3 A.2d 533, 1939 Vt. LEXIS 130 (1939).

In cases within statute mere length of possession, unaccompanied by other circumstances, is not sufficient to raise presumption of grant, for where possession has existed for length of time prescribed by statute it becomes barred by operation of the statute, while if it has existed for less time, it must be aided by other circumstances or presumption cannot arise. University of Vermont v. Carter, 110 Vt. 206, 3 A.2d 533, 1939 Vt. LEXIS 130 (1939).

—Generally.

For purposes of an adverse possession claim, the period during which the land falls under the public, pious or charitable use exception cannot be counted toward the statutory 15-year prescriptive period, even when the land is no longer in public, pious or charitable use. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Because the trial court’s reading of the public, pious or charitable use exception to the statutory 15-year prescriptive period was in line with the court’s precedent, with precedents from other jurisdictions, and with the policy concerns behind the provision, the trial court properly held that plaintiffs could not rely on the years during which a church owned the property in question and dedicated it to a public, pious or charitable use to make their adverse possession claims. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Exemption for public, pious or charitable uses limits the applicability of the statute of limitations for the recovery of land with respect to lands that are or have been dedicated to public, pious, or charitable use during the prescriptive period; its effect is to control what periods the adverse possessor can count in order to show 15 years of open, notorious, hostile, and continuous use or possession. To the extent it can be considered a defense, it is not an affirmative defense, and the rule regarding pleadings imposes no obligation upon defendant to plead the application of the statute in an answer. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Possession of property by remaindermen subsequent to the date when the remainder interests became possessory upon the death of the last surviving life tenant was not sufficient to establish a claim of adverse possession where the possession was not of sufficient duration to satisfy the requisite statutory period of 15 years. Ransom v. Bebernitz, 172 Vt. 423, 782 A.2d 1155, 2001 Vt. LEXIS 266 (2001).

Statute does not begin to run till plaintiff’s cause of action accrues. Paine v. Webster, 1 Vt. 101, 1828 Vt. LEXIS 7 (1828).

Statute will not commence to run against remainder man until his right of possession commences. Bailey v. Woodbury, 50 Vt. 166, 1877 Vt. LEXIS 81 (1877).

Suit commenced by children claiming fee tail estate under will was not barred by statute when brought within 15 years after death of holder of life estate. Giddings v. Smith, 15 Vt. 344, 1843 Vt. LEXIS 51 (1843).

Computation of time, see also annotations under subch. 3 of this chapter.

Pleading.

To the extent the pious-use exception to the statutory 15-year prescriptive period was a defense, it was not an affirmative defense, and there was no obligation to defendant to plead the application of the statute in its answer to plaintiffs’ adverse possession claims. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Statute may be availed of by demurrer in suit in equity when objection appears on face of bill. Scully v. Dermody, 110 Vt. 422, 8 A.2d 675, 1939 Vt. LEXIS 161 (1939).

Defendants who litigated question of statute by plea were not at liberty to litigate it again by answer; and plaintiff had right to traverse answer and take testimony in support of allegations of bill, and so to defeat plea on proof as well as by its own concessions, and did not waive effect of adjudication on plea by so traversing. Foster v. Foster, 51 Vt. 216, 1878 Vt. LEXIS 147 (1878).

—Generally.

For purposes of an adverse possession claim, the period during which the land falls under the public, pious or charitable use exception cannot be counted toward the statutory 15-year prescriptive period, even when the land is no longer in public, pious or charitable use. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Because the trial court’s reading of the public, pious or charitable use exception to the statutory 15-year prescriptive period was in line with the court’s precedent, with precedents from other jurisdictions, and with the policy concerns behind the provision, the trial court properly held that plaintiffs could not rely on the years during which a church owned the property in question and dedicated it to a public, pious or charitable use to make their adverse possession claims. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Exemption for public, pious or charitable uses limits the applicability of the statute of limitations for the recovery of land with respect to lands that are or have been dedicated to public, pious, or charitable use during the prescriptive period; its effect is to control what periods the adverse possessor can count in order to show 15 years of open, notorious, hostile, and continuous use or possession. To the extent it can be considered a defense, it is not an affirmative defense, and the rule regarding pleadings imposes no obligation upon defendant to plead the application of the statute in an answer. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Possession of property by remaindermen subsequent to the date when the remainder interests became possessory upon the death of the last surviving life tenant was not sufficient to establish a claim of adverse possession where the possession was not of sufficient duration to satisfy the requisite statutory period of 15 years. Ransom v. Bebernitz, 172 Vt. 423, 782 A.2d 1155, 2001 Vt. LEXIS 266 (2001).

Statute does not begin to run till plaintiff’s cause of action accrues. Paine v. Webster, 1 Vt. 101, 1828 Vt. LEXIS 7 (1828).

Statute will not commence to run against remainder man until his right of possession commences. Bailey v. Woodbury, 50 Vt. 166, 1877 Vt. LEXIS 81 (1877).

Suit commenced by children claiming fee tail estate under will was not barred by statute when brought within 15 years after death of holder of life estate. Giddings v. Smith, 15 Vt. 344, 1843 Vt. LEXIS 51 (1843).

Computation of time, see also annotations under subch. 3 of this chapter.

II. ADVERSE POSSESSION.
Generally.

For purposes of an adverse possession claim, the period during which the land falls under the public, pious or charitable use exception cannot be counted toward the statutory 15-year prescriptive period, even when the land is no longer in public, pious or charitable use. Thus, plaintiffs could not rely on the years during which a church owned the property in question and dedicated it to a public, pious or charitable use to make their adverse possession claims. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Adverse possession claim is really one for recognition of title and enforcement of the rights that accompany title. Unless raised by another adverse possessor, the statute of limitations does not create a defense to an adverse possession claim. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Adverse possession claim is really one for recognition of title and enforcement of the rights that accompany title. Unless raised by another adverse possessor, the statute of limitations does not create a defense to an adverse possession claim. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Element of a claim of boundary by acquiescence is possession for the full statutory period, as defined by the limitations period for the recovery of land, and an exemption limits the applicability of the limitations period to lands dedicated to public, pious, or charitable use. The plain meaning of the words in the statute makes it clear that the exemption applies to all actions for which proving the statutory period defined in the limitations period is an element. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Vermont Code limits the applicability of the statutory 15-year prescriptive period with respect to lands that are or have been dedicated to public, pious, or charitable use during the prescriptive period. The effect of the exemption is to control what periods the adverse possessor can count in order to show 15 years of open, notorious, hostile and continuous use or possession. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

To achieve title through adverse possession, a claimant must demonstrate that possession of land was open, notorious, hostile and continuous throughout statutory period of 15 years. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780, 1999 Vt. LEXIS 208 (1999), cert. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672, 2000 U.S. LEXIS 186 (2000).

In view of evidence of open, notorious and continuous use of disputed portion of land from 1929 to 1976 by the parties claiming title by adverse possession and absent any evidence that, prior to 1944, this use was by permission, record was sufficient to support claim of title by adverse possession as early as 1944. Zuanich v. Quero, 135 Vt. 322, 376 A.2d 763, 1977 Vt. LEXIS 617 (1977).

Adverse possession may be asserted either under claim of title or under a claim of right which arises from the open, notorious and hostile possession of the land at issue. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

The test for adverse possession is that the possession must be open, notorious, hostile and continuous for the full statutory period of 15 years. Lawrence v. Pelletier, 154 Vt. 29, 572 A.2d 936, 1990 Vt. LEXIS 18 (1990).

Possession for 15 years by defendant, adverse to plaintiff, barred plaintiff’s action, whether defendant claimed in his own right, or under town. Boothe v. Coventry, 4 Vt. 295, 1832 Vt. LEXIS 37 (1832).

Burden of proof.

Where easement by adverse user is claimed, burden is on plaintiff affirmatively to prove all elements of adverse user. Dwinell v. Alberghini, 115 Vt. 394, 62 A.2d 124, 1948 Vt. LEXIS 86 (1948).

Prima facie defendant’s enjoyment of his land was an exercise of his right so to enjoy it; and it was for plaintiffs to show that what he did with reference to his property was consistent with their claim and not for him to show that his actions were inconsistent with it. Dwinell v. Alberghini, 115 Vt. 394, 62 A.2d 124, 1948 Vt. LEXIS 86 (1948).

Burden of proof generally.

Burden of proving adverse possession was on parties claiming it. Higgins v. Ringwig, 128 Vt. 534, 267 A.2d 654, 1970 Vt. LEXIS 268 (1970).

In establishing adverse possession, the burden is on the proponent to prove to the satisfaction of the trier of fact that there has been open, notorious, hostile, and continuous possession through the statutory period of time. Bemis v. Lamb, 135 Vt. 618, 383 A.2d 614, 1978 Vt. LEXIS 748 (1978).

Character of possession generally.

Where a donor, in 1807, conveyed a parcel of land to a town subject to the town building a meeting house thereon and continuing to use it for that purpose, and where the town, in 1927, breached the deed restriction by building a school on the property and erecting a new meeting house on separate property, the fee automatically reverted to the heirs of the donor and the property was not “given” or “appropriated” for a public purpose by its legal owners. Accordingly, from that point on, the town was not barred by 12 V.S.A. § 462 . In re .88 Acres, 165 Vt. 17, 676 A.2d 778, 1996 Vt. LEXIS 29 (1996).

Parties claiming title by adverse possession would not be precluded from establishing title under this section by fact that their use of disputed property was premised upon mistaken belief that property was actually theirs. Zuanich v. Quero, 135 Vt. 322, 376 A.2d 763, 1977 Vt. LEXIS 617 (1977).

The test for adverse possession is that the possession must be open, notorious, hostile and continuous for the full 15-year period set forth in this section. Thibault v. Vartuli, 143 Vt. 178, 465 A.2d 248, 1983 Vt. LEXIS 494 (1983).

Adverse possession is accomplished through open, notorious, hostile and continuous possession of another’s property for a period of 15 years. Moran v. Byrne, 149 Vt. 353, 543 A.2d 262, 1988 Vt. LEXIS 36 (1988).

In order to establish a successful claim of adverse possession, the possession must be open, notorious, hostile and continuous throughout the statutory period of 15 years. Brown v. Whitcomb, 150 Vt. 106, 550 A.2d 1, 1988 Vt. LEXIS 132 (1988).

When possession is of such character as to indicate to owner that it is exercised as matter of right, no notice of possessor’s claim is required to make it adverse. Jangraw v. Mee, 75 Vt. 211, 54 A. 189, 1903 Vt. LEXIS 117 (1903).

Whether or not possession is of such character is question for jury. Jangraw v. Mee, 75 Vt. 211, 54 A. 189, 1903 Vt. LEXIS 117 (1903).

Possession must be open, notorious, hostile and continuous through the statutory period of 15 years to form the basis for title by adverse possession. Higgins v. Ringwig, 128 Vt. 534, 267 A.2d 654, 1970 Vt. LEXIS 268 (1970).

That possession of real estate was under claim of right could be inferred from fact that it was notorious, visible, exclusive and continuous for more than 15 years. Spencer v. Lyman Falls Power Co., 109 Vt. 294, 196 A. 276, 1938 Vt. LEXIS 135 (1938).

In order to gain title to land by adverse possession, the possession that will work an ouster of the owner must be open, notorious, hostile and continuous through the statutory period of 15 years. Montgomery v. Branon, 129 Vt. 379, 278 A.2d 744, 1971 Vt. LEXIS 276 (1971); Cavendish v. Barlow, 120 Vt. 161, 136 A.2d 352, 1957 Vt. LEXIS 79 (1957); Barrell v. Renehan, 114 Vt. 23, 39 A.2d 330, 1944 Vt. LEXIS 80 (1944); Soule v. Barlow, 49 Vt. 329, 1877 Vt. LEXIS 15 (1877).

One who enters upon another’s land and so fences it as to clearly indicate to true owner and all others who may be interested that he asserts dominion to that limit may acquire title thereto by adverse possession, though he was at the start without title or color of title. Lyon v. Parker Young Co., 96 Vt. 361, 119 A. 881, 1923 Vt. LEXIS 177 (1923).

Where each of two adjoining land owners occupied to a dividing fence for more than 15 years, each claiming to own to the fence and beyond, possession of each was adverse, and when such occupation of each was open, continuous and exclusive, title by adverse possession was established. Brown v. Clark, 73 Vt. 233, 50 A. 1066, 1901 Vt. LEXIS 160 (1901).

Where purchaser of land by verbal contract paid stipulated price and went into possession as owner and continued possession as owner for 15 years, his title became perfect; but where by contract of purchase he was to have premises if he paid price, and never complied with condition, his possession under such contract was not of such an adverse character as to ripen into a title, as against vendor, in 15 years. Adams v. Fullam, 43 Vt. 592 (1871), same case 47 Vt. 558, 1 A.L.R. 1337.

—Generally.

Plaintiffs had shown adverse possession of a knoll and a parking area for the requisite 15-year period when there were boulders around the parking area and a walkway between the house and the parking area at the time that plaintiffs bought the home, no one ever expressed that the parking area or the knoll were not part of the plaintiffs’ property, the realtor parked in the parking area when showing the house, the knoll was covered in construction debris, and a neighbor and a contractor provided credible testimony that the prior owners used both areas as their own since at least 1987 for parking and storage purposes. Parker v. Potter, 2014 VT 109, 197 Vt. 577, 109 A.3d 406, 2014 Vt. LEXIS 111 (2014).

Either an answer by the defendant disputing the plaintiff’s title or a counterclaim challenging the title of the plaintiff and making a claim of ownership of the property in the response to an adverse possessor’s suit to quiet title will toll the statute of limitations, effective on the date the answer or counterclaim was filed. Mahoney v. Tara, LLC, 2014 VT 90, 197 Vt. 412, 107 A.3d 887, 2014 Vt. LEXIS 100 (2014).

After his contribution to a slate quarrying business from 1964 to 1972, plaintiff vacated the property and ceased living in the area for many years, with no objective acts indicating that he intended to continue his possession or return to enjoy the premises. In other words, his “flag on the land” was not kept “flying,” and plaintiff could not show adverse possession by returning for the period from 1985 to 1992. In re Estates of Allen, 2011 VT 95, 190 Vt. 301, 30 A.3d 662, 2011 Vt. LEXIS 96 (2011).

The trial court erred in its decision granting claimants a strip of land upon which their predecessor in interest had built a stone wall and tended a flower garden; the property owners’ could easily have assumed that the maintenance of the garden area was simply part of the predecessor’s work as their groundskeeper and, under these circumstances, despite the existence of the stone wall, the evidence was not sufficient to establish the element of hostility required for an adverse possession claim to succeed. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

The trial court erred in its decision granting a strip of land to claimants where there was no evidence to show that claimants took any act regarding the strip that could be seen as disavowing the property owners’ title. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

The trial court erred in its decision granting claimants the title to a 15 foot parking area in front of their barn because there was no evidence challenging the property owners’ regular use of the area and, because the property owners had continuously used the land in question, the statutory period for adverse possession for the parcel had not begun. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

Separate petitioners each established adverse possession on a portion of a disputed lot where it was shown that they acted no differently than any record title owners, and individually established open, notorious, hostile, and continuous possession of each side of the lot for the period of 15 years. Lysak v. Grull, 174 Vt. 523, 812 A.2d 840, 2002 Vt. LEXIS 234 (2002) (mem.).

Claimant’s use of property was sufficiently continuous to establish adverse possession as to floor of quarry; although land was not always worked to its maximum capacity, there was continuous notice of occupancy, and periods of time when operations slowed or stopped were consistent with exigencies of a family-run business and it was clear that claimant’s family intended to continue working there. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780, 1999 Vt. LEXIS 208 (1999), cert. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672, 2000 U.S. LEXIS 186 (2000).

Mere verbal protestations without action to reassert control or dominion over the disputed land does not interrupt the adverse possessor’s interest in the property, but only confirms that the occupation is hostile. Brown v. Whitcomb, 150 Vt. 106, 550 A.2d 1, 1988 Vt. LEXIS 132 (1988).

Trial court rendered sufficient findings for each element of an adverse possession cause of action, despite failing to specifically determine when the statutory period began to run and mislabeling some conclusions of law as findings of fact, where the court found a purchase of the parcel in excess of the statutory period which served as a repudiation of permissible use and findings detailed plaintiff’s continuous, open, notorious and hostile use and occupancy throughout the statutory period. Lawrence v. Pelletier, 154 Vt. 29, 572 A.2d 936, 1990 Vt. LEXIS 18 (1990).

Trial court did not err in finding that defendants could claim title to a disputed parcel of land by adverse possession where evidence presented by defendants, that their family had a vegetable garden on the parcel every summer from 1925 until the 1960’s and concerning buildings located on the land from 1925 until the early 1940’s, clearly established that defendants’ possession of the land was open, notorious, hostile and continuous for the full period set forth in this section. Thibault v. Vartuli, 143 Vt. 178, 465 A.2d 248, 1983 Vt. LEXIS 494 (1983).

To constitute continuous possession of lands, in order to obtain title by adverse possession, the law does not require the occupant to be present on the site at all times, rather, there may be lapses of time between acts of possession, that is the occupancy need only be that consistent with the nature and character of the premises; and in the case of lake-side camps, such occupation is, in the literal sense, only during certain periods of the year. Montgomery v. Branon, 129 Vt. 379, 278 A.2d 744, 1971 Vt. LEXIS 276 (1971).

Requirement of continuous possession for gaining title by adverse possession may be satisfied by repeated acts of occupancy and whether time between such acts of occupancy interrupts running of the period depends upon circumstances and intention of occupier. Barrell v. Renehan, 114 Vt. 23, 39 A.2d 330, 1944 Vt. LEXIS 80 (1944); Webb v. Richardson, 42 Vt. 465, 1869 Vt. LEXIS 106 (1869).

Party who has once commenced a possession of land by actual entry, and acts of occupancy upon it, may continue to possess it during intervals when not upon it; hence he may claim it during intervals as well as when actually upon the land doing acts of possession. Webb v. Richardson, 42 Vt. 465, 1869 Vt. LEXIS 106 (1869).

There is presumption that use of land by one who has legal title of record thereto is the exercise of his right to enjoy it and such use, if in exercise of right of ownership, interrupts continuity of adverse possession by another. Barrell v. Renehan, 114 Vt. 23, 39 A.2d 330, 1944 Vt. LEXIS 80 (1944).

By an agreement to arbitrate matters in dispute in contest for possession of land, whereby defendant in possession should continue in possession pending the arbitration, running of statute of limitations was interrupted while possession so continued. Perkins v. Flood, 36 Vt. 273, 1863 Vt. LEXIS 72 (1863).

Duration of possession by husband of land claimed by him to belong to his wife, and to which he made no claim in any other right, may be added to duration of his widow’s possession, immediately following his death, to make a possession of 15 years against adverse claimant, and thus to sustain title of widow or her grantee. Holton v. Whitney, 30 Vt. 405 (1858), same case 28 Vt. 448, 69 A.L.R. 1519.

Extent of possession.

In the absence of color of title, adverse possession of a lot with no definite boundary marks can only extend as far as claimant has actually occupied and possessed the land in dispute. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Partial occupation.

Although a claim of adverse possession that proceeds under bare claim of right extends only to that property which claimant has actually occupied, a claimant may also, under doctrine of constructive possession, achieve possession of an entire plot of land through actual occupation of a part. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780, 1999 Vt. LEXIS 208 (1999), cert. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672, 2000 U.S. LEXIS 186 (2000).

Because trial court found that property in question was clearly bounded, its conclusion that claimant had established adverse possession of quarry floor necessarily led to conclusion that she established adverse possession of entire quarry, and therefore trial court’s denial of adverse possession with respect to quarry walls was reversed. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780, 1999 Vt. LEXIS 208 (1999), cert. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672, 2000 U.S. LEXIS 186 (2000).

Where a person, without title, or color of title, enters upon vacant lot, and actually occupies portion of it, and the lot has a definite boundary, marked upon land, such person, by claiming to be owner to boundary lines of lot, has constructive possession of whole, and will acquire a title to whole by such partial occupation for 15 years, and such entry and claim give him a good prior possession of the whole, and a good title thereto against all the world, except true owner. Webb v. Richardson, 42 Vt. 465 (1869); Hodges v. Eddy, 38 Vt. 327 (1865), same case 41 Vt. 485, 52 Vt. 434; Jakeway v. Barrett, 38 Vt. 316 (1865); Pearsal v. Thorp, 1 D. Chip. 92 (1797), same case 2 Aik. 88, 161.

Permission.

Once a grant is established by adverse use, the subsequent granting of permission will not serve to divest or defeat the claim. Moran v. Byrne, 149 Vt. 353, 543 A.2d 262, 1988 Vt. LEXIS 36 (1988).

Once a grant is established by adverse use, the subsequent granting of permission will not serve to divest or defeat the claim. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Presumptions.

Where plaintiff’s predecessors in title were in open, notorious, hostile and continuous possession of disputed land from 1926 to 1947, such possession gave rise to the presumption of a claim of right rather than permission. Moran v. Byrne, 149 Vt. 353, 543 A.2d 262, 1988 Vt. LEXIS 36 (1988).

Right of way.

To acquire right of way by adverse use, plaintiff must have used same, within its definite limits, uninterruptedly, openly, notoriously and adversely to defendant’s rights and use, for 15 years. Plimpton v. Converse, 44 Vt. 158 (1871), same case 42 Vt. 712, 111 A.L.R. 221, 170 A.L.R. 826, 46 A.L.R.2d 1158.

Fifteen years use necessary to maintain prescriptive right of way, would not commence running until way began to be used under claim of right; but fact that such claim was made may be proved by words, together with use; or the mere use of the way, if expressly shown to have come to the knowledge of owner of soil, will prima facie establish the fact that use was under claim of right, unless owner of soil did not so understand it, and was not bound to so regard it from the nature and extent of the use. Dodge v. Stacy, 39 Vt. 558 (1867), same case 77 Vt. 230, 59 A. 839, 5 A.L.R. 1558, 50 A.L.R. 1269; Dee v. King, 73 Vt. 375, 50 A. 1109 (1901); Tracy v. Atherton, 36 Vt. 503 (1864), same case 35 Vt. 52, 43 A.L.R. 943, 171 A.L.R. 1281.

Right of way could be acquired by adverse possession as against husband, but not as against wife, over land of which husband had life use, with remainder to the wife or her heirs. Coleman v. Aldrich, 61 Vt. 340, 17 A. 848, 1889 Vt. LEXIS 41 (1889).

Defendant did not gain a right to plaintiff’s part of the pent road by her acts of occupation, for they were not adverse but only the ordinary use of the land for highway purposes in common with the public. Carpenter v. Cook, 71 Vt. 110, 41 A. 1038 (1898), same case 67 Vt. 102, 30 A. 998.

Tenant.

Tenant may repudiate his tenancy, and set up claim of title in his own right, and if this is made known to landlord, term of statute of limitations then begins. Adm’r of North v. Barnum, 10 Vt. 220 (1838), same case 12 Vt. 205; Greeno v. Munson, 9 Vt. 37, 1837 Vt. LEXIS 4 (1837).

Tenant in common.

Tenant in common may acquire a title against his co-tenant, by 15 years adverse possession, but this presupposes an ouster. Owen v. Foster, 13 Vt. 263, 1841 Vt. LEXIS 53 (1841).

Tenant in common, to show an ouster of his cotenant, must show acts of possession inconsistent with, and exclusive of, rights of such cotenant, and such as would amount to an ouster between landlord and tenant, and knowledge on the part of his cotenant of his claim of exclusive ownership. Chandler v. Ricker, 49 Vt. 128, 1876 Vt. LEXIS 94 (1876); Leach v. Beattie, 33 Vt. 195, 1860 Vt. LEXIS 92 (1860).

If one joint owner or tenant in common of land claim to have obtained title to the whole by an adverse possession of more than 15 years, he must, in order to sustain such claim, prove notice to, or knowledge on, the part of other tenant of such adverse and hostile claim, and the statute will run against his co-tenant only from time latter receives such notice or obtains such knowledge. Roberts v. Morgan, 30 Vt. 319, 1858 Vt. LEXIS 40 (1858).

Title acquired.

Title acquired by 15 years adverse possession is as perfect for all purposes as though derived by deed, and no verbal transfer, surrender or declaration of the person so acquiring title can have any effect upon it, and he can convey it only by deed executed according to requirements of the statutes. Hodges v. Eddy, 41 Vt. 485 (1868), same case 38 Vt. 327, 52 Vt. 434.

Party who acquires title, to land, under statute, by possession adverse to true owner acquires all title of true owner precisely as if he had deed from him. Hughes v. Graves, 39 Vt. 359, 1867 Vt. LEXIS 18 (1867).

—Generally.

The trial court properly awarded a prescriptive easement to claimants for use of the property owners’ driveway for all types of vehicles, not simply personal passenger vehicles, where it found that the claimants’ predecessor in interest used the driveway “for all types of vehicles including, but not limited to, cars, trucks, horse trailers, and hay wagons.” Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

The elements necessary to establish a prescriptive easement and adverse possession are essentially the same: an adverse use or possession which is open, notorious, hostile and continuous for a period of 15 years, and acquiescence in the use or possession by the person against whom the claim is asserted. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

When a prescriptive easement is claimed, the extent of the use must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period; where a claimant adduces enough evidence to prove those general outlines with reasonable certainty, it has met its burden on that issue. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Plaintiff’s prescriptive easement over portion of gravel area owned by defendant and used by trucks and cars coming to plaintiff’s loading areas was supported by findings that vehicles had been continuously using the area in similar manner since 1920s, until defendant erected barrier in 1984 following survey showing land belonged to defendant, by rule that open and notorious use would be presumed adverse, and by proof of plaintiff’s chain of title from predecessors in interest from 1929. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Extent of plaintiff’s prescriptive easement over portion of gravel area owned by defendant and used by trucks and cars coming to plaintiff’s loading areas was sufficiently proved by testimony showing extent of gravel area, surveys showing exact boundary of plaintiff’s land, photographs showing gravel area and loading area, and diagram showing use of gravel area by trucks and cars. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Right to an easement in another’s land acquired by long use and enjoyment is analogous to right acquired by adverse possession; and rules of law applicable to two cases are in harmony. Abatiell v. Morse, 115 Vt. 254, 56 A.2d 464, 1948 Vt. LEXIS 61 (1948).

In this state, in analogy to statute of limitations, prescriptive right, or more properly, presumption of grant to incorporeal hereditaments, arises from 15 years occupancy and possession adverse to owner or proprietor. Mitchell v. Walker, 2 Aik. 266 (Vt. Feb. 1, 1827).

Presumptive rights, acquired by long use and enjoyment, are analogous to those arising under statute, and use and enjoyment must be adverse and uninterrupted for period limited by statute. Shumway v. Simons, 1 Vt. 53, 1827 Vt. LEXIS 6 (1827).

Easement may be extinguished by open, notorious, hostile and continuous possession on the part of owner of servient tenement for statutory period of 15 years. Dwinell v. Alberghini, 115 Vt. 394, 62 A.2d 124, 1948 Vt. LEXIS 86 (1948).

Water.

Where one entered upon premises of another and took water from spring for more than 15 years continuously, under verbal gift of water so taken, he thereby acquired an absolute right to extent of such use. Blaine v. Ray, 61 Vt. 566, 18 A. 189, 1889 Vt. LEXIS 87 (1889).

Open, notorious and continuous taking of water from a spring for a period of more than 15 years was permissive, and not adverse and under claim of right, when it was consistent with another’s title, though no express license was given. Hunter v. Emerson, 75 Vt. 173, 53 A. 1070, 1903 Vt. LEXIS 110 (1903).

—Generally.

Plaintiffs had shown adverse possession of a knoll and a parking area for the requisite 15-year period when there were boulders around the parking area and a walkway between the house and the parking area at the time that plaintiffs bought the home, no one ever expressed that the parking area or the knoll were not part of the plaintiffs’ property, the realtor parked in the parking area when showing the house, the knoll was covered in construction debris, and a neighbor and a contractor provided credible testimony that the prior owners used both areas as their own since at least 1987 for parking and storage purposes. Parker v. Potter, 2014 VT 109, 197 Vt. 577, 109 A.3d 406, 2014 Vt. LEXIS 111 (2014).

Either an answer by the defendant disputing the plaintiff’s title or a counterclaim challenging the title of the plaintiff and making a claim of ownership of the property in the response to an adverse possessor’s suit to quiet title will toll the statute of limitations, effective on the date the answer or counterclaim was filed. Mahoney v. Tara, LLC, 2014 VT 90, 197 Vt. 412, 107 A.3d 887, 2014 Vt. LEXIS 100 (2014).

After his contribution to a slate quarrying business from 1964 to 1972, plaintiff vacated the property and ceased living in the area for many years, with no objective acts indicating that he intended to continue his possession or return to enjoy the premises. In other words, his “flag on the land” was not kept “flying,” and plaintiff could not show adverse possession by returning for the period from 1985 to 1992. In re Estates of Allen, 2011 VT 95, 190 Vt. 301, 30 A.3d 662, 2011 Vt. LEXIS 96 (2011).

The trial court erred in its decision granting claimants a strip of land upon which their predecessor in interest had built a stone wall and tended a flower garden; the property owners’ could easily have assumed that the maintenance of the garden area was simply part of the predecessor’s work as their groundskeeper and, under these circumstances, despite the existence of the stone wall, the evidence was not sufficient to establish the element of hostility required for an adverse possession claim to succeed. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

The trial court erred in its decision granting a strip of land to claimants where there was no evidence to show that claimants took any act regarding the strip that could be seen as disavowing the property owners’ title. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

The trial court erred in its decision granting claimants the title to a 15 foot parking area in front of their barn because there was no evidence challenging the property owners’ regular use of the area and, because the property owners had continuously used the land in question, the statutory period for adverse possession for the parcel had not begun. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

Separate petitioners each established adverse possession on a portion of a disputed lot where it was shown that they acted no differently than any record title owners, and individually established open, notorious, hostile, and continuous possession of each side of the lot for the period of 15 years. Lysak v. Grull, 174 Vt. 523, 812 A.2d 840, 2002 Vt. LEXIS 234 (2002) (mem.).

Claimant’s use of property was sufficiently continuous to establish adverse possession as to floor of quarry; although land was not always worked to its maximum capacity, there was continuous notice of occupancy, and periods of time when operations slowed or stopped were consistent with exigencies of a family-run business and it was clear that claimant’s family intended to continue working there. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780, 1999 Vt. LEXIS 208 (1999), cert. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672, 2000 U.S. LEXIS 186 (2000).

Mere verbal protestations without action to reassert control or dominion over the disputed land does not interrupt the adverse possessor’s interest in the property, but only confirms that the occupation is hostile. Brown v. Whitcomb, 150 Vt. 106, 550 A.2d 1, 1988 Vt. LEXIS 132 (1988).

Trial court rendered sufficient findings for each element of an adverse possession cause of action, despite failing to specifically determine when the statutory period began to run and mislabeling some conclusions of law as findings of fact, where the court found a purchase of the parcel in excess of the statutory period which served as a repudiation of permissible use and findings detailed plaintiff’s continuous, open, notorious and hostile use and occupancy throughout the statutory period. Lawrence v. Pelletier, 154 Vt. 29, 572 A.2d 936, 1990 Vt. LEXIS 18 (1990).

Trial court did not err in finding that defendants could claim title to a disputed parcel of land by adverse possession where evidence presented by defendants, that their family had a vegetable garden on the parcel every summer from 1925 until the 1960’s and concerning buildings located on the land from 1925 until the early 1940’s, clearly established that defendants’ possession of the land was open, notorious, hostile and continuous for the full period set forth in this section. Thibault v. Vartuli, 143 Vt. 178, 465 A.2d 248, 1983 Vt. LEXIS 494 (1983).

To constitute continuous possession of lands, in order to obtain title by adverse possession, the law does not require the occupant to be present on the site at all times, rather, there may be lapses of time between acts of possession, that is the occupancy need only be that consistent with the nature and character of the premises; and in the case of lake-side camps, such occupation is, in the literal sense, only during certain periods of the year. Montgomery v. Branon, 129 Vt. 379, 278 A.2d 744, 1971 Vt. LEXIS 276 (1971).

Requirement of continuous possession for gaining title by adverse possession may be satisfied by repeated acts of occupancy and whether time between such acts of occupancy interrupts running of the period depends upon circumstances and intention of occupier. Barrell v. Renehan, 114 Vt. 23, 39 A.2d 330, 1944 Vt. LEXIS 80 (1944); Webb v. Richardson, 42 Vt. 465, 1869 Vt. LEXIS 106 (1869).

Party who has once commenced a possession of land by actual entry, and acts of occupancy upon it, may continue to possess it during intervals when not upon it; hence he may claim it during intervals as well as when actually upon the land doing acts of possession. Webb v. Richardson, 42 Vt. 465, 1869 Vt. LEXIS 106 (1869).

There is presumption that use of land by one who has legal title of record thereto is the exercise of his right to enjoy it and such use, if in exercise of right of ownership, interrupts continuity of adverse possession by another. Barrell v. Renehan, 114 Vt. 23, 39 A.2d 330, 1944 Vt. LEXIS 80 (1944).

By an agreement to arbitrate matters in dispute in contest for possession of land, whereby defendant in possession should continue in possession pending the arbitration, running of statute of limitations was interrupted while possession so continued. Perkins v. Flood, 36 Vt. 273, 1863 Vt. LEXIS 72 (1863).

Duration of possession by husband of land claimed by him to belong to his wife, and to which he made no claim in any other right, may be added to duration of his widow’s possession, immediately following his death, to make a possession of 15 years against adverse claimant, and thus to sustain title of widow or her grantee. Holton v. Whitney, 30 Vt. 405 (1858), same case 28 Vt. 448, 69 A.L.R. 1519.

—Generally.

The trial court properly awarded a prescriptive easement to claimants for use of the property owners’ driveway for all types of vehicles, not simply personal passenger vehicles, where it found that the claimants’ predecessor in interest used the driveway “for all types of vehicles including, but not limited to, cars, trucks, horse trailers, and hay wagons.” Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

The elements necessary to establish a prescriptive easement and adverse possession are essentially the same: an adverse use or possession which is open, notorious, hostile and continuous for a period of 15 years, and acquiescence in the use or possession by the person against whom the claim is asserted. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

When a prescriptive easement is claimed, the extent of the use must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period; where a claimant adduces enough evidence to prove those general outlines with reasonable certainty, it has met its burden on that issue. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Plaintiff’s prescriptive easement over portion of gravel area owned by defendant and used by trucks and cars coming to plaintiff’s loading areas was supported by findings that vehicles had been continuously using the area in similar manner since 1920s, until defendant erected barrier in 1984 following survey showing land belonged to defendant, by rule that open and notorious use would be presumed adverse, and by proof of plaintiff’s chain of title from predecessors in interest from 1929. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Extent of plaintiff’s prescriptive easement over portion of gravel area owned by defendant and used by trucks and cars coming to plaintiff’s loading areas was sufficiently proved by testimony showing extent of gravel area, surveys showing exact boundary of plaintiff’s land, photographs showing gravel area and loading area, and diagram showing use of gravel area by trucks and cars. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Right to an easement in another’s land acquired by long use and enjoyment is analogous to right acquired by adverse possession; and rules of law applicable to two cases are in harmony. Abatiell v. Morse, 115 Vt. 254, 56 A.2d 464, 1948 Vt. LEXIS 61 (1948).

In this state, in analogy to statute of limitations, prescriptive right, or more properly, presumption of grant to incorporeal hereditaments, arises from 15 years occupancy and possession adverse to owner or proprietor. Mitchell v. Walker, 2 Aik. 266 (Vt. Feb. 1, 1827).

Presumptive rights, acquired by long use and enjoyment, are analogous to those arising under statute, and use and enjoyment must be adverse and uninterrupted for period limited by statute. Shumway v. Simons, 1 Vt. 53, 1827 Vt. LEXIS 6 (1827).

Easement may be extinguished by open, notorious, hostile and continuous possession on the part of owner of servient tenement for statutory period of 15 years. Dwinell v. Alberghini, 115 Vt. 394, 62 A.2d 124, 1948 Vt. LEXIS 86 (1948).

Cited.

Cited in Patch v. Baird, 140 Vt. 60, 435 A.2d 690, 1981 Vt. LEXIS 559 (1981).

Cited.

Cited in In re Town Highway No. 20, 2003 VT 76, 175 Vt. 626, 834 A.2d 17, 2003 Vt. LEXIS 155 (2003) (mem.).

§ 502. Entry into houses or lands.

A person having right or title of entry into houses or lands shall not enter after 15 years from the time such right of entry accrues.

History

Source.

V.S. 1947, § 1683. P.L. § 1643. G.L. § 1844. P.S. § 1545. V.S. § 952. G.S. 63, § 2. R.S. 58, § 2. R. 1797, p. 595, § 6. R. 1787, p. 92.

CROSS REFERENCES

Entry or detainer, limitation of actions for, see § 4926 of this title.

ANNOTATIONS

Generally.

This section takes away right of entry. Cameron v. Bailey, 117 Vt. 158, 86 A.2d 643, 1952 Vt. LEXIS 116 (1952); Hughes v. Graves, 39 Vt. 359, 1867 Vt. LEXIS 18 (1867).

This section is not affected by § 557 of this title. Cameron v. Bailey, 117 Vt. 158, 86 A.2d 643, 1952 Vt. LEXIS 116 (1952).

—Generally.

In a Chapter 7 trustee’s action seeking a determination that a mortgage was invalid and avoidable pursuant to 11 U.S.C.S. §§ 506 and 544(a), a purchase and sale agreement was not invalid because the four year statute of limitations in 9A V.S.A., § 2-725 had expired. As the promissory note was secured by a mortgage, the 15-year period of limitations in 12 V.S.A., § 502 applied. Obuchowski v. McGovern, 2013 Bankr. LEXIS 81 (Bankr. D. Vt. Jan. 9, 2013).

In the case of a promissory note secured by a mortgage, the impetus of securing a debt with a mortgage is to provide the mortgagee with certain protections that the promissory note alone does not provide; among these protections, to which both parties to a mortgage implicitly agree, is an extended statute of limitations which allows a mortgagee to enforce the debt beyond the life of the promissory note. Huntington v. McCarty, 174 Vt. 69, 807 A.2d 950, 2002 Vt. LEXIS 146 (2002).

Mortgagee’s right of entry accrues at time obligation of mortgage becomes overdue and this right of entry is lost if entry is not made within time prescribed by this section. Cameron v. Bailey, 117 Vt. 158, 86 A.2d 643, 1952 Vt. LEXIS 116 (1952).

Though period of limitation for bringing an action under § 501 of this title ceases to operate with death of mortgagor by virtue of § 557 of this title, period limiting right or title of entry under mortgage to 15 years from time such right of entry accrued continues to operate under this section. Cameron v. Bailey, 117 Vt. 158, 86 A.2d 643, 1952 Vt. LEXIS 116 (1952).

Right of entry under mortgage is barred by continued interruption and ouster for term of 15 years. Fowler v. Barlow, 102 Vt. 99, 146 A. 77, 1929 Vt. LEXIS 150 (1929).

Interruption or ouster ceases upon acknowledgment of title of mortgagee, by owner of equity of redemption. Fowler v. Barlow, 102 Vt. 99, 146 A. 77, 1929 Vt. LEXIS 150 (1929).

Presumption of payment.

Courts of equity act upon analogy of statute of limitations, and will presume payment and satisfaction of mortgage debt after lapse of 15 years, unless something has intervened to take case out of statute, or to repel presumption of payment resulting from lapse of time. Fowler v. Barlow, 102 Vt. 99, 146 A. 77, 1929 Vt. LEXIS 150 (1929).

§ 503. Covenant of seisin.

Actions brought on a covenant of seisin in a deed of conveyance of land shall be brought within 15 years after the cause of actions accrues, and not after.

History

Source.

V.S. 1947, § 1684. P.L. § 1644. G.L. § 1845. P.S. § 1546. V.S. § 1195. R.L. § 955. G.S. 63, § 13. R.S. 58, § 12. R. 1797, p. 596, § 8. R. 1787, p. 92.

ANNOTATIONS

Prior law.

An action upon covenant of seizin was barred by statute in eight years from execution of deed, which contains such covenant. Pierce v. Johnson, 4 Vt. 247, 1832 Vt. LEXIS 28 (1832).

§ 504. Covenant of warranty.

An action founded on covenant of warranty in a deed of land shall be brought only within eight years after a final decision against the title of the covenantor in such deed.

History

Source.

V.S. 1947, § 1688. P.L. § 1647. G.L. § 1848. P.S. § 1549. V.S. § 1198. R.L. § 958. G.S. 63, § 12. R.S. 58, § 11. R. 1797, p. 596, § 8. R. 1787, p. 92.

ANNOTATIONS

Construction.

Where covenantor under covenant of warranty had neither possession of nor title to part of land purportedly conveyed in 1936 and it was undisputed that at the time of the conveyance both the possession and the title to that part was in a third party, the covenantee took neither title nor possession to the land held by the third party and “a final decision” occurred at the time of the conveyance, within the meaning of this section. Hull v. The Federal Land Bank of Springfield, 134 Vt. 201, 353 A.2d 577, 1976 Vt. LEXIS 630 (1976).

Warrant and defend.

In an action for breach of covenant to warrant and defend, statute of limitations was not a defense—as such covenant runs with land. Wilder v. Davenport, 58 Vt. 642, 5 A. 753, 1886 Vt. LEXIS 126 (1886).

§ 505. Covenants other than warranty or seisin.

An action founded on covenant, contained in a deed of lands, other than the covenants of warranty and seisin, shall be brought within eight years after the cause of action accrues, and not after.

History

Source.

V.S. 1947, § 1687. P.L. § 1646. G.L. § 1847. P.S. § 1548. V.S. § 1197. R.L. § 957. G.S. 63, § 12. R.S. 58, § 11. R. 1797, p. 596, § 8. R. 1787, p. 92.

ANNOTATIONS

Accrual.

Cause of action for breach of a restrictive covenant accrues upon breach of the covenant. Where the alleged covenant violations involve the construction of a noncomplying structure, the construction itself, and not merely preparatory steps that may be necessary predicates to the construction but do not themselves constitute or require the construction, starts the limitations period. Marsh v. McGillvray, 2013 VT 6, 193 Vt. 320, 67 A.3d 943, 2013 Vt. LEXIS 13 (2013).

Action barred.

To the extent neighbors sought to invoke an alleged longstanding covenant violation on Lot A to enjoin construction of a new dwelling on Lot B, the statute of limitations would bar their claims. The neighbors could not reprise a challenge to the guest house on Lot A under the cloak of opposition to proposed and otherwise allowed construction on Lot B. Marsh v. McGillvray, 2013 VT 6, 193 Vt. 320, 67 A.3d 943, 2013 Vt. LEXIS 13 (2013).

Action not barred.

Plaintiff’s reconfiguration of her lot lines and procurement of a revised subdivision permit from the State of Vermont in the 1980s, while necessary steps to building a dwelling on the reconfigured lot, were not sufficient to constitute the alleged violation of the restrictive covenant provisions that defendants invoked in opposition to plaintiff’s building plans, and thus did not trigger the statute of limitations. Marsh v. McGillvray, 2013 VT 6, 193 Vt. 320, 67 A.3d 943, 2013 Vt. LEXIS 13 (2013).

§ 506. Judgments.

Actions on judgments and actions for the renewal or revival of judgments shall be brought by filing a new and independent action on the judgment within eight years after the rendition of the judgment, and not after.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 33, eff. March 29, 1972; 2009, No. 132 (Adj. Sess.), § 8, eff. May 29, 2010.

History

Source.

V.S. 1947, § 1685. 1947, No. 202 , § 1720. P.L. § 1645. G.L. § 1846. P.S. § 1547. V.S. § 1196. R.L. § 956. G.S. 63, § 11. R.S. 58, § 10. R. 1797, p. 596, § 8. R. 1787, p. 92.

Amendments

—2009 (Adj. Sess.) Inserted “by filing a new and independent action on the judgment” preceding “within eight years”.

—1971 (Adj. Sess.). Substituted “on judgments and actions for the renewal or revival of judgments” for “and writs of scire facias on judgment”.

ANNOTATIONS

Generally.

This section did not extend to scire facias provided by statute in case where an execution had been levied on property which did not belong to debtor. Baxter v. Tucker, 1 D. Chip. 353 (Vt. 1815).

Construction with other law.

Where appellant argued that the adoption of V.R.C.P. 69 and V.R.C.P. 81 abolished the common law action of debt on a judgment, Supreme Court found no merit in this contention, because the Vermont legislature had made statutory revisions since the adoption of the rules of procedure that directly acknowledged the existence of the action, and, more importantly, V.R.C.P. 69 could not properly abolish the civil action on a judgment, since the enabling act that authorized the rules of procedure expressly stated that “[the] rules thus prescribed shall not abridge, enlarge or modify any substantive rights of any person provided by law.” Koerber v. Middlesex College, 136 Vt. 4, 383 A.2d 1054, 1978 Vt. LEXIS 677 (1978).

Irregular levy.

When irregular levy of execution on real estate was vacated on audita querela, statute did not begin to run on original judgment until execution and levy were vacated. Fairbanks v. Deveraux, 58 Vt. 359, 3 A. 500 (1886), same case 48 Vt. 550.

Pleading and proof.

When the trial court approved proposed qualified domestic relations orders, but the orders were never “qualified” because they were never approved by a plan administrator, there was no judgment to execute or enforce, and the husband’s motion, in which he sought to compel the wife to transfer the retirement funds to him with interest, was not barred under the eight-year limitations period for actions on judgments. Johnston v. Johnston, 2019 VT 34, 210 Vt. 279, 212 A.3d 627, 2019 Vt. LEXIS 59 (2019).

Where New York judgment was rendered in 1991, and the Vermont action was commenced in 2000; thus, the action was prima facie barred by the eight-year statute of limitations for actions on judgments. Marine Midland Bank v. Bicknell, 2004 VT 25, 176 Vt. 389, 848 A.2d 1134, 2004 Vt. LEXIS 30 (2004).

In debt on judgment of court of another state rendered more than eight years before action brought, where defendant gave notice of reliance on statute, and on fact that during more than eight years of that time he had resided in this state and had known attachable property therein, allegation as to residence and possession of property was surplusage as part of defense, and did not need to be proved; and burden was on plaintiff to prove whatever he relied on to show that statute had not run. Capen v. Woodrow, 51 Vt. 106, 1878 Vt. LEXIS 132 (1878).

Probate court judgment.

Where probate court ordered guardian to pay over to ward amount in his hands, action of debt on the judgment would be within this section and action of debt on guardian’s bond would be within § 507 of this title. Probate Court v. Child, 51 Vt. 82, 1878 Vt. LEXIS 127 (1878).

Renewal of judgment.

Appellee’s attempt to enforce a judgment was time-barred, as the statute governing renewal of judgments required that renewals of judgments be brought by filing a new and independent action seeking renewal within eight years of the judgment’s rendition, whereas here, both motions seeking enforcement of the judgments were filed in the original 2006 divorce action; furthermore, the rule governing motions after judgments in family proceedings was limited to post-judgment proceedings in an existing divorce action and did not extend the statute of limitations on judgments. Blake v. Petrie, 2020 VT 92, 213 Vt. 347, 245 A.3d 768, 2020 Vt. LEXIS 104 (2020).

It is evident that the legislature intended the words “rendition of the judgment” in the statute regarding the limitations period for bringing actions on judgments to encompass renewed judgments, and that when a judgment is renewed—in Vermont or elsewhere under another state’s laws—the date of the renewed judgment is controlling for purposes of the statute. If the statute of limitation period has almost run upon the judgment, the judgment creditor can start the limitation period anew by bringing an action upon the judgment and obtaining a new judgment. H&E Equip. Servs., Inc. v. Cassani Elec., Inc., 2017 VT 17, 204 Vt. 559, 169 A.3d 1308, 2017 Vt. LEXIS 25 (2017).

Under Vermont law, judgments, including renewed judgments, must be acted upon—or renewed again—within eight years of the date they were issued. Here, the 2001 Arizona judgment was renewed in 2011 and plaintiff brought the action in 2015, well within the eight-year limitation period; thus, the enforcement action was not time-barred. H&E Equip. Servs., Inc. v. Cassani Elec., Inc., 2017 VT 17, 204 Vt. 559, 169 A.3d 1308, 2017 Vt. LEXIS 25 (2017).

2001 judgment was not renewed when plaintiffs filed a motion for a possessory writ of attachment and eventually entered into a stipulated agreement with defendant regarding his payment of the 2001 debt. While defendant might have had notice and an opportunity to respond to plaintiffs’ motion, that did not transform plaintiffs’ motion into a complaint. Ayer v. Hemingway, 2013 VT 37, 193 Vt. 610, 73 A.3d 673, 2013 Vt. LEXIS 33 (2013).

Russo plainly requires a new and independent suit initiated by the filing of a complaint to renew a judgment, not the filing of something that is arguably akin to a complaint. Any other conclusion would reintroduce uncertainty into the judgment renewal process. Ayer v. Hemingway, 2013 VT 37, 193 Vt. 610, 73 A.3d 673, 2013 Vt. LEXIS 33 (2013).

The judgment of the district court (which granted company’s motion for summary judgment in action to renew judgment) was vacated and remanded where the language of the release was exceptionally broad but might reasonably be construed more narrowly to release agents of the principal only in their representative capacities; a trial was necessary to consider what was within the contemplation of the parties when the release was executed, which in turn is to be resolved in the light of the surrounding facts and circumstances under which the parties acted. Okemo Mt., Inc. v. United States Sporting Clays Ass'n (2d Cir. 2004).

Sheriff’s recognizance.

Actions of scire facias upon official recognizance of a sheriff and his sureties were not founded upon judgment and not within this section. Brainerd v. Stewart, 33 Vt. 402, 1860 Vt. LEXIS 114 (1860).

—Generally.

Since judgment creditor could not maintain action upon judgment while execution thereon was in hands of officer who was proceeding in due course to levy and satisfy the same, statute was suspended during same period; but if execution was levied and duly returned, statute began to run upon any unsatisfied balance from date of such return. Thatcher v. Lyons, 70 Vt. 438, 41 A. 428, 1898 Vt. LEXIS 59 (1898).

Statute did not run upon judgment while judgment debtor was imprisoned on execution; but began to run upon his discharge as poor debtor. Ferriss v. Barlow, 8 Vt. 90, 1836 Vt. LEXIS 17 (1836).

Time of commencement of suit.

For purposes of the statute of limitations for renewing a judgment, a 2002 judgment, rather than a 2004 order, controlled, as the 2002 judgment ended the litigation between the parties and finally disposed of the matter, whereas the 2004 order merely set forth the outstanding amount due on the original judgment and reflected the terms under which continuing payments would be made. Flex A Seal v. Safford, 2015 VT 40, 198 Vt. 496, 117 A.3d 823, 2015 Vt. LEXIS 19 (2015).

Same tolling rule applicable to contract actions applies to actions on judgment debts. Thus, defendant’s acknowledgment and payment of a judgment debt tolled the limitations period for renewing a judgment. Flex A Seal v. Safford, 2015 VT 40, 198 Vt. 496, 117 A.3d 823, 2015 Vt. LEXIS 19 (2015).

Action to renew a judgment was timely because the action to renew a judgment was brought within eight years after the underlying judgment was rendered; that the statute of limitations was tolled from the date the action to renew a judgment was brought was not affected by the fact the appellate court vacated the district court’s grant of summary judgment in favor of the party that had sought renewal. Okemo Mt., Inc. v. Sikorski, 2003 U.S. Dist. LEXIS 20553 (D. Vt. Oct. 23, 2003), vacated, 376 F.3d 102, 2004 U.S. App. LEXIS 14674 (2d Cir. 2004).

While ordinarily no advantage is gained by bringing an action in the same state upon a judgment if the statute of limitation period has almost run upon the judgment, pursuant to 12 V.S.A. § 506 , the judgment creditor can start the limitation period anew by bringing an action upon the judgment and obtaining a new judgment; this is precisely what the judgment creditor did in the case at bar. The fact that his original judgment was “dormant” at the time he commenced his action is not a bar to the action. Koerber v. Middlesex College, 136 Vt. 4, 383 A.2d 1054, 1978 Vt. LEXIS 677 (1978).

Time of commencement of suit to avoid statute was day when writ issued, but such writ must be served and returned. Day v. Lamb, 7 Vt. 426 (1835), same case 8 Vt. 407.

Void levy.

Where part of judgment was apparently satisfied by levy of record of execution on real estate acquiesced in by both parties, and balance of judgment was revived by scire facias, and afterwards levy was declared void, amount of levy could be revived and statute ran only from time levy was declared void. Hall v. Hall, 8 Vt. 156 (1836), same case 5 Vt. 304.

§ 507. Specialties.

Actions on specialties shall be brought within eight years after the cause of action accrues, and not after.

History

Source.

V.S. 1947, § 1686. 1947, No. 202 , § 1721. P.L. § 1645. G.L. § 1846. P.S. § 1547. V.S. § 1196. R.L. § 956. G.S. 63, § 11. R.S. 58, § 10. R. 1797, p. 596, § 8. R. 1787, p. 92.

ANNOTATIONS

Award under seal.

An award under seal was a specialty within meaning of this section, although the submission was by parol. Halnon v. Halnon, 55 Vt. 321, 1883 Vt. LEXIS 34 (1883).

Burden of proof.

Plaintiff who pleads that a written instrument is a specialty has burden of proof on that issue. McAllister v. Northern Oil Co., 115 Vt. 465, 64 A.2d 31, 1949 Vt. LEXIS 84 (1949).

Definitions.

A specialty within meaning of this section is a writing sealed and delivered—a contract under seal. McAllister v. Northern Oil Co., 115 Vt. 465, 64 A.2d 31, 1949 Vt. LEXIS 84 (1949); Coral Gables, Inc. v. Christopher, 108 Vt. 414, 189 A. 147, 1937 Vt. LEXIS 139 (1937).

Common law required that a seal be of wax or a wafer or something that would take an impression, and word “seal” after signature was not enough to make an instrument a specialty at common law. McAllister v. Northern Oil Co., 115 Vt. 465, 64 A.2d 31 (1948). See, however, 1 V.S.A. § 134 , definition of “seal.” .

Guardian’s bond.

In action for debt on guardian’s bond, brought more than eight years after guardian had settled his account with court, and he had been ordered to pay over to ward amount in his hands, right of action accrued at time of such settlement and order, action was barred by this section, and it made no difference whether action was considered as action in favor of probate court or of prosecutor and real plaintiff. Probate Court v. Child, 51 Vt. 82, 1878 Vt. LEXIS 127 (1878).

Modification of statute.

Section 555 of this title purports to modify this section in the case of fraudulent concealment. Troy v. American Fidelity Co., 120 Vt. 410, 143 A.2d 469, 1958 Vt. LEXIS 119 (1958).

Sheriff’s recognizance.

Actions of scire facias upon official recognizance of a sheriff and his sureties were not founded on specialties, and not within this section. Brainerd v. Stewart, 33 Vt. 402, 1860 Vt. LEXIS 114 (1860).

Time of commencement of action.

An action is deemed to have been commenced when writ issued. McAllister v. Northern Oil Co., 115 Vt. 465, 64 A.2d 31, 1949 Vt. LEXIS 84 (1949).

§ 508. Witnessed promissory note.

An action brought on a promissory note signed in the presence of an attesting witness shall be commenced within 14 years after the cause of action accrues, and not after.

History

Source.

V.S. 1947, § 1693. P.L. § 1652. G.L. § 1853. P.S. § 1552. V.S. § 1201. R.L. § 961. G.S. 63, § 10. R.S. 58, § 9. R. 1797, p. 596, § 8.

CROSS REFERENCES

Statute of limitations, see 9A V.S.A. § 3-118.

ANNOTATIONS

Generally.

Written contract, having usual form of a promissory note in every particular, except that it was payable in some specific article, was so far a promissory note, that, if witnessed, it was not barred by the statute of limitations until 14 years. Bragg v. Fletcher, 20 Vt. 351 (1848); Leonard v. Walker, Brayt. 203 (1820).

Applicability.

Statute governing actions specially limited by other provisions signals that applicable statutes of limitations outside of title 12, chapter 23 trump potentially applicable limitations periods within that chapter. Accordingly, the six-year statute of limitations in the Uniform Commercial Code for negotiable demand notes prevailed over the 14-year limitations period for witnessed promissory notes in chapter 23 of title 12. Clark v. Distefano, 2018 VT 82, 208 Vt. 139, 195 A.3d 379, 2018 Vt. LEXIS 111 (2018).

Attesting witness.

Where maker of notes wrote on back thereof word “renewed,” together with date and his signature, and caused another person to sign as witness to his signature, this constituted new promise to pay, renewed notes, and made them “signed in the presence of an attesting witness,” within meaning of this section. Chaffee’s Sons v. Estate of Blanchard, 105 Vt. 389, 165 A. 912 (1933), same case 105 Vt. 442, 168 A. 695.

Where promissory note was attested by wife of payee as witness with knowledge and consent of maker, he could not afterwards object that it was not a witnessed note within this section. Alexander v. Hanley, 64 Vt. 361, 24 A. 242, 1892 Vt. LEXIS 49 (1892).

If promissory note was signed by two or more, witness thereto, if there be but one, must have been present and signed as witness to execution of whole note, to allow an action to be brought upon it at any time within 14 years. Lapham v. Briggs, 27 Vt. 26, 1854 Vt. LEXIS 90 (1854).

Pleading.

Indorsement by maker of witnessed guaranty upon promissory note within 14 years before bringing of the suit was no answer to statute when pleaded to declaration upon note itself, and whatever effect of such an indorsement might be as a contract in and of itself, it did not convert original note into witnessed note. Fletcher v. Munroe, 61 Vt. 406, 17 A. 799, 1889 Vt. LEXIS 57 (1889).

Plea of statute of limitations of six years was sufficient answer to general count in debt for money had and received; and, if a witnessed note was offered in evidence under such a plea, advantage of the 14 years limitation was thereby waived. Lapham v. Briggs, 27 Vt. 26, 1854 Vt. LEXIS 90 (1854).

Declaration describing a note without any consideration expressed in the note, but describing a consideration distinct from the note itself, set forth a note within statute. Leonard v. Walker, Brayt. 203 (1820).

Running of statute.

When note itself indicates that calls for payment are to be indefinitely prospective, and to be made as might suit wants and convenience of payee, there is no ground furnished upon which law can assume any fixed point as limit to reasonable time for making demand, and therefore give operation to statute of limitations. C & T Discount Corp. v. Sawyer, 123 Vt. 238, 185 A.2d 462, 1962 Vt. LEXIS 234 (1962).

Statute of limitations will not begin to run if there is something in note or in circumstances under which it was given showing that actual demand or delay for payment was contemplated by parties. C & T Discount Corp. v. Sawyer, 123 Vt. 238, 185 A.2d 462, 1962 Vt. LEXIS 234 (1962).

Statute did not begin to run on note until principal, or at least some separate and distinct portion of principal, became due and payable—and then only on such distinct and separate portion, and interest, accruing from year to year, was not thus separated from principal demand, and consequently statute did not run on it, until principal was barred by statute. Grafton Bank v. Doe, 19 Vt. 463, 1847 Vt. LEXIS 62 (1847).

§ 509. Evidence of debt issued by a monied corporation.

The provisions of this chapter shall not apply to an action brought to enforce payment on any bills, notes, or other evidences of debt issued by a bank or other monied corporation and put into circulation as money.

History

Source.

V.S. 1947, § 1695. 1947, No. 202 , § 1730. P.L. § 1654. G.L. § 1855. P.S. § 1554. V.S. § 1202. R.L. § 962. G.S. 63, § 21. R.S. 58, § 19.

§ 510. Liability of stockholders and of foreign corporations.

An action to enforce the liability of stockholders to the creditors or for the indebtedness of foreign corporations shall be brought within the time limited by the laws of the state under which they are incorporated, and not after. This section shall not be construed so as to extend the time under which such actions may be maintained under the laws of this State.

History

Source.

V.S. 1947, § 1694. P.L. § 1653. G.L. § 1854. P.S. § 1553. 1900, No. 34 , § 1.

§ 511. Civil action.

A civil action, except one brought upon the judgment or decree of a court of record of the United States or of this or some other state, and except as otherwise provided, shall be commenced within six years after the cause of action accrues and not thereafter.

HISTORY: Amended 1959, No. 261 , § 3.

History

Source.

V.S. 1947, § 1689. P.L. § 1648. G.L. § 1849. 1915, No. 88 , § 1. P.S. § 1550. V.S. § 1199. R.L. § 959. G.S. 63, § 5. R.S. 58, § 5. R. 1797, p. 596, §§ 7, 8. R. 1787, p. 92.

Amendments

—1959. Amended generally to apply to civil actions instead of actions of contract, replevin and tort.

CROSS REFERENCES

Statute of limitations for breach of sales contract, see 9A V.S.A. § 2-725.

Notes to Opinions

II. PARTICULAR ACTIONS.

Support contracts.

—Generally.

Action brought for damages sustained by corporation by reason of negligence of its directors or trustees was an action in tort, and it was necessary to commence such action within six years after cause of action accrued. 1940 Vt. Op. Att'y Gen. 115.

Action for negligence against bank trustees for failure to give notice of surety of defalcation of bonded employee must be commenced within six years of final date notice could have been given, which was date action accrued. 1940 Vt. Op. Att'y Gen. 115.

—Generally.

Action brought for damages sustained by corporation by reason of negligence of its directors or trustees was an action in tort, and it was necessary to commence such action within six years after cause of action accrued. 1940 Vt. Op. Att'y Gen. 115.

Action for negligence against bank trustees for failure to give notice of surety of defalcation of bonded employee must be commenced within six years of final date notice could have been given, which was date action accrued. 1940 Vt. Op. Att'y Gen. 115.

ANNOTATIONS

I. GENERALLY.
Applicability.

Vermont case law does not appear to establish a common law cause of action for predatory lending. Regarding 9 V.S.A. § 2453 , assuming arguendo that such a claim could be brought under Vermont’s Unfair and Deceptive Trade Practices Act, 9 V.S.A. § 2451 et seq., it would be governed by Vermont’s general six-year statute of limitations on civil claims, 12 V.S.A. § 511 , 9 V.S.A. § 2451 et seq. Monty v. U.S. Bank, N.A., 2013 Bankr. LEXIS 2355 (Bankr. D. Vt. June 10, 2013).

Mere fact that economic harm is alleged will not invariably invoke the general six-year statute of limitations applicable in civil actions where the gravamen or essence of the claim remains personal injury. Thus, the case had to be remanded for the trial court to consider whether the claims for economic harm were sufficiently distinct from the claims for emotional distress to be governed by the six-year statute of limitations and therefore remained timely. Eaton v. Prior, 2012 VT 54, 192 Vt. 249, 58 A.3d 200, 2012 Vt. LEXIS 56 (2012).

Six-year statute of limitations applied to malpractice claim brought by mother against psychologist with whom she contracted in connection with custody dispute; although mother’s claim sought personal injury damages for emotional distress, to which a three-year limitation period would normally apply, some of the damages she sought were for economic losses that did not constitute personal injuries, and thus the six-year limitation period applied. Politi v. Tyler, 170 Vt. 428, 751 A.2d 788, 2000 Vt. LEXIS 40 (2000).

Court was required to look to underlying harm in determining applicable statute of limitations, and thus indemnification action for damage to condominiums was properly categorized as an action for damage to real property as opposed to personal property; same limitation period and date of accrual was therefore to be applied to indemnity action as would be applied to underlying action. Investment Properties, Inc. v. Lyttle, 169 Vt. 487, 739 A.2d 1222, 1999 Vt. LEXIS 234 (1999).

The nature of the harm done, rather than plaintiff’s characterization of the action, is the determining factor in construing the applicability of this section. Stevers v. E. T. & H. K. Ide Co., 148 Vt. 12, 527 A.2d 658, 1987 Vt. LEXIS 445 (1987).

Complaint alleging that use of insecticide in barn killed one cow and caused damage to others stated a cause of action for damage to personal property within the meaning of section 512(5) of this title, notwithstanding plaintiff’s assertion that the complaint sounded in fraud and should be governed by this section because he had purchased the insecticide under the representation that it was safe for spraying animals. Stevers v. E. T. & H. K. Ide Co., 148 Vt. 12, 527 A.2d 658, 1987 Vt. LEXIS 445 (1987).

Determination of applicable limitation period depends on nature of the harm suffered rather than nature of action brought. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

It is the nature of the harm done which determines which limitations provision applies. Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

Burden of proof.

Burden of proving that claim is barred by statute of limitations rests on party asserting defense. Fucci v. Moseley & Fucci Assocs., 170 Vt. 626, 751 A.2d 760, 2000 Vt. LEXIS 5 (2000) (mem.).

Burden of proving that claim was barred by statute rested on party asserting bar. Goodyear Metallic Rubber Co. v. Baker's Est., 81 Vt. 39, 69 A. 160, 1908 Vt. LEXIS 114 (1908); New England Fire Ins. Co. v. Haynes, 71 Vt. 306, 45 A. 221, 1899 Vt. LEXIS 179 (1899).

Control by court.

Subsection (a) of this rule, allowing the “court [to] exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence,” does not allow courts to sidestep the call of V.R.C.P. 43(a) for testimony “orally in open court.” State v. Carroll, 2003 VT 57, 175 Vt. 571, 830 A.2d 89, 2003 Vt. LEXIS 139 (2003) (mem.).

Demand.

Where a demand is necessary to perfect claim, statute only runs from demand made. Thrall v. Estate of Mead, 40 Vt. 540, 1868 Vt. LEXIS 44 (1868); Stanton v. Estate of Stanton, 37 Vt. 411, 1865 Vt. LEXIS 3 (1865); Page v. Thrall, 11 Vt. 230, 1839 Vt. LEXIS 54 (1839); Staniford v. Tuttle, 4 Vt. 82, 1831 Vt. LEXIS 64 (1831); Hutchinson v. Parkhurst, 1 Aik. 258 (Vt. Feb. 1, 1826); Poultney v. Wells, 1 Aik. 180 (Vt. 1826).

When delay in making demand is expressly contemplated from terms of note, there is no rule of law that requires the demand to be made within statutory period for bringing an action. New England Fire Ins. Co. v. Haynes, 71 Vt. 306, 45 A. 221, 1899 Vt. LEXIS 179 (1899).

Where debt is payable on demand, demand will not be presumed within six years, if terms of contract or circumstances of transaction are such as to indicate that parties contemplated delay in making of demand. Smith v. Franklin, 61 Vt. 385, 17 A. 838, 1889 Vt. LEXIS 52 (1889).

Where promissory note payable “five months from date” bore written consent of makers that payee might collect at any time “by discounting a proportional amount of interest that shall have been paid in advance”, statute began to run at once, without demand and without tender of such “proportional amount.” Dawley v. Wheeler, 52 Vt. 574, 1880 Vt. LEXIS 184 (1880).

No presumption of demand and refusal arose from lapse of time, but rather the contrary, and statute had not run upon note. Beeman v. Cook, 48 Vt. 201, 1876 Vt. LEXIS 9 (1876).

Creditor may be guilty of such unreasonable neglect in omitting to make demand as will set statute in operation without demand. Thrall v. Estate of Mead, 40 Vt. 540, 1868 Vt. LEXIS 44 (1868).

Where instrument itself indicated that calls for payment were to be indefinitely prospective, and to be made as might suit wants and convenience of payee, there was no ground upon which law could assume any fixed point, as limit to reasonable time for making demand, and therefrom give operation to statute of limitations. Stanton v. Estate of Stanton, 37 Vt. 411, 1865 Vt. LEXIS 3 (1865).

When statute was pleaded to an action on promissory note payable “when demanded,” plaintiff would not be allowed to prove note had been lost for a time, in order to rebut presumption that a demand had been made. Kingsbury v. Butler, 4 Vt. 458, 1832 Vt. LEXIS 59 (1832).

Demand may as well be presumed, as any other fact, from lapse of time and such dealings between parties as render it very improbable that claim could have been forgotten while it was worthy of any consideration. Staniford v. Tuttle, 4 Vt. 82, 1831 Vt. LEXIS 64 (1831).

Estoppel.

In absence of either a promise or any misrepresentation or concealment of a fraudulent character, there cannot be an equitable estoppel precluding a defendant from setting up the bar of the statute of limitations, and existence of family relationship did not allow brother to avoid bar of statute of limitations in his suit for specific performance. White v. White, 136 Vt. 271, 388 A.2d 386, 1978 Vt. LEXIS 732 (1978).

Where brother and three sisters were heirs of equal standing to real estate and sisters agreed prior to closing of the estate to sell their interests to brother, and one sister later promised to perform, even assuming brother was entitled to rely on the new promise and it was an attempt to perform raising estoppel as a bar to claim statute of limitations applied, there could be no estoppel where brother’s specific performance action came more than seven years after the new promise. White v. White, 136 Vt. 271, 388 A.2d 386, 1978 Vt. LEXIS 732 (1978).

Law and chancery.

This section applied only to actions at law. Spear & Carlton v. Newell, 13 Vt. 288, 1841 Vt. LEXIS 61 (1841).

In cases where courts of law and equity had concurrent jurisdiction, and claim was barred at law, it would not be suffered to be revived in court of equity. Tharp v. Tharp, 15 Vt. 105, 1843 Vt. LEXIS 15 (1843).

—Generally.

For purposes of the six-year statute of limitations, appellant was placed on inquiry notice by April 2008, when he learned that a deed had been recorded which allegedly transferred title out of his name into someone else’s, and when he was also informed by the mortgagee that an unauthorized transfer of the property had occurred, or at the latest in May 2008, when his bankruptcy attorney conducted a title search in relation to his bankruptcy proceedings and discovered the conveyance. Jadallah v. Town of Fairfax, 2018 VT 34, 207 Vt. 413, 186 A.3d 1111, 2018 Vt. LEXIS 32 (2018).

Trial court did not err in determining that plaintiffs’ claim for legal malpractice accrued before the conclusion of the appeal in the underlying proceeding. Fritzeen v. Gravel, 2003 VT 54, 175 Vt. 537, 830 A.2d 49, 2003 Vt. LEXIS 92 (2003) (mem.).

Cause of action for negligent misrepresentation and consumer fraud in connection with the purchase of a house accrued when plaintiffs received a letter stating that the property was zoned as a single-family dwelling and that multiple-family housing was not allowed in the district. Galfetti v. Berg, Carmolli & Kent Real Estate Corp., 171 Vt. 523, 756 A.2d 1229, 2000 Vt. LEXIS 131 (2000) (mem.).

In school district’s action against architects alleging negligent design of leaky roof of school building in violation of contract for architectural services, court would not hold that statute of limitations did not begin to run until the plaintiff discovered the precise cause of the leaks. Union School District #20 v. Lench, 134 Vt. 424, 365 A.2d 508, 1976 Vt. LEXIS 694 (1976).

As a general rule, a cause of action accrues when the act upon which the legal action is based took place, not when the act is discovered. In re Peterson, 93 B.R. 323, 1988 Bankr. LEXIS 2277 (Bankr. D. Vt. 1988).

Rule that the cause of action shall be deemed to accrue as of the date of the discovery of the injury should be read into six-year statute of limitations for civil actions. University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354, 1989 Vt. LEXIS 141 (1989).

Insured’s action to recover uninsured motorist benefits accrued two months after she retained legal counsel, by which time counsel should have discovered motorist’s uninsured status and communicated it to insured, thereby making insured’s claim one timely filed for purposes of Vermont’s 6 year statute of limitations. Kauffman v. State Farm Mutual Automobile Ins. Co., 857 F. Supp. 23, 1994 U.S. Dist. LEXIS 9544 (D. Vt. 1994).

Right of action accrues when plaintiff can first sue for and recover demand, and statute begins to run from that date. Lycoming Fire Ins. Co. v. Batcheller, 62 Vt. 148, 19 A. 982, 1890 Vt. LEXIS 84 (1890); Farnham v. Thomas, 56 Vt. 33, 1884 Vt. LEXIS 47 (1884).

Taking out of writ was commencement of action within statute of limitations. Chapman v. Goodrich, 55 Vt. 354, 1883 Vt. LEXIS 43 (1883); Allan v. Mann, 1 D. Chip. 94 (Vt. 1797).

Computation of time and tolling of statute, see also annotations under subch. 3 of this chapter.

Pleading.

In action on a note executed in Florida more than six years prior to bringing of suit, on which the printed word “seal” appeared after signature, six-year statute of limitations was well pleaded on plaintiff’s exception to overruling of demurrer. Coral Gables, Inc. v. Christopher, 108 Vt. 414, 189 A. 147, 1937 Vt. LEXIS 139 (1937).

Where one by contract in writing had bound himself to convey certain lands which he had bid off at vendue, statute of limitations was good plea in a bill in chancery brought by other contracting party to compel him to specific performance, or to pay over what he had received on sale of lands. Adm'r of Collard v. Tuttle, 4 Vt. 491, 1832 Vt. LEXIS 95 (1832).

Where debt was barred by statute, creditor could not plead it in bar to suit brought by debtor against him in reference to an independent transaction. Parker v. National Life Ins. Co., 61 Vt. 65, 17 A. 724, 1888 Vt. LEXIS 112 (1888).

Purpose.

Statute of limitations is not regulation of public policy, but for benefit of individuals. State Trust Co. v. Sheldon, 68 Vt. 259, 35 A. 177, 1895 Vt. LEXIS 32 (1895).

Waiver of statute.

Right to plead statute is a personal privilege of which debtor may avail himself or not as he chooses. Hartford v. School District, 69 Vt. 147, 37 A. 252, 1896 Vt. LEXIS 23 (1896).

It is competent for the makers of promissory note to stipulate therein that they will waive statute. Lyndon Sav. Bank v. International Co., 78 Vt. 169, 62 A. 50 (1905), same case 75 Vt. 224, 54 A. 191, 18 B.U.L. Rev.; State Trust Co. v. Sheldon, 68 Vt. 259, 35 A. 177, 1895 Vt. LEXIS 32 (1895); Burton v. Stevens, 24 Vt. 131, 1852 Vt. LEXIS 10 (1852).

“Good at any time,” endorsed on note and signed and dated by the payor, was not a waiver of statute, but was merely an acknowledgment of debt evidenced by note, from which promise to pay may be implied. Rowell v. Estate of Lewis, 72 Vt. 163, 47 A. 783, 1900 Vt. LEXIS 107 (1900).

Abolished school district had right to pay just debt though barred by statute, and could insist that such debt be deducted in determining balance due from district to town. Hartford v. School District, 69 Vt. 147, 37 A. 252, 1896 Vt. LEXIS 23 (1896).

Recognizor on writ may pay costs for which he was held, though barred by statute, and recover from his principal amount so paid. Smith v. Lincoln, 54 Vt. 382, 1882 Vt. LEXIS 20 (1882).

—Generally.

For purposes of the six-year statute of limitations, appellant was placed on inquiry notice by April 2008, when he learned that a deed had been recorded which allegedly transferred title out of his name into someone else’s, and when he was also informed by the mortgagee that an unauthorized transfer of the property had occurred, or at the latest in May 2008, when his bankruptcy attorney conducted a title search in relation to his bankruptcy proceedings and discovered the conveyance. Jadallah v. Town of Fairfax, 2018 VT 34, 207 Vt. 413, 186 A.3d 1111, 2018 Vt. LEXIS 32 (2018).

Trial court did not err in determining that plaintiffs’ claim for legal malpractice accrued before the conclusion of the appeal in the underlying proceeding. Fritzeen v. Gravel, 2003 VT 54, 175 Vt. 537, 830 A.2d 49, 2003 Vt. LEXIS 92 (2003) (mem.).

Cause of action for negligent misrepresentation and consumer fraud in connection with the purchase of a house accrued when plaintiffs received a letter stating that the property was zoned as a single-family dwelling and that multiple-family housing was not allowed in the district. Galfetti v. Berg, Carmolli & Kent Real Estate Corp., 171 Vt. 523, 756 A.2d 1229, 2000 Vt. LEXIS 131 (2000) (mem.).

In school district’s action against architects alleging negligent design of leaky roof of school building in violation of contract for architectural services, court would not hold that statute of limitations did not begin to run until the plaintiff discovered the precise cause of the leaks. Union School District #20 v. Lench, 134 Vt. 424, 365 A.2d 508, 1976 Vt. LEXIS 694 (1976).

As a general rule, a cause of action accrues when the act upon which the legal action is based took place, not when the act is discovered. In re Peterson, 93 B.R. 323, 1988 Bankr. LEXIS 2277 (Bankr. D. Vt. 1988).

Rule that the cause of action shall be deemed to accrue as of the date of the discovery of the injury should be read into six-year statute of limitations for civil actions. University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354, 1989 Vt. LEXIS 141 (1989).

Insured’s action to recover uninsured motorist benefits accrued two months after she retained legal counsel, by which time counsel should have discovered motorist’s uninsured status and communicated it to insured, thereby making insured’s claim one timely filed for purposes of Vermont’s 6 year statute of limitations. Kauffman v. State Farm Mutual Automobile Ins. Co., 857 F. Supp. 23, 1994 U.S. Dist. LEXIS 9544 (D. Vt. 1994).

Right of action accrues when plaintiff can first sue for and recover demand, and statute begins to run from that date. Lycoming Fire Ins. Co. v. Batcheller, 62 Vt. 148, 19 A. 982, 1890 Vt. LEXIS 84 (1890); Farnham v. Thomas, 56 Vt. 33, 1884 Vt. LEXIS 47 (1884).

Taking out of writ was commencement of action within statute of limitations. Chapman v. Goodrich, 55 Vt. 354, 1883 Vt. LEXIS 43 (1883); Allan v. Mann, 1 D. Chip. 94 (Vt. 1797).

Computation of time and tolling of statute, see also annotations under subch. 3 of this chapter.

II. PARTICULAR ACTIONS.
Attorney’s employment.

Where attorney’s employment in suit was continuous, statute did not begin to run on his charges until case ended, or he was otherwise discharged. Noble v. Bellows, 53 Vt. 527 (1877); Davis v. Smith, 48 Vt. 52 (1875), same case 43 Vt. 269.

Bank account.

Statute was not bar to action by bank depositor to recover amount of overcharge in his account, notwithstanding that plaintiff, more than six years before commencement of suit, drew out balance due as shown by bank books and closed his account for some two years. Goodell v. Brandon Nat'l Bank, 63 Vt. 303, 21 A. 956, 1891 Vt. LEXIS 106 (1891).

Book account.

There was no difference between actions of assumpsit and book account, in respect of what items are barred by statute of limitations. Holt v. Howard, 77 Vt. 49, 58 A. 797, 1904 Vt. LEXIS 94 (1904).

When it appeared that plaintiff and defendant intended that all their business deal except notes should be mutual and open account, and that charges of each should apply in payment of the charges of other, all such business deal except notes should, in respect of statute, be reciprocally applied as proper matter of an open and current book account. Holt v. Howard, 77 Vt. 49, 58 A. 797, 1904 Vt. LEXIS 94 (1904).

In action of book account one party could credit other with items which were proper items of credit and thereby avoid operation of statute, although other party claimed nothing by reason of such items and insisted that they should not be credited to him. Bates v. Sabin, 64 Vt. 511, 24 A. 1013 (1892); Davis v. Smith, 48 Vt. 52 (1875), same case 43 Vt. 269.

Breach of fiduciary duty.

Defendants’ counterclaim against a trustee’s estate for breach of fiduciary duty was time-barred. At the time they rejected the trustee’s proposition in 1993, defendants knew that the trustee had been both a trustee and a beneficiary since the trust’s creation, and defendants were sufficiently informed of the circumstances surrounding ownership of the property in question to enable them to assess the trustee’s actions and seek redress if they believed she had breached her fiduciary duties as trustee. In re Estate of Alden v. Alden, 2011 VT 64, 190 Vt. 401, 35 A.3d 950, 2011 Vt. LEXIS 71 (2011).

Buildings, recovery of.

Where tenant, or one erecting building by license on land of another, permitted them to remain in the possession of owner of the freehold for more than six years after expiration of term, or abandonment of possession, statute would bar all claim for their recovery. Preston v. Briggs, 16 Vt. 124, 1844 Vt. LEXIS 26 (1844).

Condemnation.

The general statute of limitations for civil actions applies to inverse condemnation actions. Department of Forests, Parks & Recreation v. Town of Ludlow Zoning Bd., 2004 VT 104, 177 Vt. 623, 869 A.2d 603, 2004 Vt. LEXIS 314 (2004) (mem.).

Contract to assume liability.

Where contract between ski lift resort and manufacturer of ski lift whereby resort, which purchased the lift, assumed all legal responsibility for personal injury resulting from operation of the lift, was basis upon which plaintiff, who obtained judgment against manufacturer in personal injury action alleging negligent design and manufacture, sought to enforce the judgment against resort, six year statute of limitations for actions founded on contract began to run on date of injury and the action was barred where the six years were up before action was brought. Furlon v. Haystack Mountain Ski Area, Inc., 136 Vt. 266, 388 A.2d 403, 1978 Vt. LEXIS 731 (1978).

Contract to sell.

The four-year statute of limitations contained in 9A V.S.A § 2—275, not the general six-year statute of limitations in this section, applies to deficiency actions on retail installment sales contracts. DaimlerChrysler Services North America v. Ouimette, 2003 VT 47, 175 Vt. 316, 830 A.2d 38, 2003 Vt. LEXIS 88 (2003).

Where action for specific enforcement of oral contract to sell came more than six years after letter refusing to sell and describing the transaction, action was barred by the Statute of Limitations. Bell v. Town of Grafton, 133 Vt. 1, 328 A.2d 408, 1974 Vt. LEXIS 274 (1974).

Where brother and three sisters were heirs of equal standing to real estate and sisters agreed prior to closing of estate to sell their interests to brother, brother’s reliance on the promise did not estop sisters from using statute of limitations as a defense in brother’s action for specific performance of the agreement. White v. White, 136 Vt. 271, 388 A.2d 386, 1978 Vt. LEXIS 732 (1978).

Contracts.

Cause of action for breach of contract accrues when the breach occurs, not when it is discovered. Alexander v. Gerald E. Morrissey, Inc., 137 Vt. 20, 399 A.2d 503, 1979 Vt. LEXIS 933 (1979).

Conversion.

Mere neglect of defendant who took up plaintiff’s stray heifer to post and advertise it as required by statute did not constitute conversion thereof so as to start the statute before demand and refusal. Andrews v. Carl, 77 Vt. 172, 59 A. 167, 1904 Vt. LEXIS 111 (1904).

Where defendant purchased in good faith plaintiff’s personal property of one who had its possession but no right to sell it, and used it as his own for more than six years, claiming title thereto, there was a conversion, but statute commenced to run at the time of sale and was a bar to an action of trover. Merrill v. Bullard, 59 Vt. 389, 8 A. 157, 1887 Vt. LEXIS 105 (1887).

Deferred compensation.

Fact that there was no fixed date for corporation’s payment of deferred compensation supported conclusion that its obligation to pay did not come due until shareholder demanded payment, and thus shareholder’s claim accrued when corporation refused his demand. Fucci v. Moseley & Fucci Assocs., 170 Vt. 626, 751 A.2d 760, 2000 Vt. LEXIS 5 (2000) (mem.).

Discrimination.

When a couple claimed that a town and its officials discriminated against them in zoning and permitting decisions on the basis of their sexual orientation, the six-year statute of limitations was applicable, because the nature of the alleged harms was mixed; the couple claimed the town’s actions harmed their rights to privacy and quiet enjoyment of property, fostered a hostile environment, and caused financial harm in terms of attorney fees and bankruptcy. Ernst v. Kauffman, 50 F. Supp. 3d 553, 2014 U.S. Dist. LEXIS 141394 (D. Vt. 2014), app. dismissed, 814 F.3d 116, 2016 U.S. App. LEXIS 3024 (2d Cir. 2016).

The six-year “catch all” statute of limitations is suitable for actions brought for recovery of attorney’s fees and costs by the prevailing party under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. J.B. by and through C.B. v. Essex-Caldonia Super., 943 F. Supp. 387, 1996 U.S. Dist. LEXIS 16295 (D. Vt. 1996).

Three year personal injury statute of limitations, rather than six year statute governing civil actions, applied to claims brought under federal and state law alleging discrimination on basis of handicap. Morse v. University of Vermont, 776 F. Supp. 844, 1991 U.S. Dist. LEXIS 16244 (D. Vt. 1991), aff'd in part and rev'd in part, 973 F.2d 122, 1992 U.S. App. LEXIS 19365 (2d Cir. 1992).

Guardian’s account.

Statute was not applicable to account of guarding against his ward while relation subsisted; and after its termination, lapse of time would not bar guardian’s claim when delay was sufficiently explained by circumstances of case. Kimball v. Ives, 17 Vt. 430, 1845 Vt. LEXIS 56 (1845).

Indemnification.

Trial court erred in applying three-year statute of limitations to bar indemnification claims against architects for failed attempt to correct problems in condominium project; action was properly considered as one for damage to real property, not personal property, and therefore general six-year statute of limitations applied. Investment Properties, Inc. v. Lyttle, 169 Vt. 487, 739 A.2d 1222, 1999 Vt. LEXIS 234 (1999).

Lost profits.

Landowners’ claim for lost profits stemming from engineering firm’s defective subdivision survey could not be construed as a claim for damage to personal property, and claim was therefore governed by six-year statute of limitations applicable to civil actions generally, rather than three-year statute of limitations governing actions for damage to personal property. Bull v. Pinkham Engineering Assocs., 170 Vt. 450, 752 A.2d 26, 2000 Vt. LEXIS 50 (2000).

Malicious prosecution.

Where plaintiff alleged that defendants violated his rights when initiating counterclaim against him and he sought only costs for defense of his counterclaim, as opposed to alleging any emotional or physical harm, his claim fell within statute of limitations under this section and not that for injuries to the person under 12 V.S.A. § 512 . Bentley v. Northshore Development, Inc., 935 F. Supp. 500, 1996 U.S. Dist. LEXIS 12395 (D. Vt. 1996).

Malpractice.

In attorney malpractice case arising from defendant’s allegedly deficient representation in juvenile proceeding in which State sought determination that plaintiff’s child was in need of care and supervision, plaintiff’s claims for damages resulting from costs incurred to secure the return of her child were governed by six-year limitation period for actions involving economic losses that do not constitute personal injuries. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

At trial for attorney malpractice arising out of defendant’s allegedly deficient representation in juvenile proceeding in which state sought determination that child was in need of care and supervision, where defendant asserted valid defense of three-year statute of limitations as to claims of emotional distress and there were no genuine issues of material fact, Trial Court properly granted defendant summary judgment as to those claims, but reversal and remand was required as to claims of economic loss, which were governed by six-year limitation period. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

The discovery rule applies to legal malpractice actions, and discovery of both the injury and its cause is required to determine when the cause of action accrues. Howard Bank v. Estate of Pope, 156 Vt. 537, 593 A.2d 471, 1991 Vt. LEXIS 96 (1991).

Suit against hospital for damages allegedly caused by injection of wrong substance could not be brought within limitation period of this section where it could not be found that Vermont Supreme Court would recognize a cause of action in contract under such facts. Mauran v. Mary Fletcher Hospital, 318 F. Supp. 297, 1970 U.S. Dist. LEXIS 9833 (D. Vt. 1970).

While Vermont Supreme Court would probably rule that administration by a hospital to a patient of anesthetics carries with it implied warranties for the breach of which an action would lie, administration of wrong drug, that is, insulin instead of anesthetic, did not breach such warranties, if applicable, and breach of warranties could not be used as basis for bringing action under this section. Mauran v. Mary Fletcher Hospital, 318 F. Supp. 297, 1970 U.S. Dist. LEXIS 9833 (D. Vt. 1970).

Marriage, breach of promise of.

In case of mutual promise to marry there was no right of action until there was a breach of promise; and until such breach statute did not commence to run. Dyer v. Lalor, 94 Vt. 103, 109 A. 30, 1920 Vt. LEXIS 175 (1920).

Mortgage notes.

In the case of a promissory note secured by a mortgage, the impetus of securing a debt with a mortgage is to provide the mortgagee with certain protections that the promissory note alone does not provide; among these protections, to which both parties to a mortgage implicitly agree, is an extended statute of limitations which allows a mortgagee to enforce the debt beyond the life of the promissory note. Huntington v. McCarty, 174 Vt. 69, 807 A.2d 950, 2002 Vt. LEXIS 146 (2002).

Award of summary judgment to defendant on the grounds that plaintiff’s claims were barred by the statute of limitations was reversed because there existed numerous genuine issues of material fact regarding events which could constitute part of a “continuous practice and policy of discrimination,” tolling the statute of limitations from the time the last discriminatory act, performed in furtherance of the discriminatory practice, took place. Lee v. University of Vermont, 173 Vt. 626, 800 A.2d 444, 2002 Vt. LEXIS 59 (2002).

In action for violations of the Vermont Fair Employment Practices Act prohibiting discrimination against qualified individuals with disabilities, plaintiff’s claim for emotional distress resulting from her loss of employment was governed by the three-year limitation period under 12 V.S.A. § 512(4) , while the six-year limitation of this section governed her claim for economic loss of income and benefits. Egri v. United States Airways, Inc., 174 Vt. 443, 804 A.2d 766, 2002 Vt. LEXIS 139 (2002).

Note secured by real estate mortgage outlaws in six years from time cause of action thereon accrues. Houghton v. Tolman, 74 Vt. 467, 52 A. 1032, 1902 Vt. LEXIS 160 (1902).

Action for interest on mortgage note was barred by statute when an action for principal was so barred. Porter's Adm's v. Shattuck's Est., 75 Vt. 270, 54 A. 958, 1903 Vt. LEXIS 127 (1903).

Mutual account.

In mutual accounts statute begins to run from date of last item of credit proved on trial and not from that of last item of debt. George v. Vermont Farm Mach. Co., 65 Vt. 287, 26 A. 722, 1893 Vt. LEXIS 55 (1893); Hodge v. Manley, 25 Vt. 210, 1853 Vt. LEXIS 25 (1853); Abbott v. Keith, 11 Vt. 525, 1839 Vt. LEXIS 117 (1839); Chipman v. Bates, 5 Vt. 143, 1831 Vt. LEXIS 77 (1831).

When account was all on one side, it had not character of mutual account, and as to statute of limitations, cause of action arose from date of each item, and they were respectively barred when more than six years had intervened between their dates and commencement of suit. Hodge v. Manley, 25 Vt. 210, 1853 Vt. LEXIS 25 (1853).

Negligence.

Plaintiffs’ action for negligence and breach of contract was time-barred because by 2005 at the latest, plaintiffs were aware of facts sufficient to lead any reasonable homeowner to investigate the condition of their roof when they had experienced a major, unprecedented leak for which they filed an insurance claim, rust spots had appeared, the ice damning problem which the roof was supposed to mitigate was worse than ever, and plaintiffs had attempted various repairs. While they might not have known the extent of the defect in the roof, it was apparent by 2005 that it was defective. Abajian v. Truexcullins, Inc., 2017 VT 74, 205 Vt. 331, 176 A.3d 524, 2017 Vt. LEXIS 94 (2017).

Cause of action alleging that fire was caused by improper design and construction of fireplace in addition to plaintiff’s home which defendant built accrued when plaintiff knew or reasonably ought to have known of the damage allegedly caused by defendant, not when the negligent act occurred. Congdon v. Taggart Brothers, 153 Vt. 324, 571 A.2d 656, 1989 Vt. LEXIS 249 (1989).

Pledge.

When corporation had immediate notice from pledgee that certain of its corporate stock was pledged as collateral security, statute did not run in favor of corporation, which had acquired subsequent lien, as against pledgee’s right to enforce pledge. White River Sav. Bank v. Capital Sav. Bank & Trust Co., 77 Vt. 123, 59 A. 197, 1904 Vt. LEXIS 101 (1904).

Promissory notes.

Trustee’s suit to recover collateral under a security agreement was not time-barred, because the general six-year statute of limitations did not begin to run until 2013, when the borrower failed to pay the balance due 45 days after the trustee declared a default and gave the borrower notice of his opportunity to cure, as opposed to 2008, when the trustee sent a letter which simply stated that no payment had been made under the promissory note, laid out the amounts currently due at that time, and offered to restructure the debt. Besaw v. Giroux, 2018 VT 138, 209 Vt. 388, 205 A.3d 518, 2018 Vt. LEXIS 236 (2018).

In action on promissory note executed in Florida more than six years prior to bringing of suit, on which the printed word “seal” appeared after signature, statute was well pleaded on plaintiff’s exception to overruling of demurrer. Coral Gables, Inc. v. Christopher, 108 Vt. 414, 189 A. 147, 1937 Vt. LEXIS 139 (1937).

Determination that suit on note was barred by statute in Vermont did not affect its validity as outstanding obligation or its enforceability in any other jurisdiction. Coral Gables, Inc. v. Christopher, 108 Vt. 414, 189 A. 147, 1937 Vt. LEXIS 139 (1937).

Guaranty that note, payable at a future day, “is due and that the maker has nothing to file against it,” was to be considered as referring to time when note arrived at maturity, and statute did not commence running on such guaranty until note became due. Adams v. Clarke, 14 Vt. 9, 1842 Vt. LEXIS 1 (1842).

Promise to pay certain notes, signed by promisee and another, was broken when notes became payable, and statute then began to run. Crofoot v. Moore, 4 Vt. 204, 1831 Vt. LEXIS 73 (1831).

Where charter of insurance company provided that directors might, in default of payment of any assessment on premium note, sue for and recover whole amount of such note, statute began to run against whole note from time when an assessment became due. Lycoming Fire Ins. Co. v. Batcheller, 62 Vt. 148, 19 A. 982, 1890 Vt. LEXIS 84 (1890).

Where decedent accepted provisions of his wife’s will, which gave him for life interest on certain notes held by her against him, since notes were not collectible by wife’s executor during the husband’s life, operation of statute was suspended during that period. Church’s Ex’r v. Church’s Est., 80 Vt. 228, 67 A. 549 (1907), same case 78 Vt. 360, 63 A. 228.

Demand, necessity for, see note 5 under this section.

Recovery of insurance proceeds.

In suit by insurance company to recover proceeds paid out when insured barn burned, limitations period began to run on date when insurer paid proceeds. Stankiewicz v. Estate of LaRose, 151 Vt. 453, 561 A.2d 400, 1989 Vt. LEXIS 80 (1989).

Securities fraud.

Since the Vermont Securities Act, 9 V.S.A. § 4201 et seq., is no more akin than the Vermont common law on fraud to federal securities fraud law (Rule 10b-5 of the Securities and Exchange Commission Rules), where federal law provided that the State statutes of limitation best effectuating the policies of the federal statute were to govern a federal action, court would not depart from the settled rule that the statute of limitations for common law (this section) applied. Bartels v. Algonquin Properties, Ltd., 471 F. Supp. 1132, 1979 U.S. Dist. LEXIS 13555 (D. Vt. 1979), disapproved, Ceres Partners v. GEL Assoc., 918 F.2d 349, 1990 U.S. App. LEXIS 19741 (2d Cir. 1990).

Sheriff’s recognizance.

In action of scire facias upon official recognizance of sheriff and his sureties, period of limitation was six years after cause of action accrued. Brainerd v. Stewart, 33 Vt. 402, 1860 Vt. LEXIS 114 (1860).

Strict products liability.

Since all prior forms of action are abolished and there is only one “civil action” in this jurisdiction, it is not necessary to categorize an action based on strict products liability as either tortious or contractual for the purpose of determining which statute of limitations is applicable. Kinney v. Goodyear Tire & Rubber Co., 134 Vt. 571, 367 A.2d 677, 1976 Vt. LEXIS 731 (1976).

Support contracts.

Where son had no right of action by terms of contract to enforce payment for support of his stepmother during his father’s life, administrator of latter’s estate could not rely upon statute as bar to any part of son’s claim on account of lapse of time before father’s death. Sprague v. Sprague's Est., 30 Vt. 483, 1858 Vt. LEXIS 59 (1858).

—Generally.

Six-year limitations period for this section governs cause of action against auctioneer for fraudulently conducted auction. King v. Federal Deposit Insurance Corp., 785 F. Supp. 58, 1992 U.S. Dist. LEXIS 3081 (D. Vt. 1992).

Trial court correctly applied statute of limitation contained in this section to federal action brought by union for failure to provide workers with notice of impending lay-offs; this section was applicable to wrongful discharge actions, and contract limitation period contained in this section best approximated legislative intent of governing federal act. United Paperworkers Local 340 v. Specialty Paperboard, Inc., 999 F.2d 51, 1993 U.S. App. LEXIS 18608 (2d Cir. 1993).

Where there was continuous injury without fresh violence, statute could bar only back of six years from bringing of suit. Wheeler v. Town of St. Johnsbury, 87 Vt. 46, 87 A. 349, 1913 Vt. LEXIS 162 (1913).

Where sheriff made irregular levy of execution on real estate so that no title passed to creditor, cause of action was complete on his failure to make proper levy and statute commenced running from that time. Hall v. Tomlinson, 5 Vt. 228, 1833 Vt. LEXIS 32 (1833).

Unjust enrichment.

Because a cause of action for unjust enrichment under the provision of the Restatement (Third) of Restitution and Unjust Enrichment concerning unmarried cohabitants did not accrue until the domestic partnership ended, and the trial court made the unchallenged finding that the relationship between the parties lasted until November 2015, the statute of limitations had not run on plaintiff’s cause of action at the time of the filing of the complaint. McLaren v. Gabel, 2020 VT 8, 211 Vt. 591, 229 A.3d 422, 2020 Vt. LEXIS 11 (2020).

In an unjust enrichment action, the trial court could have found, but did not, that a separation agreement contained a requirement to sequester stock sale proceeds although it was not explicit on this point. The trial court could not substitute for such a finding a disputed assertion of plaintiff’s position, attributing to plaintiff a waiver of any alternative position; therefore, the court could not affirm the trial court’s holding that plaintiff’s action was barred by the statute of limitations. Mueller v. Mueller, 2012 VT 59, 192 Vt. 85, 54 A.3d 168, 2012 Vt. LEXIS 55 (2012).

This section applies to action based on theory of unjust enrichment. Stankiewicz v. Estate of LaRose, 151 Vt. 453, 561 A.2d 400, 1989 Vt. LEXIS 80 (1989).

Use and enjoyment of property.

Claim of total disruption of water supply to claimant’s houses with intent to inconvenience claimant without legal right, resulting in damage to claimant in that he was inconvenienced, harassed, embarrassed, and his reputation impaired, did not involve injury to the person within meaning of three year statute of limitations for injury to the person; rather, claimant alleged a tortious act resulting in an interference with the use and enjoyment of his property, and the general six year statute of limitations for civil cases applied. Alpstetten Association, Inc. v. Kelly, 137 Vt. 508, 408 A.2d 644, 1979 Vt. LEXIS 1066 (1979).

Workers’ compensation.

Any proceeding for workers’ compensation benefits in an action in contract, and as such, the applicable statute of limitations is six years. Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 507 A.2d 952, 1985 Vt. LEXIS 417 (1985).

Proceeding for compensation under Workmen’s Compensation Act was action of contract within the meaning of statute. Norman v. American Woolen Co., 117 Vt. 28, 84 A.2d 125, 1951 Vt. LEXIS 97 (1951); Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 191 A. 920, 1937 Vt. LEXIS 121 (1937).

Proceeding under Workmen’s Compensation Act was barred under this section unless commenced within six years of date of injury by application to Commissioner of Industries for hearing and award under 21 V.S.A. § 663 . Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 191 A. 920, 1937 Vt. LEXIS 121 (1937).

—Generally.

Six-year limitations period for this section governs cause of action against auctioneer for fraudulently conducted auction. King v. Federal Deposit Insurance Corp., 785 F. Supp. 58, 1992 U.S. Dist. LEXIS 3081 (D. Vt. 1992).

Trial court correctly applied statute of limitation contained in this section to federal action brought by union for failure to provide workers with notice of impending lay-offs; this section was applicable to wrongful discharge actions, and contract limitation period contained in this section best approximated legislative intent of governing federal act. United Paperworkers Local 340 v. Specialty Paperboard, Inc., 999 F.2d 51, 1993 U.S. App. LEXIS 18608 (2d Cir. 1993).

Where there was continuous injury without fresh violence, statute could bar only back of six years from bringing of suit. Wheeler v. Town of St. Johnsbury, 87 Vt. 46, 87 A. 349, 1913 Vt. LEXIS 162 (1913).

Where sheriff made irregular levy of execution on real estate so that no title passed to creditor, cause of action was complete on his failure to make proper levy and statute commenced running from that time. Hall v. Tomlinson, 5 Vt. 228, 1833 Vt. LEXIS 32 (1833).

Cited.

Cited in Bevins v. King, 143 Vt. 252, 465 A.2d 282, 1983 Vt. LEXIS 508 (1983); West v. Village of Morrisville, 728 F.2d 130, 1984 U.S. App. LEXIS 25445 (2d Cir. 1984); Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985); United States v. Commercial Union Insurance Co., 821 F.2d 164, 1987 U.S. App. LEXIS 7952 (2d Cir. 1987); Maynard v. Travelers Insurance Co., 149 Vt. 158, 540 A.2d 1032, 1987 Vt. LEXIS 608 (1987); Lamoureux v. Chromailoy Farm Systems, Inc., 150 Vt. 156, 549 A.2d 649, 1988 Vt. LEXIS 110 (1988); Graham v. Canadian National Ry., 749 F. Supp. 1300, 1990 U.S. Dist. LEXIS 15121 (D. Vt. 1990); Shields v. Gerhart, 155 Vt. 141, 582 A.2d 153, 1990 Vt. LEXIS 175 (1990); Rennie v. State, 171 Vt. 584, 762 A.2d 1272, 2000 Vt. LEXIS 311 (2000) (mem.).

Cited.

Cited in Morse v. University of Vermont, 973 F.2d 122, 1992 U.S. App. LEXIS 19365 (2d Cir. 1992); Schall v. Gilbert, 169 Vt. 627, 741 A.2d 286, 1999 Vt. LEXIS 236 (1999) (mem.).

Law Reviews —

For note relating to statutes of limitations for architects, see 9 Vt. L. Rev. 101 (1984).

§ 512. Assault and battery; false imprisonment; slander and libel; injuries to person or property.

Actions for the following causes shall be commenced within three years after the cause of action accrues, and not after:

  1. assault and battery;
  2. false imprisonment;
  3. slander and libel;
  4. except as otherwise provided in this chapter, injuries to the person suffered by the act or default of another person, provided that the cause of action shall be deemed to accrue as of the date of the discovery of the injury;
  5. damage to personal property suffered by the act or default of another.

HISTORY: Amended 1967, No. 32 , § 2, eff. March 16, 1967; 1975, No. 248 (Adj. Sess.), § 2.

History

Source.

V.S. 1947, § 1690. P.L. § 1649. G.L. § 1850. 1915, No. 88 , § 2. P.S. §§ 1557, 1558. V.S. §§ 1205, 1206. R.L. §§ 965, 966. G.S. §§ 7, 8. R.S. 58, §§ 6, 7. R. 1797, p. 596, § 7. R. 1787, p. 92.

Amendments

—1975 (Adj. Sess.). Subdiv. (4): Rephrased and added proviso at end of sentence.

—1967. Subdiv. (4): Added “except as otherwise provided in this chapter”.

ANNOTATIONS

Constitutionality.

On appeal from decision in attorney malpractice case, plaintiff’s State constitutional claims that application of three-year statute of limitations would violate right to a remedy at law and to an open court would not be considered where plaintiff failed to delineate how her rights under these provisions had been violated. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

Generally.

It is the nature of the harm done which determines which limitations provision applies. Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

Determination of applicable limitation period depends on nature of the harm suffered rather than nature of action brought. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

The nature of the harm done, rather than plaintiff’s characterization of the action, is the determining factor in construing the applicability of this section. Stevers v. E. T. & H. K. Ide Co., 148 Vt. 12, 527 A.2d 658, 1987 Vt. LEXIS 445 (1987).

The applicability of this section is predicated upon the nature of the harm for which recovery is sought and not upon the nature of the action brought. Kinney v. Goodyear Tire & Rubber Co., 134 Vt. 571, 367 A.2d 677, 1976 Vt. LEXIS 731 (1976).

Time of commencement of the action is computed at the date of the complaint. Jacques v. Jacques, 128 Vt. 140, 259 A.2d 779, 1969 Vt. LEXIS 214 (1969).

Taking out of writ is commencement of an action to save statute, if it is delivered for service in season to be served, and is duly served and returned. Kessler v. Emmel, 115 Vt. 54, 50 A.2d 604, 1947 Vt. LEXIS 77 (1947).

Accrual of action.

Trustee was not entitled to reopen bankruptcy case to administer previously undisclosed personal injury claim recovery, based on defective medical device, because debtor’s recovery was not property of estate since it did not accrue under Vermont law prior to petition date, given that debtor was unaware of defect until years after her case was closed, and it was not “sufficiently rooted” in her pre-bankruptcy past. In re Vasquez, 581 B.R. 59, 2018 Bankr. LEXIS 498 (Bankr. D. Vt. 2018).

Claim for custodial interference was timely under Vermont’s three-year limitations period for personal injury actions because even if custodial parent effectively discovered that her former partner had fled with their child in 2009, a reasonable person in her position would not have been on notice that her former partner’s counsel played the role that they did. If the parent’s allegations were assumed to be true, counsels’ deliberate attempts to mislead the courts would also have misled a reasonable person about the cause of the parent’s injury, as well as counsels’ potential liability for those injuries. Jenkins v. Miller, 2017 U.S. Dist. LEXIS 160793 (D. Vt. Sept. 29, 2017).

Trial court properly held that plaintiffs’ claims for emotional distress arising out of a polygraph examination were time-barred under the three-year statute of limitations for injuries to the person. Before plaintiffs received an analysis by a different polygraph examiner, they had identified nearly all of the deficiencies that formed the basis of their complaint. Eaton v. Prior, 2012 VT 54, 192 Vt. 249, 58 A.3d 200, 2012 Vt. LEXIS 56 (2012).

In an action by a mother and father, on behalf of themselves and their son, against a high school district, a union, and a State Department of Education, a district court correctly concluded that the mother’s defamation of character claim, brought on behalf of herself, was barred by the three-year statute of limitations under 12 V.S.A. § 512(3) because that claim accrued over three years earlier when the alleged defamatory statements were made. Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 2005 U.S. App. LEXIS 13319 (2d Cir. 2005).

Accrual of a cause of action in defamation may be deferred until the plaintiff discovers or, through the exercise of reasonable care and diligence, should have discovered the nature of the defamatory communication. Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74, 807 A.2d 390, 2002 Vt. LEXIS 148 (2002).

The limitations period for an action for personal injury starts to run when the plaintiff should have discovered (1) the injury, (2) its cause, and (3) the existence of a cause of action. Soutiere v. Betzdearborn, Inc., 189 F. Supp. 2d 183, 2002 U.S. Dist. LEXIS 4538 (D. Vt. 2002).

The statute of limitations did not bar an action claiming that the plaintiffs sustained neurological injury from their use of and exposure to polyacrylamide flocculents in the course of their employment where the plaintiffs did not dispute that they were aware of their injuries more than three years before the commencement of the action, but it did not appear that they knew the cause of their injuries more than three years before the commencement of the action, although they had an unsubstantiated suspicion of the cause. Soutiere v. Betzdearborn, Inc., 189 F. Supp. 2d 183, 2002 U.S. Dist. LEXIS 4538 (D. Vt. 2002).

Plaintiff’s action against bank and administrator of father’s estate for alleged conversion of her assets was filed within limitation period provided by this section, where earliest plaintiff knew or should have known of injury to her property was shortly after her father’s death. Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

Cause of action against railroad for personal injuries and property damages allegedly resulting from the application of herbicides on right-of-way adjacent to plaintiff’s property during ten-year period prior to date that veterinarian informed plaintiff samples taken from their livestock revealed the presence of herbicides was timely filed within three years of announcement by veterinarian; action accrued upon discovery of reason to believe their injuries could have been caused by herbicides. Graham v. Canadian National Ry., 749 F. Supp. 1300, 1990 U.S. Dist. LEXIS 15121 (D. Vt. 1990).

Cause of action under federal civil rights statute section 1983 in which day care licensee claimed retaliatory revocation of license accrued on date plaintiff relinquished license and withdrew application for registration as day care home pursuant to statements of department of social and rehabilitation services employee stating that plaintiff would never be licensed or registered in the future and her present license could be revoked. Shields v. Gerhart, 155 Vt. 141, 582 A.2d 153, 1990 Vt. LEXIS 175 (1990), aff'd, 163 Vt. 219, 658 A.2d 924, 1995 Vt. LEXIS 21 (1995).

Amended complaint adding new party.

Amendment of complaint to substitute defendant’s name did not relate back to date on which original complaint was filed against defendant’s father, and trial court properly ruled that plaintiff’s action was barred by statute of limitations, where plaintiff failed to argue or prove that defendant had notice of commencement of original suit, or that he knew or should have known that but for a mistake, action would have been brought against him. Bashara v. Corliss, 161 Vt. 1, 632 A.2d 30, 1993 Vt. LEXIS 87 (1993).

On appeal from dismissal of action on statute of limitations grounds, court rejected plaintiff’s argument that notice within “the period provided by law for commencing the action” in V.R.C.P. 15(c) included the time for completion of service of process, an additional 60 days; rule made no provision for notice during period for service, and plaintiff’s construction of rule would essentially extend statute of limitations beyond that provided by Legislature. Bashara v. Corliss, 161 Vt. 1, 632 A.2d 30, 1993 Vt. LEXIS 87 (1993).

In an action against a new party brought in through amendment to a preexisting complaint, the date of commencement of the action is the date plaintiff files the motion to amend the proposed complaint, irrespective of when the court grants the motion to amend. Children's Store v. Cody Enterprises, Inc., 154 Vt. 634, 580 A.2d 1206, 1990 Vt. LEXIS 159 (1990).

Under procedural rule requiring service within 30 days after filing of a complaint, dismissal for tardy service was not required where service was made to new party within 30 days of court’s granting motion to amend adding new party, notwithstanding that more than 30 days had elapsed since filing of motion to amend, which was date of filing for purposes of statute of limitations. Children's Store v. Cody Enterprises, Inc., 154 Vt. 634, 580 A.2d 1206, 1990 Vt. LEXIS 159 (1990).

Asbestos contamination.

University’s products liability action for property damage due to asbestos contamination accrued not when it discovered asbestos in the building but only when it discovered, or should have discovered, which product contained the asbestos that caused the damage; trial court erred in holding that six-year statute of limitations began to run from the time the product was purchased or installed. University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354, 1989 Vt. LEXIS 141 (1989).

Breach of warranty.

Where action was brought for breach of express and implied warranties of merchantability and fitness for use arising from contract for sale of dairy cattle; there was privity of contract; the contract involved a bonded cattle dealer and a dairy farmer, both “merchants” within the meaning of the Uniform Commercial Code; and the compensatory damages sought were, under the Uniform Commercial Code, potentially recoverable for such a breach of contract, the cause of action fell squarely within the scope of the Uniform Commercial Code and was governed by 9A V.S.A. § 2-725(1) rather than by this section. Aube v. O'Brien, 140 Vt. 1, 433 A.2d 298, 1981 Vt. LEXIS 542 (1981).

In wrongful death action against an automobile manufacturer, on a breach of warranty claim, this section, and not the Uniform Commercial Code’s statute of limitations for sales contracts (9A V.S.A. § 2-725), supplied the limitation period because there was no contractual privity between the parties and because the claim was primarily tortious in nature. Jugle v. Volkswagen of America, Inc., 975 F. Supp. 576, 1997 U.S. Dist. LEXIS 12142 (D. Vt. 1997).

Damage to personal property.

Landowners’ claim for lost profits stemming from engineering firm’s defective subdivision survey could not be construed as a claim for damage to personal property, and claim was therefore governed by six-year statute of limitations applicable to civil actions generally, rather than three-year statute of limitations governing actions for damage to personal property. Bull v. Pinkham Engineering Assocs., 170 Vt. 450, 752 A.2d 26, 2000 Vt. LEXIS 50 (2000).

Nature of landowners’ claim for costs of defending against related suit was not damage to personal property, but loss of money - specifically, attorney’s fees - due to engineering firm’s failure to properly survey landowners’ real property, and thus three-year statute of limitations governing actions for damage to personal property did not apply. Bull v. Pinkham Engineering Assocs., 170 Vt. 450, 752 A.2d 26, 2000 Vt. LEXIS 50 (2000).

Trial court erred in applying three-year statute of limitations to bar indemnification claims against architects for failed attempt to correct problems in condominium project; action was properly considered as one for damage to real property, not personal property, and therefore general six-year statute of limitations applied. Investment Properties, Inc. v. Lyttle, 169 Vt. 487, 739 A.2d 1222, 1999 Vt. LEXIS 234 (1999).

This section governed claims against bank for breach of duty as bailee and agent, since basis of plaintiff’s claims was that bank’s breach of its duty caused the loss of her property. Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

Complaint alleging that use of insecticide in barn killed one cow and caused damage to others stated a cause of action for damage to personal property within the meaning of subdivision (5) of this section, notwithstanding plaintiff’s assertion that the complaint sounded in fraud and should be governed by section 511 of this title because he had purchased the insecticide under the representation that it was safe for spraying animals. Stevers v. E. T. & H. K. Ide Co., 148 Vt. 12, 527 A.2d 658, 1987 Vt. LEXIS 445 (1987).

Discrimination.

When a couple claimed that a town and its officials discriminated against them in zoning and permitting decisions on the basis of their sexual orientation, the six-year statute of limitations, rather than the three-year period, was applicable, because the nature of the alleged harms was mixed; the couple claimed the town’s actions harmed their rights to privacy and quiet enjoyment of property, fostered a hostile environment, and caused financial harm in terms of attorney fees and bankruptcy. Ernst v. Kauffman, 50 F. Supp. 3d 553, 2014 U.S. Dist. LEXIS 141394 (D. Vt. 2014), app. dismissed, 814 F.3d 116, 2016 U.S. App. LEXIS 3024 (2d Cir. 2016).

Former student’s gender discrimination claims, filed January 5, 2009, under Title IX of the Education Amendments of 1972, 20 U.S.C.S. § 1681, were barred by Vermont’s three-year personal injury statute of limitations, 12 V.S.A. § 512(4) , because a college’s alleged discriminatory actions took place during 2003 and 2004. Brown v. Castleton State College, 663 F. Supp. 2d 392, 2009 U.S. Dist. LEXIS 93776 (D. Vt. 2009).

In action for violations of the Vermont Fair Employment Practices Act prohibiting discrimination against qualified individuals with disabilities, plaintiff’s claim for emotional distress resulting from her loss of employment was governed by the three-year limitation period under this section, while the six-year limitation of 12 V.S.A. § 511 governed her claim for economic loss of income and benefits. Egri v. United States Airways, Inc., 174 Vt. 443, 804 A.2d 766, 2002 Vt. LEXIS 139 (2002).

Federal Rehabilitation Act claim brought against university for failure to accommodate plaintiff’s handicap in connection with master’s degree program was governed by three-year statute of limitations applicable to personal injury actions. Morse v. University of Vermont, 973 F.2d 122, 1992 U.S. App. LEXIS 19365 (2d Cir. 1992).

Three year personal injury statute of limitations, rather than six year statute governing civil actions, applied to claims brought under federal and state law alleging discrimination on basis of handicap. Morse v. University of Vermont, 776 F. Supp. 844, 1991 U.S. Dist. LEXIS 16244 (D. Vt. 1991), aff'd in part and rev'd in part, 973 F.2d 122, 1992 U.S. App. LEXIS 19365 (2d Cir. 1992).

Student’s discrimination on basis of handicap claim against university accrued when she learned that university had terminated her from master’s program, and when university notified her she would not be considered for readmission to program; the fact that university entertained appeals did not toll the running of the statute. Morse v. University of Vermont, 776 F. Supp. 844, 1991 U.S. Dist. LEXIS 16244 (D. Vt. 1991), aff'd in part and rev'd in part, 973 F.2d 122, 1992 U.S. App. LEXIS 19365 (2d Cir. 1992).

Notwithstanding that university offered handicapped student a time extension to complete her degree work, university’s refusal to grant student her degree when she had completed the requisite course hours and grade point average was not a separate instance of violation of antidiscrimination laws for statute of limitation purposes, but rather was continuing impact of alleged discriminatory act of advising student she had been terminated from her master’s program. Morse v. University of Vermont, 776 F. Supp. 844, 1991 U.S. Dist. LEXIS 16244 (D. Vt. 1991), aff'd in part and rev'd in part, 973 F.2d 122, 1992 U.S. App. LEXIS 19365 (2d Cir. 1992).

Estoppel.

As against the ordinary statute of limitations, the doctrine of estoppel in pais may be applied to prevent a fraudulent or inequitable resort to the statute. Caledonia Sand & Gravel Co. v. Campbell, 128 Vt. 182, 260 A.2d 221, 1969 Vt. LEXIS 222 (1969).

Use of estoppel in pais to prevent a fraudulent or inequitable resort to a statute of limitations is available not only to equity, but also in an action at law. Caledonia Sand & Gravel Co. v. Campbell, 128 Vt. 182, 260 A.2d 221, 1969 Vt. LEXIS 222 (1969).

In the absence of either a promise or any misrepresentation or concealment of a fraudulent character, there cannot be an equitable estoppel precluding a defendant from setting up the bar of the statute of limitations, and plaintiff must have exercised reasonable care and diligence. Caledonia Sand & Gravel Co. v. Campbell, 128 Vt. 182, 260 A.2d 221, 1969 Vt. LEXIS 222 (1969).

Plaintiff suing for recovery of damages to its auto in a collision with an auto driven by defendant was not entitled to have defendant estopped from setting up applicable statute of limitations where plaintiff failed to prove its claim that it refrained from bringing suit within the period of limitations at the request or inducement of defendant’s insurer. Caledonia Sand & Gravel Co. v. Campbell, 128 Vt. 182, 260 A.2d 221, 1969 Vt. LEXIS 222 (1969).

False imprisonment.

Section 517 of this title, requiring actions for recovery of taxes paid under protest to be brought within one year, did not apply to suit for false imprisonment whereby payment of tax was compelled. Taylor v. Coolidge, 64 Vt. 506, 24 A. 656, 1892 Vt. LEXIS 79 (1892).

Law governing.

14 V.S.A. § 1492(a) prescribes a limitation period that is necessarily determinable where facts are known and indisputable; accordingly, a claim for wrongful death must be commenced within two years of the date of decedent’s death, and unlike 12 V.S.A. § 512(4) , which contains a discovery proviso providing that actions for personal injury shall be commenced within three years after the date of the discovery of the injury, the wrongful death statute contains no such discovery rule. Leo v. Hillman, 164 Vt. 94, 665 A.2d 572, 1995 Vt. LEXIS 81 (1995).

Where plaintiff had elective surgery on September 20, 1971, she allegedly discovered injury from the surgery on October 11, 1975, on July 1, 1976, statutory amendment changed this section’s rule that cause of action for personal injury accrued at time of injury to rule that cause of action accrued upon discovery of the injury, and plaintiff commenced suit on April 3, 1978, 1 V.S.A. § 214 , providing that amendment of a statute shall not affect the operation of the statute prior to the effective date of the amendment or affect any right or obligation acquired prior to the effective date of the amendment governed, and the action was barred under rule that statute of limitations begins to run at time of injury. Capron v. Romeyn, 137 Vt. 553, 409 A.2d 565, 1979 Vt. LEXIS 1076 (1979).

Action by Vermont resident against Vermont resident for injuries sustained while plaintiff and defendant were traveling in Quebec in auto driven by defendant was governed by Vermont, not Quebec, statute of limitations. Jacques v. Jacques, 128 Vt. 140, 259 A.2d 779, 1969 Vt. LEXIS 214 (1969).

Malicious prosecution.

Where plaintiff alleged that defendants violated his rights when initiating counterclaim against him and he sought only costs for defense of his counterclaim, as opposed to alleging any emotional or physical harm, his claim fell within statute of limitations under 12 V.S.A. § 511 and not that for injuries to the person under this section. Bentley v. Northshore Development, Inc., 935 F. Supp. 500, 1996 U.S. Dist. LEXIS 12395 (D. Vt. 1996).

Malpractice.

In attorney malpractice case arising from defendant’s allegedly deficient representation in juvenile proceeding in which state sought determination that plaintiff’s child was in need of care and supervision, plaintiff’s claims for damages resulting from mental anguish, emotional distress, and personal humiliation were time-barred by three-year statute of limitations on injuries to the person. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

At trial for attorney malpractice arising out of defendant’s allegedly deficient representation in juvenile proceeding in which state sought determination that child was in need of care and supervision, where defendant asserted valid defense of three-year statute of limitations as to claims of emotional distress and there were no genuine issues of material fact, trial court properly granted defendant summary judgment as to those claims, but reversal and remand was required as to claims of economic loss, which were governed by six-year limitations period. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

Where plaintiff underwent surgery on June 30, 1975, and allegedly discovered injury from the surgery in March of 1976, the original version of subsection (4) of this section, governing limitations of actions involving injuries to persons or property, was in effect at the time the plaintiff’s claim accrued since 1 V.S.A. § 214(b)(4) , governing effect of repeal or amendment, prohibited retroactive application of the 1976 amendment to this subsection, which provided that the cause of action accrued as of date of discovery of injury, and the trial court properly barred the plaintiff’s claim filed on February 27, 1979, more than three years after the date of injury. Stewart v. Darrow, 141 Vt. 248, 448 A.2d 788, 1982 Vt. LEXIS 517 (1982).

Personal injury.

Consumer’s suit against pharmaceutical companies for a failure to warn was timely because it was governed by the three-year limitations period of 12 V.S.A. § 512(4) , rather than the limitations period of 9A V.S.A § 2-725(1), (2), since the consumer sought recovery for bodily injuries sustained allegedly as a result of the companies’ failure to warn of risks from a particular drug. Kellogg v. Wyeth, 762 F. Supp. 2d 694, 2010 U.S. Dist. LEXIS 139841 (D. Vt. 2010).

Regardless of the characterization of a cause of action, claims for damages resulting from mental anguish, emotional distress, and personal humiliation are considered “injuries to the person” for purposes of the statute of limitations. Gettis v. Green Mountain Economic Development Corp., 2005 VT 117, 179 Vt. 117, 892 A.2d 162, 2005 Vt. LEXIS 300 (2005).

In personal injury claims governed by the applicable statute of limitations, the cause of action accrues at the time a plaintiff discovers or reasonably should have discovered the basic elements of a cause of action, including the existence of an injury and its causes. Gettis v. Green Mountain Economic Development Corp., 2005 VT 117, 179 Vt. 117, 892 A.2d 162, 2005 Vt. LEXIS 300 (2005).

Six-year statute of limitations applied to malpractice claim brought by mother against psychologist with whom she contracted in connection with custody dispute; although mother’s claim sought personal injury damages for emotional distress, to which a three-year limitation period would normally apply, some of the damages she sought were for economic losses that did not constitute personal injuries, and thus the six-year limitation period applied. Politi v. Tyler, 170 Vt. 428, 751 A.2d 788, 2000 Vt. LEXIS 40 (2000).

Mother who, along with ex-husband, contracted with psychologist in connection with custody dispute should have reasonably discovered injury from psychologist’s role in dispute on or before date of psychologist’s testimony in favor of ex-husband having custody; mother’s claim against psychologist for intentional infliction of emotional distress therefore accrued on date of psychologist’s testimony, and her claim was accordingly barred by three-year statute of limitations. Politi v. Tyler, 170 Vt. 428, 751 A.2d 788, 2000 Vt. LEXIS 40 (2000).

A claim for damages resulting from emotional distress is “injury to the person” and must be commenced within three years after the cause of action accrues. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

The rule of Murray v. Allen, 103 Vt. 373, 154 A. 678 (1931), that is, in applying the provisions of a statute of limitations in a personal injury negligence case, the right of action accrues when the negligent act upon which the action is based took place, is overruled. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985).

Date of accrual in plaintiff’s drug product liability action was the date plaintiff’s cancer, allegedly caused by the drug, was first discovered. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985).

Where auto accident occurred on January 3, 1976, plaintiff filed action on January 4, 1979, this section provided action be commenced within three years after cause of action accrued, rule provided for commencement by filing or by service, another rule provided the day of the event sued upon is not counted and the last day of the three year period is counted, and January 4, 1979, was not a weekend or holiday, denial of defendant’s motion for judgment on the pleadings would be reversed as statute of limitations had expired. Powers v. Chouinard, 138 Vt. 3, 409 A.2d 598, 1979 Vt. LEXIS 1093 (1979).

Where the recovery sought is for injury to the person, sustained through acts or defaults of the manufacturer or supplier in selling a product in a defective condition unreasonably dangerous to the user or consumer, the statute of limitations relating to personal injury actions applies. Kinney v. Goodyear Tire & Rubber Co., 134 Vt. 571, 367 A.2d 677, 1976 Vt. LEXIS 731 (1976).

Settlement negotiations.

This section applied in action arising from automobile accident, where liability insurer of defendant claiming action was barred by statute of limitations made no misrepresentations, concealments, request that suit be delayed or statement that it would waive statute of limitations during settlement negotiations, and consistently demanded releases, which plaintiff never gave, as a part of the proposed settlement. Perry v. Johnson, 131 Vt. 350, 306 A.2d 680, 1973 Vt. LEXIS 314 (1973).

Slander.

Where plaintiff, in a written submission to her employer’s grievance panel, stated that “her reputation was ruined in 1992 and 1993 by the false statements of... my unit supervisor,” she was admittedly aware of the alleged defamatory statements made more than three years before she filed an action, and therefore her claim with respect to this alleged defamation was time-barred. Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74, 807 A.2d 390, 2002 Vt. LEXIS 148 (2002).

Statute could not avail as a defense to action for slander, as it did not appear to have been pleaded. Bates v. Harrington, 51 Vt. 1, 1878 Vt. LEXIS 110 (1878).

Tolling.

Long arm statute, as amended in 1968 to permit service of process outside the state for personal judgment actions, did not supersede the 1961 amendment to the statute allowing service via the Commissioner of Motor Vehicles. Accordingly, the three-year statute of limitations was tolled when defendant resided out of state for the entire period and had no property in Vermont. Andrews v. Stam, 2007 VT 79, 182 Vt. 482, 939 A.2d 455, 2007 Vt. LEXIS 235 (2007).

Sixty-day day period contained in V.R.C.P. 3, governing time for service on defendant, controlled tolling of statute of limitations in diversity personal injury action. Cuocci v. Goetting, 812 F. Supp. 451, 1993 U.S. Dist. LEXIS 1530 (D. Vt. 1993).

Tortious interference claim.

Plaintiff’s complaint that, as a result of tortious interference with contract, she “suffered severe physical and emotional health problems and was forced to resign her position, under duress” was properly characterized as alleging personal injuries, and the fact that some economic losses were also alleged did not alter the underlying nature of her claim so that the three-year statute of limitations governed, and the claim was time barred. Rennie v. State, 171 Vt. 584, 762 A.2d 1272, 2000 Vt. LEXIS 311 (2000) (mem.).

Cited.

Cited in Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 507 A.2d 952, 1985 Vt. LEXIS 417 (1985); United Paperworkers Local 340 v. Specialty Paperboard, Inc., 999 F.2d 51, 1993 U.S. App. LEXIS 18608 (2d Cir. 1993); Barquin v. Roman Catholic Diocese of Burlington, Vt., Inc., 839 F. Supp. 275, 1993 U.S. Dist. LEXIS 17777 (D. Vt. 1993); Kauffman v. State Farm Mutual Automobile Ins. Co., 857 F. Supp. 23, 1994 U.S. Dist. LEXIS 9544 (D. Vt. 1994); Goodstein v. Bombardier Capital, Inc., 167 F.R.D. 662, 1996 U.S. Dist. LEXIS 9455 (D. Vt. 1996); Putter v. Montpelier Public School System, 166 Vt. 463, 697 A.2d 354, 1997 Vt. LEXIS 105 (1997); Rodrique v. VALCO Enterprises, Inc., 169 Vt. 539, 726 A.2d 61, 1999 Vt. LEXIS 16 (1999); Earle v. State, 170 Vt. 183, 743 A.2d 1101, 1999 Vt. LEXIS 404 (1999); Macia v. Microsoft Corp., 152 F. Supp. 2d 535, 2001 U.S. Dist. LEXIS 10382 (D. Vt. 2001); Pike v. Chuck's Willoughby Pub, Inc., 2006 VT 54, 180 Vt. 25, 904 A.2d 1133, 2006 Vt. LEXIS 135 (2006) (mem.).

Law Reviews —

For note relating to statutes of limitations for architects, see 9 Vt. L. Rev. 101 (1984).

§ 513. Skiing, injuries sustained while participating in sport of.

An action to recover for injuries sustained while participating in the sport of skiing shall be commenced within one year after the cause of action accrues, and not after.

History

Source.

1953, No. 205 , § 1.

CROSS REFERENCES

Acceptance of inherent risks in sports, see § 1037 of this title.

Ski areas not responsible for injury or damages resulting from skiing off designated trails, see § 1038 of this title.

ANNOTATIONS

Equitable estoppel.

Doctrine of equitable estoppel did not preclude defendant ski resort from invoking applicable one-year statute of limitations, since injured skier’s attorney acted unreasonably in allowing limitations period to expire without confirming that defendant was willing to waive or extend period while parties continued settlement negotiations; defendant’s insurance adjuster did not have superior knowledge of applicable limitations period, and it was the responsibility of skier’s attorney, not defendant’s adjuster, to be aware of period and ensure that his client’s claims did not expire. Beecher v. Stratton Corp., 170 Vt. 137, 743 A.2d 1093, 1999 Vt. LEXIS 401 (1999).

Equitable tolling.

Statute of limitations governing injured skier’s claims against ski resort was not equitably tolled, as it was not reasonable for skier’s attorney to forego filing suit in hope of a settlement that was never promised by defendant’s insurance adjuster, nor did defendant actively mislead plaintiff or prevent plaintiff in some extraordinary way from filing a timely lawsuit. Beecher v. Stratton Corp., 170 Vt. 137, 743 A.2d 1093, 1999 Vt. LEXIS 401 (1999).

Servicemen.

This section’s limitation period was tolled by Soldiers’ and Sailors’ Civil Relief Act provision suspending the running of such statutes of limitation as this section. Wanner v. Glen Ellen Corporation, 373 F. Supp. 983, 1974 U.S. Dist. LEXIS 9365 (D. Vt. 1974).

Soldiers’ and Sailors’ Civil Relief Act provision tolling state statutes of limitations as to persons in the military service does not apply to the wife of a person in military service where the wife brings suit in her own name to recover derivatively for damages she has incurred as a result of injuries suffered by her husband. Wanner v. Glen Ellen Corporation, 373 F. Supp. 983, 1974 U.S. Dist. LEXIS 9365 (D. Vt. 1974).

Ski tow.

Skier being transported on a mechanical ski tow who is injured through operation of tow is not so participating in sport of skiing as to be subject to this section. Marshall v. Brattleboro, 121 Vt. 417, 160 A.2d 762, 1960 Vt. LEXIS 139 (1960).

Suppliers of equipment.

This section applies to suppliers of allegedly defective ski equipment which causes injury as well as to operators of ski areas. Weiner v. Sherburne Corp., 348 F. Supp. 797, 1972 U.S. Dist. LEXIS 12086 (D. Vt. 1972).

Cited.

Cited in Weiner v. Sherburne Corp., 57 F.R.D. 636, 1972 U.S. Dist. LEXIS 10807 (D. Vt. 1972); Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985); University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354, 1989 Vt. LEXIS 141 (1989).

§ 514. Insufficiency of bridge.

An action against a town for the recovery of damages caused by the insufficiency or want of repair of a bridge or culvert shall be commenced within two years after the cause of action accrues, and not after.

History

Source.

V.S. 1947, § 1691. P.L. § 1650. 1933, No. 157 , § 1490. G.L. § 1851. 1908, No. 98 , §§ 1, 2.

§ 515. Neglect of official duty of town clerk.

An action against a town, or town clerk, to recover damages for neglect of duty of such clerk in relation to a deed, execution, or other instrument delivered to him or her or left at his or her office for record, shall be brought only within six years after a final decision based upon such neglect and adverse to the right, title, or claim of the party under such deed, execution, or instrument, and not after.

History

Source.

V.S. 1947, § 1692. P.L. § 1651. G.L. § 1852. P.S. § 1551. V.S. § 1200. R.L. § 960. G.S. 63, § 6. 1852, No. 14 .

§ 516. Misfeasance of sheriff or deputy.

Actions against sheriffs for the misconduct or negligence of their deputies shall be commenced within four years after the cause of action accrues, and not after.

History

Source.

V.S. 1947, § 1697. P.L. § 1656. G.L. § 1857. P.S. § 1556. V.S. § 1204. R.L. § 964. G.S. 63, § 9. R.S. 58, § 8.

ANNOTATIONS

Computation of statutory period.

In absence of fraud, breach of duty by public officer, which directly affects rights of another, at once gives latter cause of action, and therefore starts running of statute, even though whole extent of injury may not be discovered until later. Johnson v. Beattie, 88 Vt. 512, 93 A. 250, 1915 Vt. LEXIS 264 (1915).

Failure to return writ of attachment.

Where in an action against a sheriff for default of his deputy it appeared that owing to failure of deputy to return plaintiff’s writ of attachment, another creditor obtained priority over plaintiff, his cause of action arose at time of deputy’s failure seasonably to return the writ, and four-year limitation prescribed by this section then began to run, notwithstanding plaintiff’s damages could not then be determined because of pendency of prior attachment. Johnson v. Beattie, 88 Vt. 512, 93 A. 250, 1915 Vt. LEXIS 264 (1915).

Wrongful seizure.

Where there is a seizure of person’s property on writ against another, statute begins to run from date of seizure. Lyman v. Holmes, 88 Vt. 431, 92 A. 829, 1915 Vt. LEXIS 250 (1915).

§ 517. Taxes paid under protest.

An action to recover money paid under protest for taxes shall be commenced within one year after the cause of action accrues, and not after.

History

Source.

V.S. 1947, § 1698. P.L. § 1657. G.L. § 1858. P.S. § 1559. V.S. § 1207. 1884, No. 8 , § 1.

CROSS REFERENCES

Taxpayers’ suits, defenses, time limitation, see 32 V.S.A. §§ 5293 , 5294.

ANNOTATIONS

Construction.

The term “action” as used in this section applies equally to Department of Motor Vehicles administrative proceedings and court actions. Marsicovetere v. Department of Motor Vehicles, 172 Vt. 562, 772 A.2d 540, 2001 Vt. LEXIS 142 (2001) (mem.).

False imprisonment.

This section did not apply to suit for false imprisonment whereby payment of tax was compelled; such suit was governed by § 512 of this title. Taylor v. Coolidge, 64 Vt. 506, 24 A. 656, 1892 Vt. LEXIS 79 (1892).

Fees.

This section did not apply to what legislature called, and considered to be, a fee, when it passed statute providing for a graduated probate distribution fee imposed upon final probate court decree, and that court later found the fee to be a tax in violation of proportional contribution clause of State Constitution did not make it a tax for purposes of this section. In re Estate of Webb, 136 Vt. 582, 397 A.2d 81, 1978 Vt. LEXIS 675 (1978).

Motor vehicle purchase and use tax.

The one year statute of limitation under this section applies to the purchase and use sales tax refund statute, 32 V.S.A. § 8914 . Marsicovetere v. Department of Motor Vehicles, 172 Vt. 562, 772 A.2d 540, 2001 Vt. LEXIS 142 (2001) (mem.).

Cited.

Cited in West v. Village of Morrisville, 728 F.2d 130, 1984 U.S. App. LEXIS 25445 (2d Cir. 1984); Williams v. State, 156 Vt. 42, 589 A.2d 840, 1990 Vt. LEXIS 271 (1990).

§ 518. Ionizing radiation injury; latent.

  1. An action to recover for ionizing radiation injury or injury from other noxious agents medically recognized as having a prolonged latent development shall be commenced within three years after the person suffering the injury has knowledge or ought reasonably to have knowledge of having suffered the injury and of the cause thereof, but in no event more than 20 years from the date of the last occurrence to which the injury is attributed.
  2. An action or proceeding to recover for latent ionizing radiation injury, or injury from other noxious agents medically recognized as having a prolonged latent development shall not be barred by recovery in any earlier action or proceeding, unless the plaintiff in the earlier action or proceeding was actually awarded damages for the latent injury, or knew or reasonably could be expected to know that such latent injury would occur, and its nature and extent with sufficient particularity to establish entitlement to a specific amount of damages on account thereof.

HISTORY: Added 1967, No. 32 , § 1, eff. March 16, 1967.

CROSS REFERENCES

Ionizing radiation, see 18 V.S.A. ch. 32.

ANNOTATIONS

Accrual of action.

Date of accrual in plaintiff’s drug product liability action was the date plaintiff’s cancer, allegedly caused by the drug, was first discovered. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985).

Actions barred.

Case brought for damages for alleged wrongful act occurring more than three years before the effective date of this section, which did not allege that the insulin allegedly injected by hospital personnel instead of preoperative medication was a noxious agent under subsection (a), was not within subsection (a). Mauran v. Mary Fletcher Hospital, 318 F. Supp. 297, 1970 U.S. Dist. LEXIS 9833 (D. Vt. 1970).

Application.

Cancer is not, in and of itself, a “noxious agent” under the so-called “latent injury” exception to the medical malpractice statute of limitations because an “agent” was something that acted upon the body, causing a disease or illness such as cancer. Thus, the exception did not apply, and plaintiff’s malpractice action was time-barred. Campbell v. Stafford, 2011 VT 11, 189 Vt. 567, 15 A.3d 126, 2011 Vt. LEXIS 9 (2011) (mem.).

Where allegation in complaint, that drug manufactured by defendants produced cancer after a prolonged latent development period, brought drug product liability action within scope of injuries addressed by subsection (a) of this section, and this section was in effect on the date plaintiff discovered her injury, this section would apply to plaintiff’s action. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985).

Statute of repose.

Where plaintiff alleged that drug manufactured by defendants and ingested by her mother while plaintiff was a fetus, together with puberty and menarche, was a proximate cause of her vaginal cancer, statute of repose in subsection (a) of this section ran from the date of plaintiff’s menarche, the last occurrence to which her injury could be attributed. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985).

Cited.

Cited in University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354, 1989 Vt. LEXIS 141 (1989); Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989).

§ 519. Emergency medical care.

  1. A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or herself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.
  2. A person who provides reasonable assistance in compliance with subsection (a) of this section shall not be liable in civil damages unless his or her acts constitute gross negligence or unless he or she will receive or expects to receive remuneration.  Nothing contained in this subsection shall alter existing law with respect to tort liability of a practitioner of the healing arts for acts committed in the ordinary course of his or her practice.
  3. A person who willfully violates subsection (a) of this section shall be fined not more than $100.00.

HISTORY: 1967, No. 309 (Adj. Sess.), §§ 2-4, eff. March 22, 1968.

History

Revision note—

Subsecs. (a), (b) and (c) of this section were originally sections 2, 3 and 4 of 1967, No. 309 (Adj. Sess.) and were combined to conform to V.S.A. style.

1967, No. 309 (Adj. Sess.), § 1, provided: “This act [from whence this section is derived] shall be known and may be cited as the ‘Duty to Aid the Endangered Act’.”

CROSS REFERENCES

Emergency medical services, see 18 V.S.A. ch. 17.

ANNOTATIONS

Application.

This section does not create a duty to intervene in a fight. State v. Joyce, 139 Vt. 638, 433 A.2d 271, 1981 Vt. LEXIS 533 (1981).

Construction.

Even if Department of Social and Rehabilitation Services (SRS) did not undertake to help plaintiffs, this section provides a private analog for an action against SRS based on its failure to assist child abuse victims as required by law. Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1995 Vt. LEXIS 107 (1995).

Negligence.

Persons providing reasonable assistance under this section are liable for damages in a civil suit if their acts are grossly negligent or they expect to receive remuneration for their services. Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1995 Vt. LEXIS 107 (1995).

Cited.

Cited in Smith v. Day, 148 Vt. 595, 538 A.2d 157, 1987 Vt. LEXIS 578 (1987); Ryder v. Chestnut, 2005 U.S. Dist. LEXIS 28518 (D. Vt. Nov. 4, 2005).

Law Reviews —

Analysis of Duty to Aid Endangered Act, see 7 Vt. L. Rev. 143 (1982).

§ 520. Payment of wages.

Actions brought on a violation of 21 V.S.A. § 342 shall be brought within two years after the cause of action accrues, and not after.

HISTORY: Added 1977, No. 244 (Adj. Sess.), § 1, eff. May 1, 1978.

§ 521. Medical malpractice.

Notwithstanding section 512 of this title, and except as provided in sections 518 and 551 of this title, actions to recover damages for injuries to the person arising out of any medical or surgical treatment or operation shall be brought within three years of the date of the incident or two years from the date the injury is or reasonably should have been discovered, whichever occurs later, but not later than seven years from the date of the incident. No statute of limitations shall limit the right to recover damages for injuries to the person arising out of any medical or surgical treatment or operation where fraudulent concealment has prevented the patient’s discovery of the negligence. Where the action is based upon the discovery of a foreign object in the patient’s body, which is not discovered within the period of limitation under this section, the action may be commenced within two years of the date of the discovery of the foreign object.

HISTORY: Added 1977, No. 248 (Adj. Sess.).

History

Revision note—

Section was originally enacted as “§ 520” but as another section 520 was also enacted ( 1977, No. 248 (Adj. Sess.), § 1), this section was renumbered as section 521.

ANNOTATIONS

Action time-barred.

Cancer is not, in and of itself, a “noxious agent” under the so-called “latent injury” exception to the medical malpractice statute of limitations because an “agent” was something that acted upon the body, causing a disease or illness such as cancer. Thus, the exception did not apply, and plaintiff’s malpractice action was time-barred. Campbell v. Stafford, 2011 VT 11, 189 Vt. 567, 15 A.3d 126, 2011 Vt. LEXIS 9 (2011) (mem.).

Common law.

This section codifies the common law discovery rule that a plaintiff’s recovery is not barred by the limitations statute if the plaintiff could not reasonably have discovered the injury within the time period. Ware v. Gifford Memorial Hospital, 664 F. Supp. 169, 1987 U.S. Dist. LEXIS 6660 (D. Vt. 1987).

Construction.

Enactment of seven-year repose period for medical malpractice actions did not bar action which vested prior to the enactment of the statute. Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989), sub. op. in part, 156 Vt. 165, 591 A.2d 41, 1991 Vt. LEXIS 50 (1991).

In medical malpractice actions, the question of when the injury was or reasonably should have been discovered for purposes of statute of limitations is one of fact to be determined by the jury. Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989), sub. op. in part, 156 Vt. 165, 591 A.2d 41, 1991 Vt. LEXIS 50 (1991).

Trial court applied incorrect legal standard and thereby invaded province of the jury where it determined in medical malpractice action that discovery of the injury occurred when plaintiff discovered he suffered from a disorder, not when he also discovered the cause of the disorder. Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989), sub. op. in part, 156 Vt. 165, 591 A.2d 41, 1991 Vt. LEXIS 50 (1991).

Where plaintiff’s medical malpractice action arose prior to enactment of repose provision of statute of limitations, application of the provision deprived plaintiff of due process because it foreclosed all manner of redressing the violation of his vested rights. Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989), sub. op. in part, 156 Vt. 165, 591 A.2d 41, 1991 Vt. LEXIS 50 (1991).

Statute of limitations for medical malpractice begins to run only when plaintiff discovers or reasonably should discover the injury, its cause and the existence of a cause of action. Ware v. Gifford Memorial Hospital, 664 F. Supp. 169, 1987 U.S. Dist. LEXIS 6660 (D. Vt. 1987).

Pleading.

In a medical malpractice action, the allegation in plaintiff’s complaint of failure to obtain informed consent could not be transformed to allege fraudulent concealment so as to toll the statute of limitations. Fercenia v. Guiduli, 2003 VT 50, 175 Vt. 541, 830 A.2d 55, 2003 Vt. LEXIS 95 (2003) (mem.).

Trial court did not abuse its discretion when it allowed physicians to amend their answer on the sixth day of trial so as to affirmatively plead the statute of limitation; record indicated that trial court exercised its discretion carefully and that it thoughtfully considered the policy objectives of the rule, balancing the right of the defendants to present their defense based upon the statute of limitations on its merits, rather than being precluded from doing so because of a procedural technicality, against the right of the plaintiff to be provided with adequate notice of the defense. Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989), sub. op. in part, 156 Vt. 165, 591 A.2d 41, 1991 Vt. LEXIS 50 (1991).

Cited.

Cited in Stewart v. Darrow, 141 Vt. 248, 448 A.2d 788, 1982 Vt. LEXIS 517 (1982); Perkins v. Windsor Hospital Corp., 142 Vt. 305, 455 A.2d 810, 1982 Vt. LEXIS 645 (1982); University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354, 1989 Vt. LEXIS 141 (1989); Barquin v. Roman Catholic Diocese of Burlington, Vt., Inc., 839 F. Supp. 275, 1993 U.S. Dist. LEXIS 17777 (D. Vt. 1993).

§ 522. Actions based on childhood sexual or physical abuse.

  1. A civil action brought by any person for recovery of damages for injury suffered as a result of childhood sexual or physical abuse may be commenced at any time after the act alleged to have caused the injury or condition. The victim need not establish which act in a series of continuing physical abuse or sexual abuse or exploitation incidents caused the injury.
  2. If a complaint is filed alleging an act of childhood sexual or physical abuse, the complaint shall immediately be sealed by the clerk of the court. The complaint shall remain sealed until the answer is served or, if the defendant files a motion to dismiss under Rule 12(b) of the Vermont Rules of Civil Procedure, until the court rules on that motion. If the complaint is dismissed, the complaint and any related papers or pleadings shall remain sealed. Any hearing held in connection with the motion to dismiss shall be in camera.
  3. As used in this section:
    1. “Childhood sexual abuse” means any act committed by the defendant against a complainant who was under 18 years of age at the time of the act and which act would have constituted a violation of a statute prohibiting lewd and lascivious conduct, lewd or lascivious conduct with a child, felony sexual exploitation of a minor in violation of 13 V.S.A. § 3258(c) , sexual assault, or aggravated sexual assault in effect at the time the act was committed.
    2. “Childhood physical abuse” means any act other than an attempt committed by the defendant against a complainant who was under 18 years of age at the time of the act and which act would have constituted a violation of a statute prohibiting aggravated assault in effect at the time the act was committed.
  4. Notwithstanding 1 V.S.A. § 214 , this section shall apply retroactively to childhood sexual abuse that occurred prior to July 1, 2019, irrespective of any statute of limitations in effect at the time the abuse occurred. In an action based on childhood sexual abuse that would have been barred by any statute of limitations in effect on June 30, 2019, damages may be awarded against an entity that employed, supervised, or had responsibility for the person allegedly committing the sexual abuse only if there is a finding of gross negligence on the part of the entity.
  5. Notwithstanding 1 V.S.A. § 214 , this section shall apply retroactively to childhood physical abuse that occurred prior to July 1, 2021, irrespective of any statute of limitations in effect at the time the abuse occurred. In an action based on childhood physical abuse that would have been barred by any statute of limitations in effect on June 30, 2021, damages may be awarded against an entity that employed, supervised, or had responsibility for the person allegedly committing the physical abuse only if there is a finding of gross negligence on the part of the entity.

HISTORY: Added 1989, No. 292 (Adj. Sess.), § 2; amended 2019, No. 37 , § 1; 2021, No. 26 , § 1.

History

Amendments

—2021. Section heading: Inserted “or physical”.

Subsec. (a): Inserted “or physical” in the first sentence and inserted “physical abuse or” in the second sentence.

Subsec. (b): Inserted “or physical” in the first sentence.

Subsec. (c): Amended generally.

Subsec. (e): Added.

—2019. Subsec. (a): Substituted “may” for “shall”, substituted “at any time after” for “within six years of”, and deleted “or six years of the time the victim discovered that the injury or condition was caused by that act, whichever period expires later” at the end of the first sentence.

Subsec. (b): Deleted “which occurred more than six years prior to the date the action is commenced” following “childhood sexual abuse” in the first sentence.

Subsec. (c): Inserted “felony sexual exploitation of a minor in violation of 13 V.S.A. § 3258(c) ”.

Subsec. (d): Added.

1989, No. 292 (Adj. Sess.), § 4(b) provided that section 2 of the act, which added this section, shall apply to all causes of action commenced on or after July 1, 1990, as long as either the act of sexual abuse or the discovery that the injury or condition was caused by the act of sexual abuse occurred on or after July 1, 1984, to which extent section 2 applies retroactively.

ANNOTATIONS

Application.

Plaintiff’s claim against state agency, for failing to prevent foster child from sexually abusing him, fell within category of cases intended to be covered by statute of limitations governing actions based on childhood sexual abuse. Earle v. State, 170 Vt. 183, 743 A.2d 1101, 1999 Vt. LEXIS 404 (1999).

This section applies to civil actions brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse. Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1995 Vt. LEXIS 107 (1995).

Construction.

Nothing in the statutory language of this section suggests that the Legislature intended to exclude nonperpetrators from the reach of the statute; the use of the word “act” in different contexts in different sentences of the statute does not compel the conclusion that the act complained of must always be the act of sexual abuse itself. Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1995 Vt. LEXIS 107 (1995).

Plaintiff’s allegations of childhood sexual abuse occurring forty years in the past were not subject to dismissal on statute of limitations grounds; Legislature had related limitations provision available as a model when it enacted this section, and it could be inferred that Legislature intentionally omitted the “or reasonably should have been discovered” language from this section, leaving only the notion of actual discovery. Barquin v. Roman Catholic Diocese of Burlington, Vt., Inc., 839 F. Supp. 275, 1993 U.S. Dist. LEXIS 17777 (D. Vt. 1993).

Notice.

Court declines to follow decisions holding that a plaintiff alleging sexual abuse is, as a matter of law, on inquiry notice of the potential liability of a defendant based on the knowledge that the perpetrator was a priest in the employ of a church. Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, 186 Vt. 396, 987 A.2d 960, 2009 Vt. LEXIS 118 (2009).

Particular cases.

When a former patient alleged that her surgeon had sexually assaulted her under the guise of treating her when she was a teenager, it was error to hold that her suit was time-barred, as a reasonable jury could conclude that even though she suspected that the surgeon had examined her to satisfy his sexual desires rather than treat her hip/groin injury, she did not and could not have reasonably discovered the alleged legal injury until she learned through media reports that the surgeon had been charged with assaulting other women in a similar manner. A reasonable jury could come to such a conclusion by considering the position of trust and authority established by the surgeon as the patient’s longstanding doctor, the fact that the patient was being treated for an injury near an intimate part of her body, and the lack of a response from the patient’s family affirming her vacillating concerns about the surgeon’s methods of examination and treatment. Clarke v. Abate, 2013 VT 52, 194 Vt. 294, 80 A.3d 578, 2013 Vt. LEXIS 69 (2013).

Surgeon could not prevail on the grounds that a former patient failed to challenge his statement of undisputed facts insofar as the court had ruled that those statements were insufficient to support the trial court’s summary judgment ruling in favor of the surgeon based on the patient’s alleged acknowledgement of defendant’s wrongful conduct. The patient never conceded that she knew or should have known of the wrongfulness of the surgeon’s conduct, which was the ultimate factual question for the jury to resolve in determining whether the statute of limitations had run. Clarke v. Abate, 2013 VT 52, 194 Vt. 294, 80 A.3d 578, 2013 Vt. LEXIS 69 (2013).

By acknowledging, in response to the court’s questioning, that a patient had concerns early on about the appropriateness of her surgeon’s examinations, the patient’s counsel did not concede that the patient had knowledge sufficient to trigger the running of the applicable statute of limitations. Clarke v. Abate, 2013 VT 52, 194 Vt. 294, 80 A.3d 578, 2013 Vt. LEXIS 69 (2013).

Defendant was not entitled to summary judgment or judgment as a matter of law under the statute prescribing the limitations period for actions based on childhood sexual abuse. Plaintiff linked his long-term mental health issues to the conduct of defendant’s priest in 2002 or 2004, well after the 1984 cut-off date in the retroactivity provision; while defendant could point to other evidence that might support its view that plaintiff was aware or should have been aware much earlier, at best there was a genuine issue of material fact that precluded grant of summary judgment, and there was a legally sufficient basis for the jury to find for plaintiff on the issue. Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, 186 Vt. 396, 987 A.2d 960, 2009 Vt. LEXIS 118 (2009).

Trial court erred in granting plaintiff judgment as a matter of law under the statute prescribing the limitations period for actions based on childhood sexual abuse. A priest’s position in defendant’s diocese, and the evidence that plaintiff knew that the priest had abused others, were sufficient for the jury to find that plaintiff was on inquiry notice from those facts, and to conclude that the time for filing an action against defendant had commenced. Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, 186 Vt. 396, 987 A.2d 960, 2009 Vt. LEXIS 118 (2009).

Retroactive effect.

For purposes of retroactivity provision of statute of limitations governing actions based on childhood sexual abuse, a plaintiff’s simple awareness of injury or condition resulting from abuse marks date for determining whether plaintiff’s claim falls within period of retroactive application. Earle v. State, 170 Vt. 183, 743 A.2d 1101, 1999 Vt. LEXIS 404 (1999).

In action against state agency for negligence in failing to protect plaintiff from sexual abuse, trial court erred in equating date of accrual under applicable statute of limitations with date of discovery that determined whether plaintiff’s claim fell within statute’s retroactivity period. Earle v. State, 170 Vt. 183, 743 A.2d 1101, 1999 Vt. LEXIS 404 (1999).

Trial court erred in failing to apply retroactivity provision of statute of limitations governing cases of childhood sexual abuse, since it was possible, under facts alleged in case, that it was sometime after July 1, 1984 when plaintiff first discovered that his “injury or condition” was caused by act of sexual abuse, and for court to decide that delayed psychological trauma deriving from childhood sexual assault was not a distinct “injury or condition” would render text of retroactivity provision meaningless. Earle v. State, 170 Vt. 183, 743 A.2d 1101, 1999 Vt. LEXIS 404 (1999).

§ 523. Trade secrets.

An action for misappropriation of trade secrets under 9 V.S.A. chapter 143 shall be commenced within six years after the cause of action accrues, and not after. The cause of action shall be deemed to accrue as of the date the misappropriation was discovered or reasonably should have been discovered.

HISTORY: Added 1995, No. 90 (Adj. Sess.), § 2; amended 2013, No. 199 (Adj. Sess.), § 16.

History

Amendments

—2013 (Adj. Sess.). Substituted “9 V.S.A. chapter 143” for “chapter 143 of Title 9” following “trade secrets under” and “six years” for “three years” following “shall be commenced within”.

§ 524. Actions based on residential building energy standards.

  1. Except in the case of fraud, an action under 30 V.S.A. § 51(g) shall be commenced within six years after the cause of action accrues, and not after.
  2. The cause of action shall be deemed to accrue as of the date of the recording of a copy of the certificate in the town land records, the date of filing with the Department of Public Service, or the date of occupancy, whichever comes first.
  3. This section shall apply only to actions under 30 V.S.A. § 51(g) , and shall not be construed to affect other rights and remedies provided by statute or common law.

HISTORY: Added 1997, No. 20 , § 3.

Subchapter 3. Computation of Time; Tolling of Statute

CROSS REFERENCES

Computation of time generally, see Rule 6(a), (b), Vermont Rules of Civil Procedure.

§ 551. Minority, incapacity, or imprisonment.

  1. When a person entitled to bring an action specified in this chapter is a minor, lacks capacity to protect his or her interests due to a mental condition or psychiatric disability, or is imprisoned at the time the cause of action accrues, such person may bring such action within the times in this chapter respectively limited, after the disability is removed.
  2. If a person entitled to bring an action specified in this chapter becomes unable to protect his or her interests due to a mental condition or psychiatric disability after the cause of action accrues but before the statute has run, the time during which the person is unable to protect his or her interests due to a mental condition or psychiatric disability shall not be taken as a part of the time limited for the commencement of the action.

HISTORY: Amended 1979, No. 112 (Adj. Sess.), § 1, eff. date, see note set out below; 2013, No. 96 (Adj. Sess.), § 45.

History

Source.

V.S. 1947, § 1700. P.L. § 1659. G.L. § 1860. P.S. § 1561. V.S. § 1209. R.L. § 968. G.S. 63, § 19. R.S. 58, § 18. 1832, No. 3 , § 2. R. 1797, p. 598, § 10. R. 1787, p. 92.

Amendments

—2013 (Adj. Sess.). Section catchline: Substituted “incapacity” for “insanity”.

Subsec. (a): Substituted “lacks capacity to protect his or her interests due to a mental condition or psychiatric disability,” for “insane” and inserted “is” preceding “imprisoned”.

Subsec. (b): Substituted “unable to protect his or her interests due to a mental condition or psychiatric disability” for “insane” twice.

—1979 (Adj. Sess.). Subsec. (a): Designated existing section as subsec. (a).

Subsec. (b): Added.

Effective date; application. 1979, No. 112 (Adj. Sess.), § 2, provided: “This act [which amended this section] shall take effect on passage [April 10, 1980] and shall not affect causes of action which accrued prior to passage.”

CROSS REFERENCES

Time, computation of, see 1 V.S.A. § 138 .

ANNOTATIONS

Burden of proof.

Plaintiff had burden of proof to show he came within tolling provision of this section. Goode v. State, 150 Vt. 651, 553 A.2d 142, 1988 Vt. LEXIS 174 (1988) (mem.).

Disability after cause of action accrues.

If disability does not exist at time cause of action accrues, subsequent intervening of disability does not prevent running of statute. Lincoln v. Norton, 36 Vt. 679 (1864); Tracy v. Atherton, 36 Vt. 503 (1864), same case 35 Vt. 52, 171 A.L.R. 1281, 1286.

In an action of trover where statute was pleaded, replication alleging insanity of plaintiff and that plaintiff was under guardianship after the cause of action accrued was insufficient. Lincoln v. Norton, 36 Vt. 679, 1864 Vt. LEXIS 29 (1864).

To save operation of statute of limitations in regard to real estate, disability must exist in heir at the time right or title first descends to him, and hence successive disabilities, though existing in same person, cannot exempt his right from operation of statute. McFarland v. Stone, 17 Vt. 165 (1845), same case 16 Vt. 145.

Imprisonment.

Limitations period was not tolled by appellant’s 2011 incarceration, as it occurred after the cause of action had accrued, or under the fraudulent concealment statute, as the alleged fraud appellant asserted would have occurred years after the cause of action accrued and thus did not prevent him from discovering it. Jadallah v. Town of Fairfax, 2018 VT 34, 207 Vt. 413, 186 A.3d 1111, 2018 Vt. LEXIS 32 (2018).

Insanity.

Statute of limitations was not tolled by plaintiff’s alleged inability to manage her affairs. Whatever psychological distress she might have suffered, the trial court found that the record indisputably showed an intense, prolonged involvement by plaintiff in pursuing her rights which was fundamentally inconsistent with the claim that her psychological condition impaired her ability to protect her legal interests. Eaton v. Prior, 2012 VT 54, 192 Vt. 249, 58 A.3d 200, 2012 Vt. LEXIS 56 (2012).

Trial court applied erroneous legal standard in determining that plaintiff was not “insane” for purposes of tolling the statute of limitations where it made only passing reference to plaintiff’s ability “to make decisions about her life” and instead focused principally on evidence normally associated with the higher standard for criminal insanity, such as the absence of a “major mental illness” or “psychosis.” Fila v. Spruce Mountain Inn, 2005 VT 77, 178 Vt. 323, 885 A.2d 723, 2005 Vt. LEXIS 178 (2005).

This section requires more than a mental impairment affecting solely the lawsuit in issue for the statute of limitations to be tolled by plaintiff’s insanity. Goode v. State, 150 Vt. 651, 553 A.2d 142, 1988 Vt. LEXIS 174 (1988) (mem.).

Since plaintiff could handle every aspect of his life, including business and legal responsibilities, except those connected with his lawsuit, trial court correctly found that plaintiff was not insane within the meaning of this section. Goode v. State, 150 Vt. 651, 553 A.2d 142, 1988 Vt. LEXIS 174 (1988) (mem.).

A person may be insane, within the meaning of this section, when his mental disability makes him unable to manage his business affairs or estate, or to comprehend his legal rights and liabilities. Goode v. State, 150 Vt. 651, 553 A.2d 142, 1988 Vt. LEXIS 174 (1988) (mem.).

Statute would not run against person who is non compos mentis. Chamberlin v. Estey, 55 Vt. 378, 1883 Vt. LEXIS 49 (1883).

Minors.

Because the Dram Shop Act contains its own limitations provision and is not codified in the chapter governing limitation of actions, an action under the Dram Shop Act is “otherwise specially limited” and removed from the operation of the minority tolling provision by the statute stating that provisions of the chapter governing limitation of actions “shall not affect an action otherwise specially limited by law.” Pike v. Chuck's Willoughby Pub, Inc., 2006 VT 54, 180 Vt. 25, 904 A.2d 1133, 2006 Vt. LEXIS 135 (2006).

Statute of limitations runs against an infant having only color of title to land. Soule v. Barlow, 49 Vt. 329, 1877 Vt. LEXIS 15 (1877).

Cited.

Cited in Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985); Barquin v. Roman Catholic Diocese of Burlington, Vt., Inc., 839 F. Supp. 275, 1993 U.S. Dist. LEXIS 17777 (D. Vt. 1993); Earle v. State, 170 Vt. 183, 743 A.2d 1101, 1999 Vt. LEXIS 404 (1999).

§ 552. Absence from State.

If a person is out of the State when a cause of action of a personal nature mentioned in this chapter accrues against him or her, the action may be commenced within the time limited therefor after such person comes into the State. If a person is absent from and resides out of the State after a cause of action accrues against him or her and before the statute has run, and he or she has not known property within the State which can by common process of law be attached, the time of his or her absence shall not be taken as a part of the time limited for the commencement of the action. The provisions of this section shall not extend to a cause of action accruing in another state or government, when the parties thereto at the time of the accruing of such cause of action are residents of such other state or government.

History

Source.

V.S. 1947, § 1702. P.L. § 1661. G.L. § 1862. P.S. § 1563. V.S. § 1211. R.L. § 970. 1878, No. 32 . 1869, No. 31 . G.S. 63, § 15. 1854, No. 13 . R.S. 58, § 14. 1832, No. 3 , § 1. R. 1797, p. 598, § 10. 1793, p. 65.

CROSS REFERENCES

Tolling of statute of limitations not made inoperative by availability of service on Commissioner of Motor Vehicles, see § 892 of this title.

ANNOTATIONS

Absence and residence out of State.

Long arm statute, as amended in 1968 to permit service of process outside the State for personal judgment actions, did not supersede the 1961 amendment to the statute allowing service via the Commissioner of Motor Vehicles. Accordingly, the three-year statute of limitations was tolled when defendant resided out of state for the entire period and had no property in Vermont. Andrews v. Stam, 2007 VT 79, 182 Vt. 482, 939 A.2d 455, 2007 Vt. LEXIS 235 (2007).

Where debtor’s absence is coupled with residence out of State it comes within second provision of this section, and fact that he was absent from and resided out of State when the right of action accrued does not take it out of that provision. Bethel Mills, Inc. v. Whitcomb, 116 Vt. 357, 76 A.2d 548, 1950 Vt. LEXIS 164 (1950).

Mere absence from State will not prevent operation of statute while debtor retains residence in it by which process may be served upon him. Hall v. Nasmith, 28 Vt. 791, 1856 Vt. LEXIS 127 (1856); Davis v. Marshall, 37 Vt. 69, 1864 Vt. LEXIS 57 (1864); Rutland Marble Co. v. Bliss, 57 Vt. 23, 1885 Vt. LEXIS 40 (1885).

If debtor has his fixed residence out of State, all of his absences from State are to be deducted from time during which statute would otherwise be running. Hall v. Nasmith, 28 Vt. 791, 1856 Vt. LEXIS 127 (1856).

Burden of proof.

One who sought to avail himself of the statute of limitations was bound to prove that he had known attachable property within State for statutory period, if he had not been for the same period present or resident therein. Burnham v. Courser, 69 Vt. 183, 37 A. 288, 1896 Vt. LEXIS 31 (1896); Rixford v. Miller, Bort & Van Vetchten, 49 Vt. 319, 1877 Vt. LEXIS 13 (1877); Hill v. Bellows, 15 Vt. 727, 1843 Vt. LEXIS 117 (1843).

To avoid the statute of limitations upon the ground that the defendant, while residing without the state, had no known attachable property within the state, the plaintiff must affirmatively show that fact. Batchelder v. Barber, 67 Vt. 254, 31 A. 293, 1894 Vt. LEXIS 44 (1894).

Cause of action accruing in another state.

Statute that tolls a cause of action after its accrual while defendant is out of the State and does not own property in Vermont that can be attached excludes causes of action accruing in other states, so long as the parties to the accruing cause are residents of that state. Marine Midland Bank v. Bicknell, 2004 VT 25, 176 Vt. 389, 848 A.2d 1134, 2004 Vt. LEXIS 30 (2004).

Because plaintiff’s cause of action accrued when the parties were New York residents, the exception provided for in the tolling statute applied to the action. Marine Midland Bank v. Bicknell, 2004 VT 25, 176 Vt. 389, 848 A.2d 1134, 2004 Vt. LEXIS 30 (2004).

Purpose of the exception in the statute that tolls a cause of action after its accrual while defendant is out of the State is to prevent a plaintiff from failing to act when he could have done so in the foreign state. Marine Midland Bank v. Bicknell, 2004 VT 25, 176 Vt. 389, 848 A.2d 1134, 2004 Vt. LEXIS 30 (2004).

Where cause of action accrued in another state and parties thereto resided in such state at the time, statute of limitations applies; provisions of this section not extending to such case. Wetmore's Adm'r v. Karrick, 95 Vt. 318, 115 A. 234, 1921 Vt. LEXIS 218 (1921).

Term “residents” in last clause of this section means persons having such residence in such other state at time of accruing of cause of action that legal service of process could have been made upon them. Trask v. Karrick, 94 Vt. 70, 108 A. 846 (1919), same case 87 Vt. 451, 89 A. 472, 148 A.L.R. 734, 747.

Where parties resided in Massachusetts at time note was executed, but at time of maturity maker had neither abode nor property in that state, this section applied and maker’s absence from this State prevented running of statute. Trask v. Karrick, 94 Vt. 70, 108 A. 846 (1919), same case 87 Vt. 451, 89 A. 472, 148 A.L.R. 734, 747.

Execution, time for issuance.

Rule as to time within which an execution may issue was held not modified by the debtor’s absence from and residence without State and in this respect it is not analogous to statute. Yatter v. Smilie, 72 Vt. 349, 47 A. 1070, 1900 Vt. LEXIS 147 (1900).

Foreign corporations.

Statute does not commence running against foreign corporation until they have attachable property in this State, although, previous to that time, there may be directors and stockholders of such corporation residing in the State. Hall v. Vermont & Mass. R.R., 28 Vt. 401, 1856 Vt. LEXIS 50 (1856).

—Generally.

In order to hold an insurance company liable as garnishee on an indebtedness by reason of its liability on a policy of insurance, a present fixed liability to pay the insured for the loss insured against must be shown; that is it must be shown that the legal obligation is absolute, and not contingent or dependent upon unperformed conditions. Ricker v. Lajoie, 314 F. Supp. 401, 1970 U.S. Dist. LEXIS 11032 (D. Vt. 1970).

Known attachable property within State, in order to keep statute in operation, must be such as would be of substantial benefit to creditor. Munroe v. Potter, 65 Vt. 234, 26 A. 901, 1893 Vt. LEXIS 50 (1893); Wheeler v. Brewer, 20 Vt. 113, 1848 Vt. LEXIS 2 (1848).

In order to entitle absent defendant to claim benefit of statute, on ground that he has had known property within State, defendant’s ownership of property must be notorious to such an extent that it would not escape a reasonable search and inquiry on the part of plaintiff. Wheeler v. Brewer, 20 Vt. 113, 1848 Vt. LEXIS 2 (1848).

Where defendant, at time he removed from State, had legal title to a farm but had never been in actual possession of the land, which had been occupied by his grantor and had continued to stand to his grantor in the grand list, and plaintiff resided in town where land was situated but had no actual knowledge of the defendant’s claim to land, this did not constitute “known property.” Wheeler v. Brewer, 20 Vt. 113, 1848 Vt. LEXIS 2 (1848).

Where debtor had known property which could be attached by common and ordinary process, and creditor might have had knowledge of it by reasonable diligence, statute continued to run although creditor had no actual knowledge of property. Tucker v. Wells, 12 Vt. 240, 1840 Vt. LEXIS 39 (1840).

Partners.

Debt may become barred by statute of limitations as to one member of a partnership in State and not as to those out of state. Spaulding v. Ludlow Woolen Mill, 36 Vt. 150, 1863 Vt. LEXIS 53 (1863).

Residence defined.

Debtor must be considered “to be absent from and reside out of State,” within this section when his domicile within State is so broken up, that it would not be competent to serve process upon him by leaving copy there, and for that purpose there must be some place of abode, which his family exclusively maintains, in his absence, and to which he may be expected soon, or in some convenient time, to return. Hackett v. Kimball, 23 Vt. 275 (1851). But see § 553 of this title and annotations thereunder.

Return to State.

If debtor residing outside State when cause of action accrues comes into State temporarily, with no intention of residing there, creditor not knowing thereof, statute is not thereby set in operation. Davis v. Field, 56 Vt. 426, 1884 Vt. LEXIS 61 (1884); Hill v. Bellows, 15 Vt. 727, 1843 Vt. LEXIS 117 (1843); Mazozon v. Foot, 1 Aik. 282 (Vt. 1826).

If debtor residing out of State when cause of action accrues comes to dwell and reside permanently in state, it is not necessary that creditor have knowledge of this fact to set statute in operation; it is enough if he can acquire such knowledge by exercise of reasonable diligence. Davis v. Field, 56 Vt. 426, 1884 Vt. LEXIS 61 (1884); Mazozon v. Foot, 1 Aik. 282 (Vt. 1826).

Statute will commence running against a person residing out of State, having no known attachable property within it, only from such time as he comes to reside or remain in the State. Russ v. Fay, 29 Vt. 381, 1857 Vt. LEXIS 48 (1857).

Cited.

Cited in Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122, 1990 Vt. LEXIS 256 (1990); Martel v. Stafford, 157 Vt. 604, 603 A.2d 345, 1991 Vt. LEXIS 229 (1991).

§ 553. Member of Armed Services; tolling statute of limitations.

When an inhabitant of this State is in the Military or Naval Service of the United States or is a member of the Vermont National Guard and has been ordered to State active duty and, at the time of entering such service or duty, had a cause of action against another person, or another person had a cause of action against him or her, the time spent in such Military or Naval Service outside this State or the time spent in State active duty shall not be taken as part of the time limited for the bringing of an action by or against him or her founded on such causes. The limitation period for a cause of action shall be tolled during the duration of the person’s out-of-state Military or Naval Service, or State Active Duty Service, plus an additional 60 days.

HISTORY: Amended 2011, No. 149 (Adj. Sess.), § 5a.

History

Source.

V.S. 1947, § 1701. P.L. § 1660. G.L. § 1861. P.S. § 1562. V.S. § 1210. R.L. § 969. G.S. 63, § 20. 1861, No. 74 .

Amendments

—2011 (Adj. Sess.). Added “tolling statute of limitations” to the section catchline; inserted “or is a member of the Vermont National Guard and has been ordered to state active duty” following “United States”; “or her” following “him” in two places; “or the time spent in state active duty” following “state” and added the second sentence.

ANNOTATIONS

Family residing in state.

Under statute (G.S. 63, § 20) time of absence from State of a person as soldier was deducted in computing period of statute of limitations, notwithstanding he had family residing in state during his absence. Cardell v. Carpenter, 42 Vt. 234 (1869), same case 43 Vt. 84.

Military service.

Time spent in military service of United States was held not to be included in the six year period limited by § 511 of this title. Bethel Mills, Inc. v. Whitcomb, 116 Vt. 357, 76 A.2d 548, 1950 Vt. LEXIS 164 (1950).

Retroactive effect.

Act of 1863 (G.S. 63, § 20) was retrospective as well as prospective. Cardell v. Carpenter, 43 Vt. 84 (1870), same case 42 Vt. 234, 16 A.L.R. 1344, 137 A.L.R. 1445.

§ 554. Alien enemies in time of war.

When a person is disabled to prosecute an action by being a subject or citizen of a country at war with the United States, the time of the continuance of such war shall not be deemed part of the respective periods limited in this chapter for the commencement of actions.

History

Source.

V.S. 1947, § 1699. P.L. § 1658. G.L. § 1859. P.S. § 1560. V.S. § 1208. R.L. § 967. G.S. 63, § 14. R.S. 58, § 13.

§ 555. Fraud.

When a person entitled to bring a personal action is prevented from so doing by the fraudulent concealment of the cause of such action by the person against whom it lies, the period prior to the discovery of such cause of action shall be excluded in determining the time limited for the commencement thereof.

History

Source.

V.S. 1947, § 1703. P.L. § 1662. G.L. § 1863. 1917, No. 78 .

ANNOTATIONS

Burden of proof.

One alleging application of this section has burden of showing it to be applicable and must establish a concealment, a fraudulent intent or design to prevent discovery of facts giving rise to his cause of action, and that defendant had actual knowledge of a fact. Alexander v. Gerald E. Morrissey, Inc., 137 Vt. 20, 399 A.2d 503, 1979 Vt. LEXIS 933 (1979).

Where plaintiff alleged as an exception to the statute of limitations, the fraudulent concealment of his cause of action under the wrongful death and survival statutes, plaintiff acquired the burden of proving both concealment and a fraudulent design to prevent discovery of facts giving rise to the action. Merrill v. Reville, 135 Vt. 517, 380 A.2d 96, 1977 Vt. LEXIS 669 (1977).

One who claims that statute has not run either because of this section or that a person became constructive trustee against whom statute did not run until facts are known or should have been known must in either case show fraud on part of person charged to toll statute. Estate of Delligan, 111 Vt. 227, 13 A.2d 282 (1940), same case 110 Vt. 294, 6 A.2d 1, 173 A.L.R. 581, 55 A.L.R.2d 239, 63 Harv. L.Rev. 1221.

Defective construction.

Where architect whose plans called for ceiling insulation with an R-19 thermal resistance was sent by contractor a letter and specification sheet stating contractor planned to use insulation with an R-19 air-conditioning thermal resistance and an R-15 heating thermal resistance, and asking for architect’s advice, and architect replied with notation “R19—ceilings . . . o.k.,” and insulation with a heating purposes thermal resistance of R-15 was installed, architect knew the installed insulation did not comply with his plans, and that knowledge, coupled with his representation to plaintiff owner of the building, that the building was built as it was supposed to be, amounted to fraudulent concealment of plaintiff’s cause of action for breach of contract sufficient to toll statute of limitations under this section. Alexander v. Gerald E. Morrissey, Inc., 137 Vt. 20, 399 A.2d 503, 1979 Vt. LEXIS 933 (1979).

Where complaint alleging defective construction also charged active concealment of the defective work, and that such work was latent and not apparent to plaintiff in the exercise of reasonable diligence, the issue of fraudulent concealment, tolling six year statute of limitations until the time the discovery of the defects was made, was raised. Standard Pkg. Corp. v. Julian Goodrich Archs., 136 Vt. 376, 392 A.2d 402, 1978 Vt. LEXIS 632 (1978).

Fraudulent concealment.

Limitations period was not tolled by appellant’s 2011 incarceration, as it occurred after the cause of action had accrued, or under the fraudulent concealment statute, as the alleged fraud appellant asserted would have occurred years after the cause of action accrued and thus did not prevent him from discovering it. Jadallah v. Town of Fairfax, 2018 VT 34, 207 Vt. 413, 186 A.3d 1111, 2018 Vt. LEXIS 32 (2018).

Any claim of fraudulent concealment was subsumed within the central preliminary question disputed by the parties, ruled on by the trial court, and to be considered by the jury on remand: when a patient should have known that her surgeon was sexually assaulting her instead of treating her. Clarke v. Abate, 2013 VT 52, 194 Vt. 294, 80 A.3d 578, 2013 Vt. LEXIS 69 (2013).

There was no merit to defendants’ argument that a trustee’s fraudulent concealment of material facts tolled the limitations period on their conflict of interest/self-dealing counterclaim. There was no concealment of the trustee’s ownership, or her status as beneficiary and trustee, or of her desire for ownership of the remainder of the property in question, and those were the material facts to be known. In re Estate of Alden v. Alden, 2011 VT 64, 190 Vt. 401, 35 A.3d 950, 2011 Vt. LEXIS 71 (2011).

Where the claim at issue was an in rem claim for foreclosure of a lien, which was a claim against condominiums purchased by defendants, as opposed to a claim against the defendants, the statute of limitations for the claim was not tolled pursuant to 12 V.S.A. § 555 because that section allows for tolling only with respect to personal, or in personam, actions. Lodge at Bolton Valley Condominium Ass'n v. Hamilton, 2006 VT 41, 180 Vt. 497, 905 A.2d 611, 2006 Vt. LEXIS 94 (2006) (mem.).

Limitations period under dram shop statute was not tolled by this section, since any fraudulent concealment by owner of drinking establishment did not prevent plaintiff from bringing his dram shop claim within the limitations period. Rodrique v. VALCO Enterprises, Inc., 169 Vt. 539, 726 A.2d 61, 1999 Vt. LEXIS 16 (1999) (mem.).

This section was properly applied to toll limitations period in tort action brought against defendants for burning down a barn rented by plaintiffs, from the date of the fire until plaintiffs discovered its cause. Turcotte v. Estate of LaRose, 153 Vt. 196, 569 A.2d 1086, 1989 Vt. LEXIS 243 (1989).

In order to invoke the protection of this section, the fraudulent acts must have occurred at a time to prevent the plaintiff from bringing a personal action. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985).

In action for breach of express and implied warranties arising from sale of dairy cattle in which plaintiffs also alleged fraudulent misrepresentation as to the condition of the cattle on the part of the defendants, the question of whether the statute of limitations was tolled by the fraudulent concealment of the defendants was a question for the trier of fact, and it was therefore improper, as a matter of law, to grant summary judgment for the defendants on the ground that the action was barred by the statute of limitations. Aube v. O'Brien, 140 Vt. 1, 433 A.2d 298, 1981 Vt. LEXIS 542 (1981).

It was for the jury to determine, in deciding whether plaintiff had been prevented by defendant’s fraudulent concealment of his cause of action from instituting suit under wrongful death and survival statutes, if defendant had actual knowledge of the fact that a contraceptive pill, which was being taken by plaintiff’s wife at the time of her gall bladder operation, caused blood clots and then concealed the fact from the plaintiff. Merrill v. Reville, 135 Vt. 517, 380 A.2d 96, 1977 Vt. LEXIS 669 (1977).

If properly pleaded, fraudulent concealment can vitiate the statutory bar of the limitations defense. South Burlington School District v. Goodrich, 135 Vt. 601, 382 A.2d 220, 1977 Vt. LEXIS 687 (1977).

This section appears merely declaratory of common law, enacted for purpose of removing any doubt to be implied from the decisions. Troy v. American Fidelity Co., 120 Vt. 410, 143 A.2d 469, 1958 Vt. LEXIS 119 (1958).

Although general rule is that fraudulent concealment of cause of action which will postpone running of statute of limitations must consist of some affirmative act, concealment of facts by one whose duty it is to disclose them is deemed to be fraudulent. Troy v. American Fidelity Co., 120 Vt. 410, 143 A.2d 469, 1958 Vt. LEXIS 119 (1958).

Concealment of cause of action that tolls statute must be fraudulent and with design to prevent discovery of facts which give rise to action. Estate of Delligan, 111 Vt. 227, 13 A.2d 282 (1940), same case 110 Vt. 294, 6 A.2d 1, 173 A.L.R. 581, 55 A.L.R.2d 239, 63 Harv. L.Rev. 1221.

While some material fact must be concealed by positive or affirmative act as distinguished from mere silence, it is immaterial whether concealment precedes, is concurrent with, or subsequent to, beginning of cause of action; and fraud by which concealment is accomplished need not be other than that which constitutes cause of action, if it actually has such effect. Watts v. Mulliken's Est., 95 Vt. 335, 115 A. 150, 1921 Vt. LEXIS 221 (1921).

Effect of original fraud, whether operating to conceal cause of action or not, is controlling factor when defendant does no more than to remain silent, and it is duty of defendant to disclose a breach of trust or confidence, his mere silence, if it conceals facts, is an affirmative act postponing running of statute of limitations. Watts v. Mulliken's Est., 95 Vt. 335, 115 A. 150, 1921 Vt. LEXIS 221 (1921).

Statute does not run against an equity founded upon subsisting trust, nor against an equity founded on fraud, while person against whom equity is claimed keeps fraud concealed from party claiming equity. Payne v. Hathaway, 3 Vt. 212, 1831 Vt. LEXIS 13 (1831).

Knowledge.

The actual knowledge required of a defendant as an element of a fraudulent concealment of a cause of action against defendant which will toll a statute of limitations must be distinguished from the scienter required as an element of the tort of misrepresentation, where haphazard falsehood and intentional passing off of belief for knowledge are of the same effect as conscious misstatement of fact. Alexander v. Gerald E. Morrissey, Inc., 137 Vt. 20, 399 A.2d 503, 1979 Vt. LEXIS 933 (1979).

Parties.

In suit by insurance company to recover proceeds paid out, statute of limitations was not tolled with respect to wife who was not involved in causing fire, during period between destruction of barn by fire and charging of husband with hiring person to set fire, where it was not shown that wife fraudulently concealed facts of fire. Stankiewicz v. Estate of LaRose, 151 Vt. 453, 561 A.2d 400, 1989 Vt. LEXIS 80 (1989).

Pleading.

Where a condominium association first raised its in personam claims against defendants when it filed its first amended complaint on a date sixteen days after the six-year limitations period expired, because its in rem and in personam claims arose from the same transaction, and defendants were on notice of the litigation, the in personam claims related back to the date the initial complaint was filed. Lodge at Bolton Valley Condominium Ass'n v. Hamilton, 2006 VT 41, 180 Vt. 497, 905 A.2d 611, 2006 Vt. LEXIS 94 (2006) (mem.).

Withdrawal of bank account.

Where plaintiff’s bank deposit was wrongfully withdrawn and converted by her brother and she did not discover fact until after his death nine years later, his failure to disclose withdrawal was fraudulent concealment within this section. Watts v. Mulliken's Est., 95 Vt. 335, 115 A. 150, 1921 Vt. LEXIS 221 (1921).

Cited.

Cited in In re Peterson, 93 B.R. 323, 1988 Bankr. LEXIS 2277 (Bankr. D. Vt. 1988).

Law Reviews —

For note relating to statutes of limitations for architects, see 9 Vt. L. Rev. 101 (1984).

§ 555a. Fraudulent transfers.

Limitations of actions with respect to fraudulent transfers or obligations under 9 V.S.A. chapter 57, subchapter 1, shall be governed by the provisions of 9 V.S.A. § 2293 .

HISTORY: Added 1995, No. 179 (Adj. Sess.), § 17.

§ 556. Injunction staying action.

When the commencement of an action is stayed by injunction, the time during which such injunction is in force shall not be deemed a part of the time in this chapter limited for the commencement of such action.

History

Source.

V.S. 1947, § 1704. P.L. § 1663. G.L. § 1864. 1947, No. 254 , § 1827. P.S. § 1564. V.S. § 1212. R.L. § 971. G.S. 63, § 18. R.S. 58, § 17.

§ 557. Death of party.

  1. If a person, by or against whom an action may be brought, dies before the expiration of the time within which such action may be commenced as provided by this chapter or dies within 30 days after the expiration of such times, the period of limitation as to such action shall cease to operate at the date of his or her death.  After the issuance of letters testamentary or of administration, such action, if the cause of action survives, may be commenced by or against the executor or administrator within two years, and not after.
  2. If commissioners are appointed on such estate and the claim against the decedent is a claim proper for the consideration of the commissioners, the same shall be presented to the commissioners within the time allowed other creditors to present their claims.  Such claim may be presented to the commissioners any time within 15 years after the date of such death, and not after, but such claim shall be presented in accordance with the provisions of 14 V.S.A. chapter 65.

History

Source.

V.S. 1947, § 1705. 1947, No. 202 , § 1740. 1937, No. 42 , § 1. P.L. § 1664. G.L. § 1865. P.S. § 1565. V.S. § 1213. R.L. § 972. G.S. 63, § 16. R.S. 58, § 15.

References in text.

Chapter 65 of Title 14, referred to in subsec. (b), was repealed by 1975, No. 240 (Adj. Sess.), § 12.

Revision note—

Undesignated paragraphs were designated as subsecs. (a) and (b) to conform to V.S.A. style.

CROSS REFERENCES

Limitation of action for death from wrongful act, see 14 V.S.A. § 1492 .

ANNOTATIONS

Generally.

This section is a true statute of limitations, purpose of which is to make necessary the bringing of an action within a reasonable time and thus prevent fraudulent and stale claims from being brought at a time when witnesses have died or disappeared and documentary evidence has been lost or destroyed. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345, 1991 Vt. LEXIS 229 (1991).

Statute of limitations provision was a remedial statute intended to avoid harsh common law rule that actions abate on defendant’s death which sometimes shortened limitation period within which a plaintiff might sue, but often lengthened it. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345, 1991 Vt. LEXIS 229 (1991).

Survival action brought for bodily hurt pursuant to 14 V.S.A. §§ 1452 and 1453 must be brought within two years from date of issuance of letters of administration, and not thereafter. Law's Admr. v. Culver, 121 Vt. 285, 155 A.2d 855, 1959 Vt. LEXIS 121 (1959).

Periods of limitation provided by 14 V.S.A. § 1492 and this section are not suspended by reason of defendant’s absence from state where substituted service under 12 V.S.A. § 891 is available. Law's Admr. v. Culver, 121 Vt. 285, 155 A.2d 855, 1959 Vt. LEXIS 121 (1959).

Though period of limitation for bringing an action under § 501 of this title ceases to operate with death of mortgagor by virtue of this section, period limiting right or title of entry under mortgage to fifteen years from time such right of entry accrued continues to operate under § 502 of this title. Cameron v. Bailey, 117 Vt. 158, 86 A.2d 643, 1952 Vt. LEXIS 116 (1952).

When debtor died before statute had run upon his debt, his death at most only suspended operation of statute until two years after grant of letters testamentary or of administration upon his estate. Briggs v. Estate of Thomas, 32 Vt. 176, 1859 Vt. LEXIS 81 (1859).

Applicability.

Statute pertaining to the death of a party applies to causes of action that exist before a decedent’s death—causes that could be brought by him or against him while he was alive. From a plain-language reading of the text, it does not apply to causes of action that accrue after death. Benson v. MVP Health Plan, Inc., 2009 VT 57, 186 Vt. 97, 978 A.2d 33, 2009 Vt. LEXIS 53 (2009).

Statute pertaining to the death of a party applies only “if the cause of action survives”; the legislature’s use of the word “survives” indicates that it intended to craft a statute of limitations for certain survival actions. Survival actions are generally understood to be lawsuits on behalf of a decedent’s estate for injuries or damages incurred by the deceased before dying, and do not include causes of action accruing to an estate after a decedent’s death. Benson v. MVP Health Plan, Inc., 2009 VT 57, 186 Vt. 97, 978 A.2d 33, 2009 Vt. LEXIS 53 (2009).

Plain language of the statute pertaining to the death of a party establishes a limitations period only for causes of action that could have been brought by or against the deceased during his lifetime and does not apply to causes of action by or against an estate that accrue after the decedent’s death. Accordingly, the trial court erred in concluding that an administrator’s claim against an insurer that accrued after the decedent’s death was barred by the statute. Benson v. MVP Health Plan, Inc., 2009 VT 57, 186 Vt. 97, 978 A.2d 33, 2009 Vt. LEXIS 53 (2009).

Commencement of limitations period.

Period of limitations for bringing action against Vermont resident on behalf of decedent began to run when executor of decedent’s estate was appointed in New York, rather than at time of issuance of ancillary letters testamentary by Vermont court; to construe subsection (a) of this section otherwise would mean allowing the commencement of the period of limitations to be determined by plaintiff. Estate of Harris v. Eichel, 152 Vt. 180, 565 A.2d 1281, 1988 Vt. LEXIS 245 (1988).

Death in another state.

Person having died in another state, place of his residence, leaving a portion of his estate there and portion in the state, claims could be prosecuted against portion here the same as though sole administration of the estate was in this state, and in such case running of statute of limitations was suspended, as in other cases, during time between death of party and appointment of administrator here. Hicks v. Clark, 41 Vt. 183, 1868 Vt. LEXIS 98 (1868).

Notice.

In dispute over whether tort action was timely brought, this section did not deny plaintiff due process of law by not providing actual notice to tort claimants of triggering of two-year limitations period, where diligent plaintiffs would not fail to discover a potential defendant’s death during the statute’s time limit, and the state’s interest in preventing stale claims was too great. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345, 1991 Vt. LEXIS 229 (1991).

For purposes of due process requirements, degree of state involvement in particular limitation of actions statutory provision is sufficient to constitute “state action” where probate court issues letters testamentary or letters of administration after notice by publication and hearing, there is no notice of this action by the court or by the executor or administrator, and the legal proceedings trigger the time bar so that the statute is not self-executing. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345, 1991 Vt. LEXIS 229 (1991).

Pleading.

Although defendant included “[s]tatute of [l]imitations” in a list of seven “affirmative defenses” set forth in his answer, the statute he relies upon on appeal, the two-year statute of limitations for survival actions, was never asserted below and the bare assertion of an intention to raise the statute of limitations is insufficient to preserve the defense where defendant failed to identify either the statute of limitations upon which he relied or the count to which it applied. In re Estate of Peters, 171 Vt. 381, 765 A.2d 468, 2000 Vt. LEXIS 299 (2000).

Where promise of deceased person was declared upon, plea that cause of action did not accrue within six years before commencement of the suit was insufficient. Smith v. Purmort's Adm'rs, 63 Vt. 378, 20 A. 928, 1891 Vt. LEXIS 118 (1891).

Where plaintiff declared in common counts, and afterwards new assigned, setting up contract and a breach thereof within six years and thirty days prior to death of deceased, and defendant pleaded non accrevit within such six years and thirty days, to which plea plaintiff demurred, demurrer should be overruled; and statute of limitations was good defense to contract set out in the new assignment, and by demurrer plaintiff admitted that facts stated in plea existed. Putnam v. Ward's Adm'r, 61 Vt. 42, 17 A. 740, 1888 Vt. LEXIS 107 (1888).

Timeliness.

Where a plaintiff was appointed trustee of an estate under 14 V.S.A. § 2306 in 1980 and vested with the power to prosecute the rights of the decedent but was not appointed administratrix of the estate until 1992, plaintiff’s survival claims were timely filed within the applicable two year statute of limitation prescribed by the governing section, 12 V.S.A. § 557(a) . Leo v. Hillman, 164 Vt. 94, 665 A.2d 572, 1995 Vt. LEXIS 81 (1995).

Wrongful death actions.

This section’s provision that if one by or against whom an action may be brought dies before expiration of time within which such action may be commenced, then the period of limitation as to such action shall cease to operate at the date of death, and after issuance of letters testamentary or of administration the action, if the cause of action survives, may be commenced within two years, does not apply to a wrongful death action. Parent v. Beeman, 138 Vt. 607, 420 A.2d 866, 1980 Vt. LEXIS 1376 (1980).

§ 558. New action after failure of original action.

  1. The plaintiff may commence a new action for the same cause within one year after the determination of the original action, when the original action has been commenced within the time limited by any statute of this State, and the action has been determined for any of the following reasons:
    1. where the action is dismissed for insufficiency of process caused by unavoidable accident or by default or neglect of the officer to whom the process was committed;
    2. where the action is dismissed for lack of jurisdiction of the subject matter or person, improper venue, or failure to join an indispensable party;
    3. where the action is defeated or avoided by the death of a party thereto;
    4. where judgment for the plaintiff is reversed on appeal on one of the grounds listed in subdivisions (1) and (2) of this subsection.
  2. If the cause of action survives, the plaintiff’s executor or administrator may commence the action within one year after the determination of the original action. If an executor or administrator is not appointed within that time, then the new action may be commenced within one year after letters testamentary or of administration are granted.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 34, eff. March 29, 1972; 1973, No. 151 (Adj. Sess.), § 1, eff. date, see note set out below.

History

Source.

V.S. 1947, § 1706. P.L. § 1665. G.L. § 1866. P.S. § 1566. V.S. § 1214. R.L. § 973. G.S. 63, § 17. R.S. 58, § 16. R. 1797, p. 597, § 9. 1793, p. 65. 1787, p. 92.

Amendments

—1973 (Adj. Sess.). Subsec. (a): Substituted the words “by any statute of this state” for “in this chapter”.

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Generally.

Presenting of claim to commissioners was beginning of new suit within this section and would avoid effect of statute of limitations if made within one year from time when former suit was discontinued by appointment of such commissioners. Walker v. Wooster's Adm'r, 61 Vt. 403, 17 A. 792, 1889 Vt. LEXIS 56 (1889).

Where action failed on account of neglect of magistrate to appear with writ at time and place of trial, and plaintiff brought another action within year, statute of limitations would not be a bar to the suit. Spear v. Curtis, 40 Vt. 59, 1867 Vt. LEXIS 61 (1867).

Where plaintiff brought suit before justice of peace, who once continued cause, and was absent at second time appointed, by which suit was necessarily discontinued, he could bring another suit within one year after such discontinuance, and statute of limitations would not be a bar to suit, unless cause of action had become barred before commencement of former action. Phelps v. Wood, 9 Vt. 399, 1837 Vt. LEXIS 58 (1837).

Abatement of writ.

This section is clear as to when a plaintiff has the right to bring a new action for the same cause and is not susceptible of exceptions, conditions or requirements by which its saving provisions would be forfeited. Leno v. Meunier, 125 Vt. 30, 209 A.2d 485, 1965 Vt. LEXIS 194 (1965).

Language of this section infers that when writ is abated for any cause there has been an “action commenced” within the meaning of section, otherwise there would be no writ to be abated. Hayden v. Caledonia Nat’l Bank, 112 Vt. 491, 28 A.2d 389 (1942), same case 112 Vt. 30, 20 A.2d 675, 142 A.L.R. 1178.

It was not enough to allege that former suit was abated for defective service and present suit brought within a year from such abatement, but it must further appear that cause of defective service was within statute. Scott v. School District No. 9, 67 Vt. 150, 31 A. 145, 1894 Vt. LEXIS 29 (1894).

—Generally.

Suit tried on merits, and questions involved, whether of law or fact, finally determined, cannot be said to have failed for matter of form because plaintiff omitted therein to rely on other facts available to him. Johnson v. Wells-Lamson Quarry Co., 103 Vt. 475, 156 A. 681, 1931 Vt. LEXIS 195 (1931).

Defeat because of variance between allegations and proof, or failure to support action by evidence because of an averment that makes some fact material which would otherwise be immaterial was not defeat for “matter of form.” Kent v. Batchelder, 88 Vt. 563, 93 A. 264, 1915 Vt. LEXIS 269 (1915); Poland v. Grand Trunk Ry., 47 Vt. 73, 1874 Vt. LEXIS 81 (1874).

This section does not extend to case where first suit was terminated by nonsuit occasioned by inability of plaintiff, through poverty, to comply seasonably with order that plaintiff furnish additional security for defendant’s costs. Hayes v. Stewart, 23 Vt. 622, 1851 Vt. LEXIS 82 (1851).

Arrest of judgment.

Where judgment of Supreme Court compelled plaintiffs to elect either to amend their declaration and have new trial on terms imposed, or to have judgment arrested, their election to submit to an arrest of judgment was not voluntary, and therefore did not bar new action for the same cause within year. Baker v. Sherman, 77 Vt. 167, 59 A. 167 (1904), same case 71 Vt. 439, 46 A. 57, 75 Vt. 88, 53 A. 330.

Rejoinder, which admitted that suit terminated in an arrest of judgment as set forth in replication to plea of statute of limitations, but alleged that such termination resulted from voluntary action of plaintiff, was a plea of avoidance and did not amount to general denial. Baker v. Sherman, 75 Vt. 88, 53 A. 330 (1902), same case 71 Vt. 439, 46 A. 57, 73 Vt. 26, 50 A. 633, 77 Vt. 167, 59 A. 167.

Construction.

Provisions of this section are remedial and should be liberally construed. Hayden v. Caledonia Nat’l Bank, 112 Vt. 491, 28 A.2d 389 (1942), same case 112 Vt. 30, 20 A.2d 675, 142 A.L.R. 1178.

Disposition on merits.

This section does not apply to a cause that was previously disposed of on its merits. Kent v. Batchelder, 88 Vt. 563, 93 A. 264, 1915 Vt. LEXIS 269 (1915).

Failure of service.

Where action was dismissed because service was not made within required time after filing of complaint, statutory limitation period for the action passed, and a new complaint was filed, new complaint was not saved by this section, for plaintiff had burden to see that service was made and failed to do so. Weisburgh v. McClure Newspapers, Inc., 136 Vt. 594, 396 A.2d 1388, 1979 Vt. LEXIS 915 (1979).

Suit is commenced within meaning of this section when writ is issued for purpose of having it served and proceeded with though writ fails of service or sufficient service, provided service fails through unavoidable accident. Hayden v. Caledonia Nat’l Bank, 112 Vt. 491, 28 A.2d 389 (1942), same case 112 Vt. 30, 20 A.2d 675, 142 A.L.R. 117; Tracy v. Grand Trunk Ry., 76 Vt. 313, 57 A. 104, 1904 Vt. LEXIS 141 (1904).

Writ “fails of sufficient service,” within this section, when there is an utter failure of service. Tracy v. Grand Trunk Ry., 76 Vt. 313, 57 A. 104, 1904 Vt. LEXIS 141 (1904).

Evidence tended to show that failure of service in question resulted from “unavoidable accident” within this section. Tracy v. Grand Trunk Ry., 76 Vt. 313, 57 A. 104, 1904 Vt. LEXIS 141 (1904).

Replication to statute of limitations setting forth that previous suit was seasonably begun, but that writ in such suit was not duly served, should allege that such failure of service was due to unavoidable accident or to fault or neglect of the officer serving the same. Scott v. School District No. 9, 67 Vt. 150, 31 A. 145, 1894 Vt. LEXIS 29 (1894).

Form of action.

Where plaintiff was at law, driven to nonsuit by decision of court that form of action could not be sustained, he could commence another action in one year from the termination of that action before the statute of limitations would run at law. Spear & Carlton v. Newell, 13 Vt. 288, 1841 Vt. LEXIS 61 (1841).

Historical.

This section had its beginning in the distant past, tracing its origin to English limitation act 1623 (21 James I, ch. 16, § 4), and with some additions has been law of this state for more than one hundred fifty years. Hayden v. Caledonia Nat’l Bank, 112 Vt. 491, 28 A.2d 389 (1942), same case 112 Vt. 30, 20 A.2d 675, 142 A.L.R. 1178.

This section has no application to subject of jurisdiction, but is simply a modification of statute of limitations. Goff v. Robinson, 60 Vt. 633, 15 A. 339 (1888), same case 62 Vt. 60, 19 A. 993.

Lack of jurisdiction.

Failure to file a certificate of merit does not divest the court of its general power to hear a medical malpractice action. Thus, the dismissal of plaintiff’s case for failing to file a certificate of merit was not a dismissal for lack of subject matter jurisdiction, and plaintiff’s claim was not protected by the statute governing a new action after the failure of the original action. Quinlan v. Five-town Health Alliance, Inc., 2018 VT 53, 207 Vt. 503, 192 A.3d 390, 2018 Vt. LEXIS 53 (2018).

Where first suit dismissed for lack of jurisdiction was brought in federal court the plaintiff may begin a new suit in state court pursuant to this section. Leno v. Meunier, 125 Vt. 30, 209 A.2d 485, 1965 Vt. LEXIS 194 (1965).

This section providing that a new action may be begun within a stated time if the first action was brought within the period of limitations and was dismissed on a ground not affecting the merits is applicable to suits dismissed for lack of jurisdiction. Leno v. Meunier, 125 Vt. 30, 209 A.2d 485, 1965 Vt. LEXIS 194 (1965).

Wrong party.

There was a failure “for matter of form”, where action was brought in name of wrong party. Premo v. Lee, 56 Vt. 60, 1884 Vt. LEXIS 54 (1884); Spear v. Braintree, 47 Vt. 729, 1875 Vt. LEXIS 53 (1875).

Cited.

Cited in West v. Village of Morrisville, 728 F.2d 130, 1984 U.S. App. LEXIS 25445 (2d Cir. 1984).

§ 559. Rights not affected by a descent cast.

The right of a person to the possession of real estate shall not be impaired or affected by a descent being cast in consequence of the death of a person in possession of such estate.

History

Source.

V.S. 1947, § 1714. P.L. § 1673. G.L. § 1874. P.S. § 1574. V.S. § 1222. R.L. § 953. G.S. 63, § 3. R.S. 58, § 3.

§ 560. Childhood sexual abuse.

When a person entitled to bring an action for damages as a result of childhood sexual abuse is unable to commence the action as a direct result of the damages caused by the sexual abuse, the period during which the person is incapacitated shall not be taken as a part of the time limited for commencement of the action.

HISTORY: Added 1989, No. 292 (Adj. Sess.), § 3.

Subchapter 4. New Promise and Payment

§ 591. New promise must be in writing and signed.

An acknowledgment or promise shall not be held to affect a defense made under the provisions of this chapter, unless such acknowledgment or promise is in writing signed by the party affected thereby.

History

Source.

V.S. 1947, § 1707. P.L. § 1666. G.L. § 1867. P.S. § 1567. V.S. § 1215. R.L. § 974. G.S. 63, § 25. 1842, No. 26 . R.S. 58, § 22.

ANNOTATIONS

Generally.

New promise will revive right of action whether made before or after statute of limitations has run. Chaffee’s Sons v. Estate of Blanchard, 105 Vt. 389, 165 A. 912 (1933), same case 105 Vt. 442, 168 A. 695; Carlton v. Ludlow Woolen Mill, 27 Vt. 496, 1854 Vt. LEXIS 123 (1854).

Liability arising from an acknowledgment or new promise was as limited as liability under original contract on which it was based, and was effective in avoiding bar of statute only for like length of time. Rowell v. Estate of Lewis, 72 Vt. 163, 47 A. 783, 1900 Vt. LEXIS 107 (1900).

Implied promise.

New promise cannot be implied from payment made to secure the discontinuance of a trustee suit on note, when there is no intention on the part of the payor to make payment on note, though payee without knowledge of payor endorses on note part of money so paid. Terrill v. Deavitt, 73 Vt. 188, 50 A. 801, 1901 Vt. LEXIS 151 (1901).

An acknowledgment, in order to remove bar of statute, must be such that promise to pay can be implied from it. Prescott v. Town of Vershire, 63 Vt. 517, 22 A. 655, 1891 Vt. LEXIS 145 (1891).

—Generally.

“I will pay this note at any time,” endorsed on note and signed and dated by payor, was not waiver of statute of limitations, but was new promise. Rowell v. Estate of Lewis, 72 Vt. 163, 47 A. 783, 1900 Vt. LEXIS 107 (1900).

Letter.

Defendant’s letter, which contained no acknowledgment but rather an indirect denial of any indebtedness, was not a new promise within statute. George v. Vermont Farm Mach. Co., 65 Vt. 287, 26 A. 722, 1893 Vt. LEXIS 55 (1893).

A letter which was an admission of existence of an unsettled account, and an expression of willingness to settle it, unaccompanied by an expression of unwillingness to pay balance that might be found due, took plaintiff’s claim out of statute. Bliss v. Allard, 49 Vt. 350, 1877 Vt. LEXIS 18 (1877).

Retroactive effect.

G.S. 63, § 25, was prospective, and not retrospective, in its action. Richardson v. Cook, 37 Vt. 599, 1865 Vt. LEXIS 36 (1865).

Town auditor’s report.

Report of town auditors to the annual town meeting, stating that certain town order was outstanding and unpaid, was not a sufficient acknowledgment as against the town, although auditor’s report was adopted by it. Prescott v. Town of Vershire, 63 Vt. 517, 22 A. 655, 1891 Vt. LEXIS 145 (1891).

Waiver.

Verbal promise made within six years to pay a debt otherwise barred by statute of limitations was effectual to remove statute bar, if evidence of such verbal promise was not objected to by defendant. Ray v. Rood, 62 Vt. 293, 19 A. 226, 1890 Vt. LEXIS 118 (1890).

In replication to plea of statute wherein was set forth defendant’s promise to waive said statute, it was not necessary to allege that promise was in writing. Green v. Seymour, 59 Vt. 459, 12 A. 206, 1887 Vt. LEXIS 175 (1887).

§ 592. Indorsement or memorandum of payment.

This chapter shall not alter or take away the effect of the payment of any principal or interest; but an indorsement or memorandum of such payment made upon a promissory note, bill of exchange, or other writing, unless in the handwriting of the party making the payment, shall not be proof of the payment sufficient to take the cause out of the provisions of this chapter.

History

Source.

V.S. 1947, § 1708. P.L. § 1667. G.L. § 1868. P.S. § 1568. V.S. § 1216. R.L. § 975. G.S. 63, § 27. R.S. 58, § 26.

ANNOTATIONS

Mortgage debt.

Payment by mortgagor within fifteen years prevented running of statute as to entire premises, notwithstanding mortgagor, to knowledge of mortgagee, had conveyed a portion of same to a third party, who had been in the exclusive occupancy thereof for more than fifteen years, without making any payment upon or otherwise recognizing mortgage debt. Kendall v. Tracy, 64 Vt. 522, 24 A. 1118, 1892 Vt. LEXIS 81 (1892).

Payment of interest or part of principal of mortgage debt by one of several parties who were interested in an equity of redemption, and who had constructive notice, repelled presumption that mortgage had been paid, and took case out of operation of statute of limitations, not only as to payer, but as to all owners of equity. Hollister v. York, 59 Vt. 1, 9 A. 2, 1886 Vt. LEXIS 28 (1886).

The payment of interest on mortgage debt, by mortgagor, or of any portion of principal, would be sufficient to repel presumption of payment and take case out of operation of statute. Martin v. Bowker, 19 Vt. 526, 1847 Vt. LEXIS 72 (1847).

—Generally.

Mere fact that note bears an indorsement of payment thereon, without any evidence tending to show to whom, or by whom, the payment was made, or who wrote indorsement, is not sufficient to prevent running of the statute of limitations. Crahan v. Chittenden, 82 Vt. 410, 74 A. 86, 1909 Vt. LEXIS 306 (1909); Cleveland v. Dinsmore, 59 Vt. 436, 8 A. 279, 1887 Vt. LEXIS 107 (1887).

Indorsement on promissory note, “Paid on this note, March 11, 1882, ten dollars,” signed by maker, was sufficient written acknowledgment to interrupt running of statute, although no payment was in fact made. Gay's Est. v. Hassom, 64 Vt. 495, 24 A. 715, 1892 Vt. LEXIS 77 (1892).

Indorsement upon note, though not in handwriting of payor, was some, but not sufficient evidence of payment, and could be weighed in determining whether payment in fact had been made. Lawrence v. Graves' Est., 60 Vt. 657, 15 A. 342, 1888 Vt. LEXIS 197 (1888); Bailey v. Danforth, 53 Vt. 504, 1881 Vt. LEXIS 35 (1881).

Language used in this section implies that such indorsement may be weighed in determining whether payment has been made on note, though not of itself sufficient to establish payment. Bailey v. Danforth, 53 Vt. 504, 1881 Vt. LEXIS 35 (1881)(1881).

It is intended thereby to cut off establishment of payment from indorsement alone, unless proved to be made in handwriting of party making payment. Bailey v. Danforth, 53 Vt. 504, 1881 Vt. LEXIS 35 (1881)(1881).

Its weight, as evidence, depends upon fact, whether it was made long before, or after, statute had run on note; whether for, or against, interest of owner of note, to have made it. Bailey v. Danforth, 53 Vt. 504, 1881 Vt. LEXIS 35 (1881)(1881).

Payee.

Indorsements in handwriting of payee without direction, authority, or knowledge of defendant, made as representing items of credit owing by payee to defendant as of dates of such indorsements, where there was unsettled book account between parties as well as another note not in issue and not affected by statute, were not sufficient proof of payment to toll statute. Putnam v. Swain, 102 Vt. 90, 146 A. 6, 1929 Vt. LEXIS 148 (1929).

On issue whether certain payment had been made within statutory period, original note having been stolen, admission of copy of note and indorsements thereon made by payee was proper when received not as independent evidence but rather as memorandum in connection with payee’s testimony respecting payment, statute not excluding such use of an indorsement or memorandum of payment. Bennett v. Delphia, 98 Vt. 492, 129 A. 234, 1925 Vt. LEXIS 155 (1925).

An indorsement on a note, in handwriting of the payee, is some evidence of such payment, though made after statute has run. McDowell v. McDowell's Est., 75 Vt. 401, 56 A. 98, 1903 Vt. LEXIS 148 (1903).

Payment generally.

Voluntary part payment of debt, whether barred by statute or not, if made without protestation of further liability, is recognition of such debt by debtor, from which law not only implies an admission of balance as a subsisting debt, but also promise to pay it which prevents operation of statute. Putnam v. Swain, 102 Vt. 90, 146 A. 6, 1929 Vt. LEXIS 148 (1929); Fletcher v. Brainerd, 75 Vt. 300, 55 A. 608, 1903 Vt. LEXIS 133 (1903); Corliss v. Grow, 58 Vt. 702, 2 A. 388, 1884 Vt. LEXIS 1 (1884).

Payment that will operate to revive a debt barred by statute of limitations must be a voluntary one and made with the intent that it should be applied upon such debt. Austin v. McClure, 60 Vt. 453, 15 A. 161, 1888 Vt. LEXIS 169 (1888).

Payment made by assignee under order of court in proceeding in insolvency would not interrupt the running of the statute of limitations, although United States bankrupt act was in force at time. Benton v. Holland, 58 Vt. 533, 3 A. 322, 1886 Vt. LEXIS 56 (1886).

When surety paid money, which he had received in presence of payee from principal on note, it was question of intent, in its effect on statute of limitations, whether he paid it as agent of principal, or for himself, and if it was understanding of all parties that surety was acting for himself, it was payment by him, and removed statute bar as to him. Green v. Morris, 58 Vt. 35, 4 A. 561, 1886 Vt. LEXIS 88 (1886).

—Generally.

When debtor makes payment to one who holds several demands against him without specifying on which debt it is to be applied, creditor may generally apply it on whichever he chooses. Putnam v. Swain, 102 Vt. 90, 146 A. 6, 1929 Vt. LEXIS 148 (1929); McDowell v. McDowell's Est., 75 Vt. 401, 56 A. 98, 1903 Vt. LEXIS 148 (1903).

Where debtor furnished to one or two partners an article for his own use, which was credited upon partnership debt by the other partner at direction of first, given in presence of debtor and without objection on his part, it would operate as payment upon partnership indebtedness within statute of limitations. Cuthbertson v. Hill, 65 Vt. 573, 27 A. 71, 1893 Vt. LEXIS 95 (1893).

Payments not made upon general account, but to apply upon specific items, do not prevent operation of statute of limitations. Hicks' Est. v. Blanchard, 60 Vt. 673, 15 A. 401, 1888 Vt. LEXIS 200 (1888); Harris v. Howard, 56 Vt. 695, 1884 Vt. LEXIS 121 (1884).

Where one owed another an individual and a partnership account, and made general payments, without any application, without protestation against further liability, and payments amounted to more than individual account, law upon principles of equity would apply balance on partnership account, which would remove bar of statute of limitations, although creditor, without definite knowledge of standing of two accounts, gave debtor credit for all payments on his individual account. Robie v. Briggs, 59 Vt. 443, 9 A. 593, 1887 Vt. LEXIS 127 (1887).

§ 593. Joint promisors—Promise or payment by one.

When there are two or more joint contractors, or joint executors, or administrators of a contractor, such joint contractor, executor, or administrator shall not lose the benefit of the provisions of this chapter, so as to be chargeable by reason of an acknowledgment, promise, or payment made or signed by any other of them.

History

Source.

V.S. 1947, § 1709. P.L. § 1668. G.L. § 1869. P.S. § 1569. V.S. § 1217. R.L. § 976. G.S. 63, §§ 23, 28. R.S. 58, §§ 23, 27.

ANNOTATIONS

Common law.

This section changed common law rule and is limitation of common law right of one joint contractor to act as agent of other joint contractors in making payment on common debt so as to postpone running of statute of limitations as to them all. Bailey v. Corliss, 51 Vt. 366 (1879); Carlton v. Ludlow Woolen Mill, 27 Vt. 496 (1855), same case 28 Vt. 504.

Construction.

This section refers to parties who have incurred personal liability, and has no reference to a right of entry upon real estate. Fowler v. Barlow, 102 Vt. 99, 146 A. 77, 1929 Vt. LEXIS 150 (1929).

—Generally.

Where assumpsit against one of three makers of joint and several promissory note, it appeared that defendant paid plaintiff thereon $ 50 that another of makers had sent to him with a request that he so pay it, and that defendant told plaintiff when he paid it whom it was from, and request with which he received it, payment was in legal effect payment by him who sent the money to defendant, and not such payment as would remove bar of statute as to defendant. Bailey v. Corliss, 51 Vt. 366, 1879 Vt. LEXIS 92 (1879).

Partnership debt and funds.

Payment by one of several makers of joint and several promissory note who were in fact partners when they signed note, will take it out of statute of limitations as to others, if note be a partnership debt, and payment made out of partnership funds. Mix v. Shattuck, 50 Vt. 421 (1878); Carlton v. Mill, 28 Vt. 504 (1856), same case 27 Vt. 496.

Payments made by treasurer of partnership from partnership funds, and by him indorsed on partnership note took note out of statute of limitations, in absence of any showing that he acted without authority and without duty. Walker v. Wait, 50 Vt. 668, 1878 Vt. LEXIS 33 (1878).

Sureties.

Where defendants executed mortgage to secure payment of note executed by others to whom consideration was paid, payments upon note, whether of principal or interest, by makers, without participation of sureties, while serving to keep note alive as against former, would not affect running of time as against latter. Fowler v. Barlow, 102 Vt. 99, 146 A. 77, 1929 Vt. LEXIS 150 (1929).

§ 594. Recovery where action not barred as to all.

In actions against two or more joint contractors, or joint executors or administrators of a contractor, if it appears on the trial that the plaintiff is barred by the provisions of this chapter as to any of the defendants, but is entitled to recover against any other of them by virtue of a new acknowledgment or promise, or otherwise, judgment shall be given for the plaintiff as to any of the defendants against whom he or she is entitled to recover, and for the other defendant or defendants against the plaintiff.

History

Source.

V.S. 1947, § 1710. P.L. § 1669. G.L. § 1870. P.S. § 1570. V.S. § 1218. R.L. § 977. G.S. 63, § 24. R.S. 58, § 24.

§ 595. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 595. Former § 595 related to joint promisors, nonjoinder of party for whom statute has run and was derived from V.S. 1947, § 1711; P.L. § 1670; G.L. § 1871; P.S. § 1571; V.S. § 1219; R.L. § 978; G.S. 63, § 26; R.S. 58, § 25.

For present provisions relating to joinder of persons needed for just adjudication, see V.R.C.P. 19.

Chapter 25. Process

Subchapter 1. Process Generally

§§ 651-653. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 651-653. Former §§ 651-653 related to ordinary mode of process, judicial writs and attachment or capias respectively.

Former § 651 was derived from V.S. 1947, § 1522; P.L. § 1486; G.L. § 1701; P.S. § 1410; V.S. § 1060; R.L. § 841; G.S. 33, § 1; R.S. 28, § 1; R. 1797, p. 83, § 24; R. 1787, p. 26.

Former § 652 was derived from V.S. 1947, § 1523; P.L. § 1487; G.L. § 1702; P.S. § 1411; V.S. § 1061; R.L. § 842; G.S. 33, § 23; R.S. 28, § 21; 1821, p. 79.

Former § 653 was derived from V.S. 1947, § 1524; P.L. § 1488; G.L. § 1703; P.S. § 1412; V.S. § 1062; R.L. § 843; G.S. 33, § 2; R.S. 28, § 2; R. 1797, p. 84, § 25; R. 1787, p. 26.

For present provisions see V.R.C.P. 3, 4, 4.1, 4.3, 60(b) and 81(b).

§ 654. Signing of original writs.

  1. [Repealed.]
  2. The signing of original writs is a ministerial act and may be done in advance of issuance. The signature of an attorney, except when he or she is the plaintiff, to a writ, pleading, notice of appeal, or other form, constitutes and shall be deemed security, by way of recognizance, for the issuance of such writ or the filing of such pleading, notice of appeal, or other form, and such attorney shall be liable to each defendant in the sum of $50.00 for writs returnable to a Superior Court.

HISTORY: Amended 1959, No. 261 , § 5; 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972; 1973, No. 249 (Adj. Sess.), § 15, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 69.

History

Source.

V.S. 1947, § 1525. P.L. § 1489. G.L. § 1704. 1915, No. 1 , § 62. 1915, No. 91 , § 13. P.S. § 1413. 1906, No. 63 , § 34. V.S. § 1063. 1888, No. 51 . R.L. § 844. 1867, No. 10 , § 1. G.S. 33, § 3. R.S. 28, § 3. 1836, No. 5 . 1821, p. 75. 1820, p. 10, § 1. R. 1797, p. 83, § 24. R. 1787, p. 26.

Amendments

—2009 (Adj. Sess.) Subsec. (b): Inserted “or she” following “he” and deleted “in the sum of $10.00 for writs returnable before the district court and” following “each defendant”.

—1973 (Adj. Sess.) Reference to “county court” was changed to “superior court”.

Omitted reference to justice of the peace.

—1971 (Adj. Sess.). Subsec. (a): Repealed and now covered by V.R.C.P. 4(b).

—1959. Section amended generally.

ANNOTATIONS

Interest.

Clerk of county court could sign writ returnable to that court in case where he was stockholder in corporation which was party to the suit. Insurance Co. v. Cummings, 11 Vt. 503, 1839 Vt. LEXIS 113 (1839).

Fact that writ returnable to county court was signed by justice of peace, who was interested in event of suit, was no ground of abatement. Graham v. Todd, 9 Vt. 166, 1837 Vt. LEXIS 15 (1837).

Justice of county.

“Justice of the county,” one of officials authorized to sign writs returnable to municipal court, is justice of peace for county wherein writ is returnable. Anderson v. Souliere, 103 Vt. 10, 151 A. 509, 1930 Vt. LEXIS 105 (1930).

Signature by attorney.

The signing of a writ by the attorney for the plaintiff is not a judicial act. Harrington v. Gaye, 124 Vt. 164, 200 A.2d 262, 1964 Vt. LEXIS 76 (1964).

Sufficiency of signature.

Where process is signed by one who has full authority to set legal procedure in motion and defendant is furnished all security for cost of prosecution to which he is entitled, mistaken identification of signer did not divest him of authority nor deprive process of legal effect. Jones v. Lavanway, 123 Vt. 284, 187 A.2d 346, 1963 Vt. LEXIS 115 (1963).

Signature of authority issuing writ merely to minute of recognizance at foot of writ was not sufficient signature of writ. Andrus v. Carroll, 35 Vt. 102, 1862 Vt. LEXIS 7 (1862).

—Generally.

Provision that writs returnable in municipal court may be signed by certain specified officers, means that writs must be so signed. Anderson v. Souliere, 103 Vt. 10, 151 A. 509, 1930 Vt. LEXIS 105 (1930).

Sunday acts.

The issuance of a summons is a ministerial, rather than a judicial act, and not invalidated by reason of the fact that it is issued on Sunday. Harrington v. Gaye, 124 Vt. 164, 200 A.2d 262, 1964 Vt. LEXIS 76 (1964).

The signing of a writ is a ministerial act and such act on a Sunday is lawful. Harrington v. Gaye, 124 Vt. 164, 200 A.2d 262, 1964 Vt. LEXIS 76 (1964).

§§ 655-658. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 655-658. Former §§ 655-658 related to signing of writs, contents, voidable process, recognizances, writs run throughout the State, respectively.

Former § 655 was derived from V.S. 1947, § 1526; P.L. § 1490; G.L. § 1705; 1915, No. 1 , § 63; P.S. § 1414; V.S. § 1064; R.L. § 845; G.S. 33, § 4; R.S. 28, § 4; R. 1797, p. 83, § 24; R. 1787, p. 26.

Former § 656 was derived from V.S. 1947, § 1527; P.L. § 1491; G.L. § 1706; P.S. § 1415; 1898, No. 137 , § 4; V.S. § 1065; R.L. § 846; G.S. 33, § 9; R.S. 28, § 9; R. 1797, p. 83, § 24; R. 1787, p. 26.

Former § 656a was derived from 1959, No. 261 , § 13.

Former § 657 was derived from V.S. 1947, § 1528; P.L. § 1492; G.L. § 1707; P.S. § 1416; V.S. § 1066; R.L. § 847; G.S. 33, § 5; R.S. 28, § 5; 1822, p. 13; 1818, p. 75; R. 1797, p. 95, §§ 44, 45; R. 1787, p. 146, and amended by 1959, No. 261 , § 6.

Former § 658 was derived from V.S. 1947, § 1529; P.L. § 1493; G.L. § 1708; P.S. § 1417; V.S. § 1067; R.L. § 848; G.S. 33, § 6; R.S. 28, § 6; R. 1797, p. 83, § 24; R. 1787, p. 26.

For present provisions see V.R.C.P. 3, 4(b), (d), (h), (j), 8(a) and 45(e).

§ 659. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 659. Former § 659, relating to justices and issuance of process, was derived from V.S. 1947, § 1476; P.L. § 1442; G.L. § 1662; 1908, No. 62 ; P.S. § 1394; V.S. § 1044; R.L. § 825; G.S. 31, § 26; R.S. 26, § 61; R. 1797, p. 418, § 9; 1789, p. 10; R. 1787, p. 84 and was amended by 1971, No. 185 (Adj. Sess.), § 35, eff. March 29, 1972.

§ 660. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 660. Former § 660, relating to process of district court, was derived from V.S. 1947, § 1443; P.L. § 1409; 1933, No. 32 , §§ 9, 10; 1921, No. 68 ; G.L. § 1644; 1915, No. 91 , §§ 4, 11, 13. Prior to repeal former § 660 was amended by 1959, No. 261 , § 7; 1965, No. 194 , § 10.

§ 661. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 661. Former § 661, relating to signing of process by justices, was derived from V.S. 1947, § 1492; P.L. § 1458; G.L. § 1679; P.S. § 1634; V.S. § 1283; R.L. § 1046; G.S. 31, § 29; R.S. 26, §§ 11, 13; R. 1797, p. 418, § 9; 1789, p. 10 and amended by 1959, No. 261 § 8; 1971, No. 185 (Adj. Sess.), § 36.

§ 662. Signing citations attached to highway petitions.

Superior judges may sign citations returnable to the Superior Court in the county in which they reside, which are attached to petitions relative to highways.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 10, 1965, operative Feb. 1, 1967; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 249 (Adj. Sess.), § 16, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1474. P.L. § 1440. G.L. § 1660. 1908, No. 62 . P.S. § 1392. V.S. § 1042. R.L. § 823. G.S. 31, § 17. 1860, No. 14 , § 1.

Revision note

—2017. Replaced “District” with “Superior” pursuant to 2009, No. 154 (Adj. Sess.), § 236.

Revision note—. Reference to “County Court” was changed to “Superior Court” pursuant to 1973, No. 193 (Adj. Sess.), § 3. See note set out under 4 V.S.A. § 71 .

Amendments

—1973 (Adj. Sess.). Omitted the words “Justices and” preceding “District judges”.

—1965. Substituted “district judges” for “municipal judges”.

Subchapter 2. Service by Sheriffs and Constables

§ 691. Service of civil or criminal process.

  1. Sheriffs and constables may serve either civil or criminal process, anywhere within the State and returnable to any court.
  2. Sheriffs and constables shall not be subject to civil or criminal liability for unlawful trespass in serving either civil or criminal process, including citations, summons, subpoenas, warrants, and other court orders, provided the scope of their entrance onto the property of another is no more than necessary to effectuate the service of process.

HISTORY: Amended 2013, No. 49 , § 2.

History

Source.

V.S. 1947, § 1530. P.L. § 1494. G.L. § 1709. P.S. § 1418. 1902, No. 40 , § 1. V.S. § 1068. R.L. § 849. 1872, No. 62 . G.S. 12, § 28. 1854, No. 17 . 1846, No. 38 . R. 1797, p. 134, § 2. R. 1787, p. 139.

Amendments

—2013. Added subsec. (a) designation and added subsec. (b).

ANNOTATIONS

Cited.

Cited in State v. Hart, 149 Vt. 104, 539 A.2d 551, 1987 Vt. LEXIS 590 (1987); Huminski v. Rutland County Sheriff's Department, 211 F. Supp. 2d 520, 2002 U.S. Dist. LEXIS 14415 (D. Vt. 2002).

§ 692. Deputy sheriffs.

Deputy sheriffs shall have the same powers and be subject to the same liabilities in the service of process as sheriffs, whether the process is directed to the sheriff or the deputy. If a sheriff is confined in prison upon legal process, his or her deputies may serve precepts in their hands at the time and such as they receive within three days thereafter.

History

Source.

V.S. 1947, § 1531. P.L. § 1495. G.L. § 1710. P.S. § 1419. V.S. § 1069. R.L. § 850. G.S. 12, §§ 6, 32. R.S. 11, §§ 6, 31. 1806, p. 139, § 3. R. 1797, p. 134, § 2.

CROSS REFERENCES

Imprisonment of sheriff, see 24 V.S.A. § 294 .

ANNOTATIONS

Service on sheriff.

Though service of writ on sheriff by one of his deputies was irregular, yet such irregularity could only be taken advantage of by plea in abatement, and it did not justify sheriff in resisting service. Shaw v. Baldwin, 33 Vt. 447, 1860 Vt. LEXIS 120 (1860).

§ 693. Constables.

In the service of process, constables shall have the same powers and be subject to the same liabilities and penalties as sheriffs.

History

Source.

V.S. 1947, § 1532. P.L. § 1496. G.L. § 1711. P.S. § 1420. V.S. § 1072. R.L. § 853. G.S. 15, § 79. R.S. 13, § 60. R. 1797, p. 139, § 9. R. 1787, p. 139.

ANNOTATIONS

Defenses.

In action against constable for neglect to return execution against sheriff, instructions of plaintiff’s attorney to constable were within his authority as attorney to give, and were sufficient to exonerate constable from liability for not returning the execution. Willard v. Goodrich, 31 Vt. 597, 1859 Vt. LEXIS 28 (1859).

Levy.

Where a judgment creditor informs the levying officer of existence and location of assets known to the creditor and gives the officer no further instructions, the officer must levy upon those assets or upon others; but where creditor gives officer specific instructions as to manner of levy and items to be seized, the officer must follow those directions when they are not in conflict with the law, and he is not bound to serve the writ in any other manner and ceases to be a public officer and becomes a private agent. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Where law enforcement officer received writ of execution and letter stating writ should be served at named person’s restaurant and if he refused to pay the writ should be satisfied from the receipts in the cash register of the restaurant, the officer had only a duty to levy pursuant to the letter and court trying action against officer for failure and refusal to satisfy the writ erroneously found that officer had duty to levy against such goods, chattels and lands of debtor as he could find or levy upon the cash in the cash register. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Where plaintiff instructed defendant constable to levy against cash register receipts should person against whom execution was directed refuse to pay, plaintiff was not, in action claiming constable refused and failed to levy, entitled to mandamus commanding constable to levy against the goods, chattels and lands of the person named in the execution, or against cash register receipts, as plaintiff had limited the duty of constable by limiting the levy instructions. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Where person granted writ of execution gives constable the writ and specific instructions concerning the levy and what to levy upon, person granted the writ has the burden of proving constable was not influenced by the instructions where he claims failure or refusal to levy, and absent such a showing the constable is fully exonerated unless dereliction in performance of duty imposed by the limiting instructions is shown. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Where plaintiff claiming failure and refusal to levy execution directed a levy upon cash register receipts should person levied against fail to pay, and in action against constable plaintiff failed to show there existed money in the cash register which belonged to person named in the writ and which could be levied against, constable could not be found in breach of his duty and mandamus would not be issued ordering him to serve the execution, nor was plaintiff entitled to damages. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Mandamus.

Where mandamus mandated that sheriff “and/or” constable serve writ of execution it was not specifically mandated, but directed to two persons in the alternative, and was not a clear order to a specific person and was in error. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Pleading and proof.

Where, in action against constable for neglecting and refusing to serve writ placed in his hands for service, proof was that plaintiff’s attorney went to defendant and “handed out” writ, saying he wanted it served immediately, but that defendant did not take it, but said he had other business to attend to, and could not serve it then, gravamen of declaration was defendant’s refusal to perform his duty by serving writ, and there was therefore no variance. Patten v. Sowles, 51 Vt. 388, 1878 Vt. LEXIS 168 (1878).

—Generally.

When constable, having writ of attachment for service, took receipt for attachable personal property in possession of debtor, it constituted sufficient attachment of property to hold receiptor, and if constable neglected to make proper return of attachment upon writ, he was liable in an action on the case for neglect. Howes v. Spicer, 23 Vt. 508, 1851 Vt. LEXIS 59 (1851).

Where constable, not being misled by any instructions from plaintiff or his attorney, represented to plaintiff that he had made valid attachment, and thereby induced plaintiff to rely upon it and forego making any further attachment, constable was bound by such representation and was estopped from showing that in fact he made no legal attachment. Howes v. Spicer, 23 Vt. 508, 1851 Vt. LEXIS 59 (1851).

Liability of constable was not affected by fact that creditor refused to receive receipt taken by the constable, and prosecute it at his own risk. Howes v. Spicer, 23 Vt. 508, 1851 Vt. LEXIS 59 (1851).

Cited.

Cited in State v. Hart, 149 Vt. 104, 539 A.2d 551, 1987 Vt. LEXIS 590 (1987).

§ 694. Disqualifications.

  1. An officer shall not serve a writ drawn on a note originally payable to himself or herself and sued in the name of an indorsee, nor where he or she, or a private corporation of which he or she is a member, is a party or interested.
  2. Such officer shall not be disqualified from serving process for or against a town or county by reason of being a taxpayer therein nor for or against a railroad corporation by reason of being a taxpayer in a town owning stock in such corporation, nor for or against a savings bank or savings institution by reason of being a corporator or officer thereof.

History

Source.

V.S. 1947, § 1533. P.L. § 1497. G.L. § 1712. P.S. § 1421. 1898, No. 39 , § 1. V.S. § 1073. R.L. § 854. 1876, No. 27 . 1867, No. 15 . G.S. 12, § 27. G.S. 85, § 6. 1850, No. 21 . R.S. 11, §§ 27, 40. 1807, p. 112.

Revision note—

Undesignated paragraphs are designated as subsecs. (a) and (b) to conform to V.S.A. style.

CROSS REFERENCES

Disqualification to appear as counsel or make a writ, etc., see 24 V.S.A. § 305 .

Suits for delinquent taxes, service of process, see 32 V.S.A. §§ 5221-5227 .

ANNOTATIONS

Construction.

Term “writ,” as used in this section, includes writ of execution, as well as writ of attachment. Bank of Rutland v. Parsons, 21 Vt. 199, 1849 Vt. LEXIS 18 (1849).

Guardian of plaintiff.

Officer had no authority to complete service of writ after he was appointed guardian of plaintiff in writ, although he had commenced service before his appointment; nor could another officer complete such service by making different attachment; and defect was not waived by defendant’s appearing and pleading to merits. Clark v. Patterson, 58 Vt. 676, 5 A. 564, 1886 Vt. LEXIS 124 (1886).

§ 695. Receipt for process.

A person may demand a receipt of an officer to whom he or she delivers a writ or precept, in which the sum or thing in demand, the date of such writ or precept and of its delivery, shall be stated. On the refusal of such officer to execute such receipt, a person present may subscribe his or her name as a witness to such delivery.

History

Source.

V.S. 1947, § 1534. P.L. § 1498. G.L. § 1713. P.S. § 1422. V.S. § 1074. R.L. § 855. G.S. 12, § 19. R.S. 11, § 19. R. 1797, p. 139, § 10. R. 1787, p. 140.

§ 696. Sheriffs’ duties to receive, execute, and return writs.

Sheriffs shall receive all writs and precepts issuing from lawful authority at any time and place within their respective precincts, unless they can show reasonable cause to the contrary, and shall execute and return the same agreeably to the direction thereof.

History

Source.

V.S. 1947, § 1535. P.L. § 1499. G.L. § 1714. P.S. § 1423. V.S. § 1075. R.L. § 856. G.S. 12, § 20. R.S. 11, § 20. R. 1797, p. 139, § 10. R. 1787, p. 140.

CROSS REFERENCES

Duty to serve and execute writs, etc., see 24 V.S.A. § 293 .

ANNOTATIONS

Liability for false imprisonment.

If process conforms in kind to that which the court has jurisdiction to issue, officer’s liability for false imprisonment depends on whether there is a defect discoverable by an examination of the process itself; process which is not absolutely void on its face provides sufficient justification for the officer who serves it; if there is a defect apparent on its face which renders the process void, the officer is liable for an arrest made pursuant to such process. Horton v. Chamberlain, 152 Vt. 351, 566 A.2d 953, 1989 Vt. LEXIS 182 (1989).

Service.

When no special instructions as to service of writ or execution are given, it is duty of officer to serve writ according to its precept. Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937); Hill v. Pratt, 29 Vt. 119, 1856 Vt. LEXIS 152 (1856).

It is his duty to attach property of debtor if any can be found by exercise of reasonable diligence, respecting ownership of which there is no reasonable doubt. Hill v. Pratt, 29 Vt. 119, 1856 Vt. LEXIS 152 (1856).

Agreement by officer to serve a writ for less than legal fees would not vary his duty in this respect, and in an action against him for neglecting to attach property, testimony showing such an agreement was inadmissible. Hill v. Pratt, 29 Vt. 119, 1856 Vt. LEXIS 152 (1856).

Sheriff cannot excuse himself from service of process because it is erroneous or irregular, but only when it is absolutely void. Stoddard v. Tarbell, 20 Vt. 321, 1848 Vt. LEXIS 39 (1848).

Writ which has once been legally served, and which has then been altered by inserting different date and return day without the consent of defendant therein was not thereby rendered void, so as to excuse officer who served it originally from again making service of it, when delivered to him for that purpose subsequent to alteration. Stoddard v. Tarbell, 20 Vt. 321, 1848 Vt. LEXIS 39 (1848).

An execution issued on judgment, after year and day, was not void, but voidable, merely, and sheriff was bound to execute it, and in an action against him for an escape, irregularity was no defense. Fletcher v. Mott, 1 Aik. 339 (Vt. 1826).

—Generally.

To make “return according to law” is not only to return precept to authority that issued it, but also to return with it statement by officer of his doings in executing it, and that statement must recite substantially all of his doings within scope of proper execution of the process, and must show that he has faithfully obeyed every lawful command of process and of statute, otherwise return will be “undue,” and insufficient for his protection. Gibson v. Holmes, 78 Vt. 110, 62 A. 11, 1905 Vt. LEXIS 90 (1905).

Return of an officer on justice writ issued as capias: “I served this writ by arresting the body of the within named defendant, Burt Gibson, read the same in his hearing and this my return endorsed hereon,” was insufficient, because it did not show how defendant was disposed of after arrest. Gibson v. Holmes, 78 Vt. 110, 62 A. 11, 1905 Vt. LEXIS 90 (1905).

Special directions.

Party at whose instance writ or execution has issued, or his attorney, has right to give officer directions as to how it shall be executed, and officer is bound to follow such directions when not in conflict with law. Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937).

When party assumes to give special instructions to officer in regard to execution of process in his hands, different from his legal duty, officer ceases to be public officer, as to business so entrusted to him, and becomes private agent. Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937).

When party does not direct or control course of officer to whom writ or execution is given, nor ratify his acts, he is not liable for any wrong committed by officer. Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937).

When creditor in committing an execution to an officer, for collection, gives written instructions, and, on trial of an action against officer for neglect in collecting same, instructions are relied upon by way of defense, it is duty of court to direct jury in regard to legal effect of such instructions. Strongs v. Bradley, 14 Vt. 55 (1842), same case 13 Vt. 9.

If such instructions would in any sense qualify conduct of officer, his acts must be referred to them, unless it be shown by positive proof that he was not influenced thereby. Strongs v. Bradley, 14 Vt. 55 (1842), same case 13 Vt. 9.

Time.

Time when an execution is returned into office of clerk of the court from which it issued was one of the things required to be shown by return itself. Yatter v. Pitkin, 72 Vt. 255, 47 A. 787 (1900), same case 66 Vt. 300, 29 A. 370.

Writ of execution could be executed on day on which it was returnable, and where body of debtor was committed to prison, it was not necessary that execution should be returned to proper office within its life, and no action on the case could be sustained by reason of its not being so returned. Fletchers v. Bradley, 12 Vt. 22, 1840 Vt. LEXIS 4 (1840).

Law Reviews —

Post-judgment executions in Vermont and sheriffs’ liability, see 2 Vt. L. Rev. 117 (1977).

§ 697. Sheriffs’ liabilities.

A sheriff who willfully refuses or neglects to serve or return such writ or precept, or who makes a false or undue return, shall be fined not more than $100.00 with costs and shall pay to the party aggrieved damages sustained thereby.

History

Source.

V.S. 1947, § 1536. P.L. § 1500. G.L. § 1715. P.S. § 1424. V.S. § 1076. R.L. § 857. G.S. 12, § 21. R.S. 11, § 21. R. 1797, p. 139, § 10. R. 1787, p. 140.

CROSS REFERENCES

Liability for misfeasance or neglect of deputy, see 24 V.S.A. § 304 .

ANNOTATIONS

Deputy sheriff.

Provisions of this section apply to deputy sheriff. Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937).

False return.

Plaintiff could maintain action on case for false return where return, headed with name of this State and one of its counties, stated that copy of a petition of foreclosure was left with plaintiff, one of defendants in process, and no place was specified where such process was left with plaintiff, but in fact it was delivered to him by defendant, in state of New Hampshire, and plaintiff did not appear in cause, and decree of foreclosure was taken against him, without any continuance of cause, and short time fixed for redemption, upon expiration of which without payment, tenant of plaintiff, then in possession of premises, was ousted by virtue of decree. Davis v. Richmond, 35 Vt. 419, 1862 Vt. LEXIS 56 (1862).

Neglect.

Where plaintiff claiming failure and refusal to levy execution directed a levy upon cash register receipts should person levied against fail to pay, and in action against constable plaintiff failed to show there existed money in the cash register which belonged to person named in the writ and which could be levied against, constable could not be found in breach of his duty and mandamus would not be issued ordering him to serve the execution, nor was plaintiff entitled to damages. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Sheriff who received an execution in favor of private corporation of which he was member was not liable for neglecting to levy and return it, and it made no difference that he served original writ, in suit in which execution issued, by attaching property, and took receipt for the property and had prosecuted suit against receiptor to final judgment, which was unsatisfied by reason of insolvency of receiptor. Bank of Rutland v. Parsons, 21 Vt. 199, 1849 Vt. LEXIS 18 (1849).

§ 698. Special deputations.

  1. The sheriff may depute a proper person to serve a writ at the risk of the plaintiff in such writ by indorsing thereon a special deputation, and, when he or she deems it necessary, may depute some person to serve a warrant in a criminal cause or any other precept by indorsing a special deputation on such writ or precept.
  2. Such special deputy shall make oath to his or her service and return and that he or she did not make or alter the writ, warrant, or precept by him or her served.  He or she shall cause to be indorsed thereon a certificate of such oath. Service so made shall be as valid as if made by the sheriff.

History

Source.

V.S. 1947, §§ 1537, 1538. P.L. §§ 1501, 1502. 1919, No. 67 , § 1. G.L. §§ 1716, 1717. P.S. §§ 1425, 1426. V.S. §§ 1077, 1078. R.L. §§ 858, 859. G.S. 12, §§ 8, 9. R.S. 11, §§ 8, 9. R. 1797, p. 135, § 3. R. 1787, p. 141.

ANNOTATIONS

Attachment to process.

Deputation may be written on separate piece of paper and attached to back of process by the sheriff, or, in certain circumstances, he may authorize another to attach it for him. Cowdery v. Johnson, 60 Vt. 595, 15 A. 188, 1888 Vt. LEXIS 186 (1888).

Infant.

Infant, under age of twenty-one years, could receive special deputation from sheriff, to serve particular writ. Barrett v. Seward, 22 Vt. 176, 1850 Vt. LEXIS 8 (1850).

If such special deputy was appointed at request of plaintiff in writ, sheriff would be excused from all liability to plaintiff for acts of such deputy, but he would be liable to defendant in writ, and to third persons, same as for acts of general deputy. Barrett v. Seward, 22 Vt. 176, 1850 Vt. LEXIS 8 (1850).

§ 699. Removal or resignation of sheriff.

A sheriff removed from or resigning his or her office or at the expiration of his or her term of office may execute writs or precepts in his or her hands at the time. Service so made shall be as valid as if made by the sheriff.

History

Source.

V.S. 1947, § 1539. P.L. § 1503. 1919, No. 67 , § 2. G.L. § 1718. P.S. § 1427. V.S. § 1079. R.L. § 860. G.S. 12, § 31. R.S. 11, § 30. R. 1797, p. 142, § 14.

CROSS REFERENCES

Sheriff to serve until successor is qualified, see 24 V.S.A. § 306 .

§ 700. Completion of service of process or foreclosure of mortgage or lien.

When an officer who by law may serve process dies, becomes ill, disqualified, or incapacitated, having in his or her hands any process for service, or any chattel mortgage or conditional sale lien for foreclosure, any other officer who may by law serve such process or make such foreclosure and who has a knowledge of the facts may certify the proceedings thereon of such original officer, and make or complete such service or foreclosure, as the case may be

History

Source.

V.S. 1947, § 1540. P.L. § 1504. 1933, No. 33 , § 1. G.L. § 1719. P.S. § 1428. V.S. § 1080. R.L. § 861. 1867, No. 50 .

§ 701. Summons.

  1. Any law enforcement officer authorized to serve criminal process or a State’s Attorney may summon a person who commits an offense to appear before Superior Court by a summons in such form as prescribed by the Court Administrator, stating the time when, and the place where, the person shall appear, signed by the enforcement officer or State’s Attorney and delivered to the person.
  2. When an individual accepts a precharge services contract, the State’s Attorney may issue a new citation ordering the individual to court in the event the individual fails to comply with the terms of the contract. The pretrial monitor may provide the citation to the individual at the time the individual accepts the precharge contract. This shall be considered effective service.
  3. A person so summoned shall appear at the time and place stated in the summons delivered to him or her. A person who does not so appear shall be fined not more than $100.00 or be imprisoned not more than 90 days, or both.
  4. [Repealed.]

HISTORY: Added 1971, No. 228 (Adj. Sess.), § 29, eff. July 1, 1972; amended 1971, No. 258 (Adj. Sess.), § 17, eff. July 1, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2015, No. 12 , § 3, eff. May 1, 2015; 2018, No. 8 (Sp. Sess.), § 4, eff. June 28, 2018.

History

References in text.

Section 2201 of Title 23 was repealed by 2015, No. 47 , § 38.

Revision note

—2017. Subsec. (a): Deleted “a District or” pursuant to 2009, No. 154 (Adj. Sess.), § 236.

Amendments

—2018 (Sp. Sess.) Subsec. (d): Repealed.

—2015. Added new subsec. (b); redesignated former subsecs. (b) and (c) as present subsecs. (c) and (d); made a gender neutral change in subsec. (c) and a stylistic change in subsec. (d).

—1973 (Adj. Sess.). Subsec. (a): Substituted “Superior” for “County” preceding “Court”.

—1971 (Adj. Sess.). Subsec. (c): Added.

Subchapter 3. Service by Authorized Persons

§ 731. Indifferent person, appointment of.

When a summons, writ, or other process is not specially required by law to be served by an officer, any Superior judge, or any judge of the court to which the process is returnable, may appoint an indifferent person to serve the process if it appears that service by that person will be more economical or efficient than service by an officer.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 37, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1541. P.L. § 1505. G.L. § 1721. P.S. § 1430. V.S. § 1082. R.S. § 862. 1878, No. 38 , § 2. 1869, No. 41 . G.S. 31, § 35. G.S. 33, § 7. R.S. 26, § 22. R.S. 28, § 7. R. 1797, p. 83, § 24. R. 1797, p. 419, § 11. 1789, p. 10. R. 1787, pp. 26, 85.

Revision note

—2017. Deleted “or District” pursuant to 2009, No. 154 (Adj. Sess.), § 236.

Amendments

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Blank appointment.

Appointment on blank writ was void, and those acting under it were trespassers. Ross v. Fuller, 12 Vt. 265, 1839 Vt. LEXIS 150 (1839); Kelly v. Paris, 10 Vt. 261, 1838 Vt. LEXIS 51 (1838).

Appointment cannot be left blank, and be filled up by plaintiff afterwards. Ex parte Kellogg, 6 Vt. 509, 1834 Vt. LEXIS 83 (1834).

Delegation or proxy.

Appointment cannot be done by delegation or proxy. Kelly v. Paris, 10 Vt. 261, 1838 Vt. LEXIS 51 (1838).

Infant.

Infant could not be specially authorized to serve writ. Vail v. Rowell, 53 Vt. 109, 1880 Vt. LEXIS 96 (1880); Harvey v. Hall, 22 Vt. 211, 1850 Vt. LEXIS 17 (1850).

—Generally.

Justice form, of authorizing one to serve writ, did not confer sufficient authority to serve county court writ. Washburn v. Hammond, 25 Vt. 648, 1853 Vt. LEXIS 104 (1853).

It was not necessary to validity of authorization of an indifferent person to serve writ returnable to county court, that it should be stated in authorization, that known public officer could not seasonably be had, to serve writ. Culver v. Balch, 23 Vt. 618, 1851 Vt. LEXIS 81 (1851).

Where justice writ directed, in body of it, to an indifferent person, named in form of deputation in county court writ, person so named would not be authorized to serve such writ. Edgerton v. Barrett, 21 Vt. 196 (1849).

Special authorization of person to serve process, indorsed on back of writ, and signed by magistrate issuing it, in these words,—“I authorize A. B. to serve and return this according to law,”—was sufficient, upon plea in abatement, as no uncertainty could exist, as to what was intended by pronoun this. Fullerton v. Briggs, 20 Vt. 542, 1848 Vt. LEXIS 75 (1848).

County court had no power to permit magistrate, who signed writ, to amend direction, after the case had been entered in court, by inserting therein statutory reasons for making the authorization, and affidavit of magistrate, that he omitted requisite matter by mistake, could have no effect. Dolbear v. Hancock, 19 Vt. 388, 1847 Vt. LEXIS 45 (1847).

Bill accompanied by ordinary subpoena, which, however, contained no direction to person delivering copy, was insufficient, and defendant was not affected by it. Bank of Burlington v. Catlin, 11 Vt. 106, 1839 Vt. LEXIS 23 (1839).

Authorization need not mention particularly all such known officers as might legally serve writ if seasonably to be had. Bell v. Chipman, 2 Tyl. 423 (Vt. Feb. 1, 1803).

Judicial act.

Appointment of an indifferent person is a judicial act, which can be exercised only by the authority signing process. St. Johnsbury v. Goodenough, 44 Vt. 662, 1871 Vt. LEXIS 111 (1871); Dolbear v. Hancock, 19 Vt. 388, 1847 Vt. LEXIS 45 (1847); Ingraham v. Leland, 19 Vt. 304, 1847 Vt. LEXIS 31 (1847); Ross v. Fuller, 12 Vt. 265, 1839 Vt. LEXIS 150 (1839).

It requires exercise of judicial discretion in adjudging that precept would fail of service for want of a proper legal officer, and in deciding upon person to serve it, hence authorization by magistrate who was counsel for one of parties would be invalid. St. Johnsbury v. Goodenough, 44 Vt. 662, 1871 Vt. LEXIS 111 (1871).

Motion to dismiss or plea in abatement.

Where total want of authority, in person who undertakes to serve a writ, to make service, appears upon face of process, defect could be taken advantage of upon motion to dismiss or plea in abatement. Howard v. Scott, 39 Vt. 163, 1866 Vt. LEXIS 75 (1866); Washburn v. Hammond, 25 Vt. 648, 1853 Vt. LEXIS 104 (1853).

Name and designation.

Writ directed “to any sheriff or constable in the State or to George Brooks,” without additional words, an indifferent person, would confer no authority upon person named to make service thereof. Brooks v. Farr, 51 Vt. 396, 1878 Vt. LEXIS 170 (1878).

Authorization inserted in direction of county court writ in these words: “To C. H. Harding, an indifferent person, to serve and return,” was sufficient. Bliss v. Smith, 42 Vt. 198, 1869 Vt. LEXIS 64 (1869).

It is necessary to insert in writ name of person and that he is an indifferent person. Culver v. Balch, 23 Vt. 618, 1851 Vt. LEXIS 81 (1851).

Where service was made by an indifferent person not named therein, defendant was not bound to notice it. Spafford v. Spafford, 16 Vt. 511, 1845 Vt. LEXIS 2 (1845); Allyn v. Davis, 10 Vt. 547, 1838 Vt. LEXIS 112 (1838).

Citation directed to any indifferent person will not give proper notice when served by an indifferent person since no person is authorized to serve process of a court unless particularly named in such process. Moffat v. Moffat, 10 Vt. 432, 1838 Vt. LEXIS 81 (1838).

Persons who may be authorized.

Writ would not abate, on ground that service was made by son-in-law of the plaintiff, under special direction given him by authority issuing the writ. Miller v. Hayes, Brayt. 21 (1817).

Removal of pauper.

An authorized person could not serve an order of removal of a pauper. Granville v. Hancock, 55 Vt. 323, 1883 Vt. LEXIS 35 (1883).

Subpoena.

Subpoena could be directed to indifferent person to serve. Smith v. Wilbur, 35 Vt. 133, 1862 Vt. LEXIS 12 (1862).

—Generally.

Authority issuing writ of execution may authorize some one specially to serve same, when it is against town. Walter v. Denison, 24 Vt. 551, 1852 Vt. LEXIS 83 (1852).

§ 732. Power of specially appointed person.

The person so appointed shall have the power of a sheriff in the service and return of the process, and he or she shall make proof of the service by affidavit.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 38, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1542. P.L. § 1506. G.L. § 1722. P.S. § 1431. V.S. § 1083. R.L. § 863. G.S. 33, § 8. R.S. 28, § 8. G.S. 31, § 36. R.S. 26, § 23. R. 1797, p. 419, § 11. 1789, p. 10. R. 1787, p. 85.

Amendments

—1971 (Adj. Sess.). Rephrased and provided for proof by affidavit.

ANNOTATIONS

Authority and duty.

Authorized person who takes and assumes to serve writ for service of which he is authorized, is pro hac vice an officer of law, and duty he is under is not one arising out of contract between himself and plaintiff. Flinn v. St. John, 51 Vt. 334, 1879 Vt. LEXIS 87 (1879).

Thus, although he be not bound to receive and serve writ, yet if he undertake it, it is his duty, although not specially so instructed, to attach property, if openly visible; and for neglect of that duty, case and not assumpsit is appropriate action. Flinn v. St. John, 51 Vt. 334, 1879 Vt. LEXIS 87 (1879).

Person specially authorized to serve process has no authority except that conferred by his deputation; he is entitled to and can claim no respect, consideration or obedience by reason of his being in public position until he makes his authority known, or until it is known to those with whom he is dealing; and until then owner of property, which authorized person is undertaking to attach and carry away, may treat him as a mere trespasser and protect it against him. Leach v. Francis, 41 Vt. 670, 1869 Vt. LEXIS 21 (1869); Burton v. Wilkinson, 18 Vt. 186, 1846 Vt. LEXIS 21 (1846).

§ 733. Fees.

When the service of any process is made for a party by a person specially appointed for that purpose, fees for the service shall not be recoverable of or taxed against the opposite party in excess of one-half of the taxable fees of a proper officer, had the process been served by that officer.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 39, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1543. P.L. § 1507. G.L. § 1723. P.S. § 1432. V.S. § 1084. R.L. § 864. 1880, No. 29 .

Amendments

—1971 (Adj. Sess.). Rephrased and substituted “any process” for “writ, subpoena or other process”.

ANNOTATIONS

Prior law.

An indifferent person serving subpoena was entitled to full fees therefor. Smith v. Wilbur, 35 Vt. 133, 1862 Vt. LEXIS 12 (1862).

§ 734. Property taken from specially appointed person by officer.

When property is attached or taken in execution by a person specially appointed, it may be taken by an officer having an attachment or execution against it from the possession of the specially appointed person or his or her receiptor, but subject to the lien created by the previous attachment or taking in execution.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 40, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1544. P.L. § 1508. G.L. § 1724. P.S. § 1433. V.S. 1085. R.L. § 865. G.S. 33, § 34. 1851, No. 11 , § 1.

Amendments

—1971 (Adj. Sess.). Rephrased and provided for person “specially appointed”.

§ 735. Delivery of writ; return; completion of service.

When property is taken as outlined in section 734 of this title, the person specially appointed shall deliver to the officer the writ of attachment or execution upon which he or she took the property, with a return of his or her action thereon, unless the writ has been returned to the attorney or court signing the writ. The officer shall complete the service thereof.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 41, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1545. P.L. § 1509. G.L. § 1725. P.S. § 1434. V.S. § 1086. R.L. § 866. G.S. 33, § 35. 1851, No. 11 , § 2.

Amendments

—1971 (Adj. Sess.). Section amended generally.

§ 736. Officer’s duties and liabilities.

When property is taken by an officer from the possession of a specially appointed person or his or her receiptor, the officer shall be subject to the duties and liabilities relating to the property and arising by virtue of the previous attachment or taking in execution and shall be responsible for the property to the plaintiff or creditor having the prior lien thereon by virtue of the attachment, as the specially appointed person or his or her receiptor would have been if the property had not been taken from his or her possession.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 42, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1546. P.L. § 1510. G.L. § 1726. P.S. § 1435. V.S. § 1087. R.L. § 867. G.S. 33, § 36. 1851, No. 11 , § 3.

Amendments

—1971 (Adj. Sess.). Rephrased and provided for person “specially appointed”.

Subchapter 4. Time for Service; Return

§§ 771-775. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 771-775. Former §§ 771-775 related to time for service.

Former § 771 was derived from V.S. 1947, § 1547; P.L. § 1511; G.L. § 1727; P.S. § 1436; V.S. § 1088; 1892, No. 28 , §§ 8, 12; R.L. § 868; G.S. 33, § 19; 1851, No. 9 ; 1850, No. 46 ; R.S. 28, § 10; R. 1797, p. 83, § 24; R. 1787, p. 26 and amended by 1969, No. 222 (Adj. Sess.), § 2.

Former § 772 was derived from V.S. 1947, § 1548; P.L. § 1512; G.L. § 1728; P.S. § 1437; V.S. § 1089; 1892, No. 28 , § 9 and amended by 1969, No. 222 (Adj. Sess.), § 3.

Former § 773 was derived from V.S. 1947, § 1549; P.L. § 1513; G.L. § 1729; P.S. § 1438; V.S. § 1090; 1894, No. 44 , § 1; 1892, No. 28 , § 10; R.L. § 1171; G.S. 30, § 43; R.S. 25, § 34; R. 1797, p. 100, § 53; R. 1787, pp. 28, 85.

Former § 774 was derived from V.S. 1947, § 1550; P.L. § 1514; G.L. § 1730; P.S. § 1439; V.S. § 1091; 1894, No. 44 , § 2.

Former § 775 was derived from V.S. 1947, § 1551; 1945, No. 29 , § 5; P.L. § 1515; G.L. § 1731; P.S. § 1440; V.S. § 1092; 1892, No. 28 , § 13.

§ 776. Repealed. 1969, No. 222 (Adj. Sess.), § 5, eff. July 1, 1970.

History

Former 776. Prior to repeal former § 776 was derived from V.S. 1947, § 1552; P.L. § 1516; G.L. § 1732; 1915, No. 91 , § 14.

§ 777. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 777. Former § 777, relating to a justice’s writ of summons or attachment, was derived from V.S. 1947, § 1553; 1945, No. 29 , § 6; P.L. § 1517; G.L. § 1733; P.S. § 1441; V.S. § 1093; R.L. § 869; G.S. 31, § 34; R.S. 26, § 12; 1829, No. 4 ; R. 1797, p. 418, § 9; 1789, p. 10 and R. 1787, p. 85.

§ 778. Repealed. 1967, No. 233 (Adj. Sess.), § 1, eff. Feb. 2, 1968.

History

Former § 778. Prior to repeal former § 778 was derived from V.S. 1947, § 1554; P.L. § 1518; G.L. § 1734; P.S. § 1442; 1896, No. 27 , § 1; V.S. § 1094; 1894, No. 41 ; 1892, No. 38 , § 1; 1884, No. 118 ; 1884, No. 121 ; R.L. § 870; G.S. 33, § 20; 1850, No. 5 ; R.S. 28, § 39; 1801, p. 16; R. 1797, p. 98, § 49; R. 1787, p. 136.

§ 779. Repealed. 1969, No. 222 (Adj. Sess.), § 5, eff. July 1, 1970.

History

Former § 779. Prior to repeal former § 779 was derived from V.S. 1947, § 1581; P.L. § 1542; G.L. § 1758; P.S. § 1461; V.S. § 1112; 1892, No. 28 , § 11; R.L. § 883; G.S. 12, § 22; R.S. 11, § 22; R. 1797, p. 139, § 10; R. 1787, p. 140.

§ 780. Indorsement of fees.

The officer serving process shall indorse thereon his or her fees and charges and the number of miles actually and necessarily traveled in the performance of his or her duty in serving the same, otherwise his or her fees shall not be allowed.

History

Source.

V.S. 1947, § 1580. P.L. § 1541. G.L. § 1757. 1917, No. 249 . P.S. § 1460. V.S. § 1111. R.L. § 882. G.S. 12, § 29. R.S. 11, § 28. 1807, p. 112.

ANNOTATIONS

Purpose.

This section was designed to protect parties to process from unjust exactions by officer for service of process by requiring that he make statement of items of his charges before he is entitled to or allowed same. Harrington v. Hill, 51 Vt. 44, 1878 Vt. LEXIS 116 (1878).

Retention of fees without indorsement.

If officer returned process satisfied, but without a detailed return of his doing thereon, and without an itemized minute of his fees, and retained his fees, execution debtor could recover their amount of him in assumpsit, or creditor of debtor could charge him therewith as trustee. Harrington v. Hill, 51 Vt. 44, 1878 Vt. LEXIS 116 (1878).

Subchapter 5. Manner of Service Generally

§§ 811-813. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 811-813. Former §§ 811-813 related to writ of summons, judicial writ on person within state, writ against a corporation.

Former § 811 was derived from V.S. 1947, § 1555; P.L. § 1519; G.L. § 1735; P.S. § 1443; V.S. § 1095; R.L. § 871; G.S. 33, § 21; R.S. 28, § 12; R. 1797, p. 84, § 26; R. 1787, pp. 26, 85.

Former § 812 was derived from V.S. 1947, § 1556; P.L. § 1520; G.L. § 1736; P.S. § 1444; V.S. § 1096; R.L. § 872; G.S. 33, § 23; R.S. 28, § 21.

Former § 813 was derived from V.S. 1947, § 1557; P.L. § 1521; G.L. § 1737; P.S. § 1445; V.S. § 1097; R.L. § 873; G.S. 33, § 24; R.S. 28, § 14; 1821, p. 80; R. 1797, p. 300, § 3; R. 1787, p. 30 and amended by 1959, No. 261 , § 10.

§ 814. Partnerships and unincorporated associations—suit in firm name; service of process.

A partnership or an unincorporated association or joint stock company may sue and be sued in its firm, associate, or company name and service of process against such partnership, association, or company made upon any officer, a managing or general agent, a superintendent, any member thereof, or any agent authorized by appointment or by law to receive service of process, shall have the same force and effect as regards the joint rights, property, and effects of the partnership, association, or company as if served upon all the partners, associates, or shareholders.

HISTORY: Amended 1959, No. 261 , § 9.

History

Source.

V.S. 1947, § 1565. 1937, No. 41 . P.L. § 1526. G.L. § 1743. P.S. § 1448. V.S. § 1099. 1882, No. 71 , § 1.

Amendments

—1959. Provided for service on any officer, agent or superintendent, or agent appointed or authorized by law to receive service.

Derivation note. Cf. Rule 4(d)(3) of Federal Rules of Civil Procedure.

CROSS REFERENCES

Partnerships generally, see 11 V.S.A. ch. 9.

ANNOTATIONS

Constitutionality.

This section is not in violation of the Fourteenth Amendment to Federal Constitution as taking property without due process of law. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Common law.

At common law, an unincorporated association, as regards its rights and liabilities, is fundamentally large partnership, status of its members is that of partners, and association must sue and be sued in names of its members, however numerous they may be. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Construction and effect.

This section and § 5060 of this title were parts of same act, 1882, No. 71 , and must be construed together. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Statute recognizes as entity separate and distinct from members of partnerships, associations or companies, and individuals in becoming members impliedly contract with reference to provisions of statute and are bound by them. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Federal district court.

Rhode Island partnership could bring suit in its firm name against Vermont corporation in federal district court. Remington Dairy v. Rutland Ry., 15 F.R.D. 488, 1954 U.S. Dist. LEXIS 4298 (D. Vt. 1954), overruled, Universal Steel & Metal Co. (1975), Ltd. v. Railco, Inc., 465 F. Supp. 7, 1978 U.S. Dist. LEXIS 15401 (D. Vt. 1978).

Purpose.

This section was enacted for practical convenience and benefit of partnerships, associations and companies to which it relates, as well as for convenience and benefit of creditors, in bringing and prosecuting suits. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Law Reviews —

National recovery code assessments, see 44 Yale L.J. 849, 866 (1935).

§ 815. Nonabatement on change in officers or members.

Such cause shall not abate by reason of the death, removal, or resignation of the president, other principal officer, clerk, or treasurer, or by the death or legal incapacity of any such partner, associate, or shareholder, or by reason of any change in the membership of such partnership, association, or company during the pendency of such cause.

History

Source.

V.S. 1947, § 1566. P.L. § 1527. G.L. § 1744. P.S. § 1449. V.S. § 1100. 1882, No. 71 , § 2.

§ 816. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 816. Former § 816 related to in rem actions and was derived from 1955, No. 271 . This section is now covered by V.R.C.P. 4(g), 23.

Subchapter 6. Foreign Corporations

CROSS REFERENCES

Foreign corporations, generally, see 11A V.S.A. ch. 15..

§ 851. Service on Secretary of State.

When a foreign corporation has appointed the Secretary of State as its process agent pursuant to the statutes relating to such corporations, service of process made upon the Secretary by delivering to him or her duplicate copies thereof, shall be sufficient. A copy of the stipulation, filed under the provisions of 11 V.S.A. § 3011 , 11A V.S.A. § 15.10, and 11B V.S.A. § 15.10, certified by the Secretary, with his or her certificate that process has been served on him or her, shall be sufficient evidence thereof.

History

Source.

V.S. 1947, § 1558. P.L. § 1522. G.L. § 1739. 1915, No. 59 , § 3. P.S. §§ 780, 1447, 4744, 4745. 1904, No. 29 , § 19. V.S. §§ 1098, 4165, 4166. 1894, No. 43 , § 1. 1884, No. 46 , § 1. 1882, No. 71 , § 6. R.L. §§ 3608, 3609. 1874, No. 1 , § 8. G.S. 87, §§ 8, 9. 1852, No. 46 , §§ 2, 5.

References in text.

Section 3011 of Title 11, referred to in this section, was repealed by 2014, No. 17 (Adj. Sess.), § 1.

Revision note

—2002. Reference to “subchapter 15 of chapter 17 of Title 11” was changed to “section 3011 of Title 11, section 15.10 of Title 11A, and section 15.10 of Title 11B” to conform reference to repeal of chapter 17 of Title 11 by 1993, No. 85 § 3(a), eff. Jan. 1, 1994 and the enactment of superseding provisions by 1993, No. 85 § 2, eff. Jan. 1, 1994 and 1995, No. 179 (Adj. Sess.) §§ 1, 4, eff. Jan. 1, 1997.

CROSS REFERENCES

Aircraft operators, service on, see 5 V.S.A. § 401 et seq.

Doing business by particular companies without designating process agent; penalty, see § 853 of this title.

Executors, administrators, and trustees, see 14 V.S.A. § 904 .

Foreign corporations generally, see 11 V.S.A. § 1027 and 11A V.S.A. § 15.01 et seq.

Fraternal benefit societies, service on, see 8 V.S.A. § 4461 et seq.

Insurance companies generally, see 8 V.S.A. § 3301 et seq.

Motor vehicle operators, see §§ 891-893 of this title.

Nonresidents doing business in individual capacity, see 11 V.S.A. §§ 1630-1634 .

Nonresident real estate brokers, see 26 V.S.A. § 2297 .

Partnerships, see 11 V.S.A. §§ 1630-1634 .

Process agents, see 11 V.S.A. § 1630 .

Public service corporations, see 11 V.S.A. § 273 ; 30 V.S.A. § 101 et seq.

Registration of business entities, see 11 V.S.A. § 1621 et seq.

Secretary of State as process agent for foreign companies; failure and neglect, see 11 V.S.A. §§ 1633 , 1634.

Telegraph and telephone companies, see 30 V.S.A. § 2701 et seq.

Tobacco products distributors, see 7 V.S.A ch. 40.

Unauthorized insurers service of process, see 8 V.S.A. § 3381 et seq.

ANNOTATIONS

Foreign corporation.

The statement in a writ that defendant is a corporation having its principal office in Boston in state of Massachusetts prima facie establishes its status as that of a foreign and nonresident corporation. Kittredge v. The Fairbanks Company, 91 Vt. 174, 99 A. 1016, 1917 Vt. LEXIS 227 (1917).

Minimum contacts.

Defendant European corporation’s total ownership of New Jersey corporation authorized to do business in Vermont was one of the “minimum contacts” of defendant with Vermont to be considered in deciding whether court had personal jurisdiction over defendant, but was not in itself full basis for exercise of personal jurisdiction; intentional and affirmative action by the nonresident defendant is the key to personal jurisdiction under either statute relating to foreign corporations or rule relating to out-of-state service. Pasquale v. Genovese, 136 Vt. 417, 392 A.2d 395, 1978 Vt. LEXIS 765 (1978).

§ 852. Fees; mailing of copy to corporation.

When process is served on the Secretary of State under the provisions of section 851 of this title, there shall be paid to him or her by the officer at the time of such service the sum of $5.00. The Secretary shall forthwith forward by mail prepaid one of the duplicate copies to the corporation at its home office or to a person whom it designates.

HISTORY: Amended 1963, No. 37 , § 6; 1967, No. 278 (Adj. Sess.), § 10, eff. July 1, 1968.

History

Source.

V.S. 1947, § 1559. P.L. § 1523. G.L. § 1740. P.S. § 4746. V.S. § 4167. 1894, No. 43 , § 2. 1884, No. 46 , § 2. R.L. § 3609. 1874, No. 1 , § 8.

Amendments

—1967 (Adj. Sess.). Increased fee.

—1963. Fee increased.

§ 853. Doing business by particular companies without designating process agent; penalty.

A person or agent for a foreign insurance, express, shipping car, telephone or telegraph company, or other foreign company doing like business, which has not designated the Secretary of State as its process agent, as required by 11 V.S.A. § 692 who solicits or receives a risk or application for insurance, or receives money or value for such insurance by such company, or receives money or value for the transportation of a package or property by such express or shipping car company, or for the transmission of a message or dispatch by such telegraph company, or receives money, rent, royalty, or income for such telephone company for the use of its instruments or lines or for the sending of any message, shall be fined not more than $500.00 nor less than $100.00.

History

Source.

V.S. 1947, § 1560. P.L. § 1524. G.L. § 1741. P.S. § 4747. V.S. § 4168. 1884, No. 46 , § 3. R.L. § 3610. 1874, No. 1 , § 9. G.S. 87, § 10. 1854, No. 31 , § 2. 1852, No. 47 , § 6.

References in text.

Section 692 of Title 11, referred to in this section, was repealed by 1971, No. 237 (Adj. Sess.) § 100, eff. Jan. 1. 1973. Service of process on foreign corporations previously covered by § 2110 of Title 11 was repealed by 1993, No. 85 § 3(a), eff. Jan. 1, 1994 and is now covered by § 3011 of Title 11, § 15.10 of Title 11A, and § 15.10 of Title 11B enacted by 1993, No. 85 § 2, eff. Jan. 1, 1994 and 1995, No. 179 (Adj. Sess.) §§ 1, 4, eff. Jan. 1, 1997.

§ 854. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 854. Former § 854 related to service when process agent not designated and was derived from V.S. 1947, § 1561; P.L. § 1525; G.L. § 1742; 1917, No. 144 , § 1; P.S. §§ 780, 1447, 4748; 1904, No. 29 , § 19; V.S. §§ 1098, 4169; 1848, No. 46 , §§ 1, 4; 1882, No. 71 , § 6; R.L. §§ 3608, 3609; 1874, No. 1 , § 8; G.S. 87, §§ 6, 9; 1852, No. 46 , §§ 2, 5. Prior to repeal former § 854 was amended by 1959, No. 261 , § 11. This section is now covered by V.R.C.P. 4(d)(7).

§ 855. Doing business as appointment of process agent.

If the contact with the State or the activity in the state of a foreign corporation, or the contact or activity imputable to it, is sufficient to support a Vermont personal judgment against it, the contact or activity shall be deemed to be doing business in Vermont by that foreign corporation and shall be equivalent to the appointment by it of the Secretary of the State of Vermont and his or her successors to be its true and lawful attorney upon whom may be served all lawful process in any action or proceedings against it arising or growing out of that contact or activity, and also shall be deemed to be its agreement that any process against it which is so served upon the Secretary of State shall be of the same legal force and effect as if served on the foreign corporation at its principal place of business in the state or country where it is incorporated according to the law of that state or country.

HISTORY: Amended 1967, No. 353 (Adj. Sess.), § 5, eff. July 1, 1968; 1971, No. 185 (Adj. Sess.), § 43, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1562. 1937, No. 40 , § 1.

Amendments

—1971 (Adj. Sess.). Rephrased.

—1967 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Constitutionality.

This section expresses a policy to assert jurisdiction over foreign corporations to the fullest extent permitted by the Due Process Clause of the Fourteenth Amendment. Chittenden Trust Co. v. Bianchi, 148 Vt. 140, 530 A.2d 569, 1987 Vt. LEXIS 462 (1987).

This section expresses a policy to assert jurisdiction over foreign corporations to the full extent permitted by the Due Process Clause of the Fourteenth Amendment. Vermont Castings, Inc. v. Evans Products Co., 510 F. Supp. 940, 1981 U.S. Dist. LEXIS 11279 (D. Vt. 1981).

This section represents a practical attempt to assert jurisdiction in cases where the interests of Vermont residents are affected and is constitutional. Deveny v. Rheem Manufacturing Company, 319 F.2d 124, 1963 U.S. App. LEXIS 5058 (2d Cir. 1963).

Tort provision of this section is not in conflict with Federal Constitution so far as Due Process Clause of Fourteenth Amendment is concerned. Smyth v. Twin State Imp. Corp., 116 Vt. 569, 80 A.2d 664, 1951 Vt. LEXIS 134 (1951), 34 B.U.L. Rev. 190 (1951).

Generally.

Question whether a Vermont court has jurisdiction over nonresident defendants is one of federal constitutional law requiring court to decide whether defendants have had sufficient minimum contacts with Vermont such that maintenance of suit does not offend traditional notions of fair play and substantial justice, and critical consideration is whether defendants’ conduct and connections with forum state are such that they should reasonably anticipate being haled into court there; it is essential to a finding of personal jurisdiction that a defendant purposefully avails itself of privilege of conducting activities within forum state, thus invoking benefits and protections of its laws. Schwartz v. Frankenhoff, 169 Vt. 287, 733 A.2d 74, 1999 Vt. LEXIS 94 (1999).

Process may be validly served under this section only in an action or proceeding arising out of the contact with or activity in Vermont. Vermont Castings, Inc. v. Evans Products Co., 510 F. Supp. 940, 1981 U.S. Dist. LEXIS 11279 (D. Vt. 1981).

Federal District Court was bound by State court construction of State’s Long-Arm Statute. Braman v. Mary Hitchcock Memorial Hospital, 631 F.2d 6, 1980 U.S. App. LEXIS 14392 (2d Cir. 1980).

Where compliance with the procedural requirements of this section and § 856 of this title involving service of process on foreign corporation by service on Vermont Secretary of State, with forwarding of process and return by registered mail to foreign corporation, were not questioned, reversal of order dismissing complaint for want of jurisdiction was required. Bard Bldg. Supply Co., Inc. v. United Foam Corp., 137 Vt. 125, 400 A.2d 1023, 1979 Vt. LEXIS 944 (1979).

The vital factor in determining the existence of jurisdiction of the person of the absent foreign corporation is the intentional and affirmative action on the part of the nonresident in pursuit of its corporate purposes within the jurisdiction and a single act, purposefully performed here, will put the actor within the reach of the sovereignty of this State, as will active participation in the Vermont market, either by direct shipment, or by way of transmittal through regular distributors presently serving the Vermont marketing area. O'Brien v. Comstock Foods, Inc., 123 Vt. 461, 194 A.2d 568, 1963 Vt. LEXIS 99 (1963).

An essential jurisdictional factor cannot be supplied by speculation. O'Brien v. Comstock Foods, Inc., 123 Vt. 461, 194 A.2d 568, 1963 Vt. LEXIS 99 (1963).

Appeals.

Service on European corporation could not give the court jurisdiction under substituted service on foreign corporation statute where findings in lower court proceeding allowing the service were completely silent as to activities in Vermont and absent any activity the corporation could not be deemed to be “doing business” in Vermont within the purview of the statute. Davis v. Saab Scania of Amer., Inc., 133 Vt. 317, 339 A.2d 456, 1975 Vt. LEXIS 393 (1975).

Conduct or activity.

Where plaintiff, Vermont corporation, placed order and made payment for goods with Florida corporation, which in turn placed order and made payment for goods with defendant, a Tennessee corporation not registered to do business in Vermont, with manufactured goods in accordance with specifications of Florida corporation and shipped goods under prepaid arrangement with common carrier in Tennessee directly to plaintiff, with title to the goods thus passing in Tennessee, contacts of defendant with Vermont were not sufficient, under tests mandated by Due Process Clause of Fourteenth Amendment, to support assertion of jurisdiction under this section or section 856 of this title. Robinson v. International Industries Limited, Inc., 139 Vt. 444, 430 A.2d 457, 1981 Vt. LEXIS 483 (1981).

Where Vermont corporation phoned foreign corporation in Pennsylvania to make an unsolicited order for goods found defective upon receipt, foreign corporation did not solicit or do any business in the state, and the goods were shipped C.O.D., lower court had jurisdiction over action against foreign corporation by Vermont corporation for damages for defects, and service of process could be had under statute providing for service upon Secretary of State and forwarding of process and return by registered mail to defendant. Bard Bldg. Supply Co., Inc. v. United Foam Corp., 137 Vt. 125, 400 A.2d 1023, 1979 Vt. LEXIS 944 (1979).

Collection in Vermont of the purchase price for goods sold to Vermont corporation by Pennsylvania corporation was a prime element of Pennsylvania corporation’s intent to purposefully avail itself of the privilege of conducting activities within Vermont, thus involving the benefits and prohibitions of Vermont law; by C.O.D. shipment, Pennsylvania corporation, found subject to service of process by service on Vermont Secretary of State, with forwarding of process and return by registered mail to Pennsylvania corporation, made the carrier its agent for delivering the goods and collecting the price. Bard Bldg. Supply Co., Inc. v. United Foam Corp., 137 Vt. 125, 400 A.2d 1023, 1979 Vt. LEXIS 944 (1979).

Once the requisite contact and activity have been found on the part of foreign corporate defendant the question remains whether the litigation grew out of such contact and activity, and in this regard it was incumbent that the plaintiff demonstrate that the defendant was causally responsible for the presence of the injuring agency within this State. Huey v. Bates, 135 Vt. 160, 375 A.2d 987, 1977 Vt. LEXIS 575 (1977).

Where defendant’s alleged contacts and activities within this jurisdiction, rather than being mere isolated acts which were unrelated to the plaintiff’s causes of action, were integral and necessary acts from which the action arose, the required nexus had been shown between the facts underlying the causes of action and the defendant’s alleged contacts and activities. Huey v. Bates, 135 Vt. 160, 375 A.2d 987, 1977 Vt. LEXIS 575 (1977).

Where shipment and ultimate sale of crawler-dozer in Vermont was direct result of foreign corporation’s deliberate, knowing and purposeful utilization of its in-state distribution system, corporation’s acts demonstrated a clear intention to actively participate in Vermont market and for purposes of wrongful death action arising out of fatal injury to person using vehicle manufactured by the corporation, it engaged in sufficient contact and activity to bring it within purview of this section. Huey v. Bates, 135 Vt. 160, 375 A.2d 987, 1977 Vt. LEXIS 575 (1977).

In suit by resident retired employee against defendant’s employees retirement plan and its corporate and individual administrators for breach of fiduciary duties, breach of contract and violations of Welfare and Pension Disclosure Act, defendants’ contacts and activities in Vermont, consisting at the most of three administrative letters mailed to plaintiff in Vermont, were not sufficient to warrant exercise of personal jurisdiction over defendants by courts of this State, and dismissal of action was required. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

Fact that nonresident corporation sold its product in Vermont did not give rise to cause of action by resident plaintiff suing defendant corporation’s employees retirement plan and its nonresident corporate and individual administrators for breach of fiduciary duties, breach of contract and violations of Welfare and Pension Disclosure Act; thus court lacked personal jurisdiction over defendants under this section. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

In order for the long-arm of this section to reach defendant, plaintiff must show that conduct or activity of defendant in Vermont gave rise to the particular cause of action. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

Fact that consequences of defendants’ activities have been felt in Vermont, standing alone, is insufficient to sustain personal jurisdiction by Vermont Federal District Court. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

Where Virginia residents bought an auto in Connecticut form a Connecticut dealer, and one defendant was a distributor with contacts with Vermont dealers and the other was distributor’s parent corporation, suit for false representations, breach of warranty and negligence was not “action or proceeding against” defendants “arising or growing out of that conduct or activity” carried on in Vermont by defendants as required by this section. Davis v. Saab Scania of Amer., Inc., 133 Vt. 317, 339 A.2d 456, 1975 Vt. LEXIS 393 (1975).

Jurisdiction over co-conspirators.

Counterclaim plaintiffs failed to make sufficient, properly supported proffers of evidence to allow assertion of personal jurisdiction over nonresident corporation, based on its participation in an alleged conspiracy causing tortious injury in Vermont; with few exceptions, counterclaim and affidavits contained only general and conclusory statements regarding conspiracy, and exceptions did not constitute sufficient prima facie showing as to existence of conspiracy involving corporation commencing at relevant time. Schwartz v. Frankenhoff, 169 Vt. 287, 733 A.2d 74, 1999 Vt. LEXIS 94 (1999).

Counterclaim plaintiffs failed to make requisite prima facie showing to assert personal jurisdiction over Illinois-based law firm as a conspirator, where all lawyers’ acts were ostensibly taken for client, and could be fully explained by client’s desire to liquidate his interest in company and avoid liability for company’s debts that he personally guaranteed, and counterclaim plaintiffs also failed to establish jurisdiction over law firm on theory of intentional infliction of emotional distress. Schwartz v. Frankenhoff, 169 Vt. 287, 733 A.2d 74, 1999 Vt. LEXIS 94 (1999).

Knowledge of consequences.

The act by a foreign corporation which will subject it to Vermont’s jurisdiction under this section must be one which the foreign corporation could know to have potential consequences in Vermont. Deveny v. Rheem Manufacturing Company, 319 F.2d 124, 1963 U.S. App. LEXIS 5058 (2d Cir. 1963).

Minimal contacts.

Defendant’s contacts with Vermont were sufficient to establish long-arm jurisdiction over it, where defendant was in the business of selling heavy equipment to a national market, it reached that market by advertising in a national trade journal, and equipment sale in question arose from contact made as a result of advertisement. Brown v. Cal Dykstra Equipment Co., 169 Vt. 636, 740 A.2d 793, 1999 Vt. LEXIS 246 (1999) (mem.).

Where, by its terms, State service of process upon foreign corporations statute expressed policy to assert jurisdiction to full extent permitted by Due Process Clause of Fourteenth Amendment, issue of whether jurisdiction existed in case at hand was one of federal constitutional law, with basic test being that validity of service depends upon whether defendant has certain minimum contacts with Vermont such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Bard Bldg. Supply Co., Inc. v. United Foam Corp., 137 Vt. 125, 400 A.2d 1023, 1979 Vt. LEXIS 944 (1979).

The extent of participation in the Vermont market that will satisfy the elements of fair play and substantial justice is the essential element for exercise of jurisdiction over a foreign corporation by service on Vermont Secretary of State with forwarding of process and return by registered mail to foreign corporation. Bard Bldg. Supply Co., Inc. v. United Foam Corp., 137 Vt. 125, 400 A.2d 1023, 1979 Vt. LEXIS 944 (1979).

While service pursuant to State statute is a permissible method of commencing actions in Federal District Courts, out-of-state defendants can be subjected to the reach of this section only in suits growing out of acts which have created essential contacts with the forum state. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

As to both diversity and federal question jurisdiction of Federal District Court, in personam jurisdiction can be obtained over nonresident defendants by substituted service on the Vermont Secretary of State only if defendants had sufficient “minimal contacts” in Vermont. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

When a substituted service action against a foreign corporation is dismissed for insufficient required minimal contacts to establish jurisdiction, the issue of the merits of personal jurisdiction has been decided, not the issue of the merits of the claim, and an assignee of plaintiff’s claim misapprehends the law if he argues he is not bound by the dismissal because it was not on the merits; he can always sue in the state having sufficient contacts. Davis v. Saab Scania of Amer., Inc., 133 Vt. 317, 339 A.2d 456, 1975 Vt. LEXIS 393 (1975).

Where defendant Georgia corporation had subsidiaries and related corporations in Vermont and an airplane under its management and control flew into Vermont and was lost over Lake Champlain a few minutes after takeoff at Burlington, defendant would be deemed to be a foreign corporation doing business in Vermont and the contact and activity would support a personal judgment against it, under this statute, in suit by administrator of a passenger never found and presumed dead. Miller v. Cousins Properties, Inc., 378 F. Supp. 711, 1974 U.S. Dist. LEXIS 9394 (D. Vt. 1974).

Persons who owned Georgia partnership which serviced plane which crashed in Vermont, whose only contact with owner of the plane was through the pilot and co-pilot, whose affidavit refuted the idea they knew or had good reason to know their service would have causative effect in Vermont and who were not told the plane was going to Vermont could not be sued in Vermont. Miller v. Cousins Properties, Inc., 378 F. Supp. 711, 1974 U.S. Dist. LEXIS 9394 (D. Vt. 1974).

In determining whether a state has jurisdiction over the person of an absent foreign corporation, the “certain minimal contacts” which will permit the acquisition of such jurisdiction must afford a “substantial connection” with the state of the forum. O'Brien v. Comstock Foods, Inc., 123 Vt. 461, 194 A.2d 568, 1963 Vt. LEXIS 99 (1963).

Vermont court is permitted to reach out-of-state defendants only in suits growing out of acts which have created contacts with Vermont, however limited or transient such contacts may be. Deveny v. Rheem Manufacturing Company, 319 F.2d 124, 1963 U.S. App. LEXIS 5058 (2d Cir. 1963).

Manufacturer of water heaters who shipped them regularly to franchised dealer in Vermont who sold them to Vermont buyers had sufficient contact with Vermont to be subject to jurisdiction in Vermont under this section in suit by person injured by exploding heater. Deveny v. Rheem Manufacturing Company, 319 F.2d 124, 1963 U.S. App. LEXIS 5058 (2d Cir. 1963).

Pleadings.

When a plaintiff seeks to reach a foreign corporate defendant in personam by service under this section, it is incumbent upon the claimant to plead sufficient facts to demonstrate that the defendant is causally responsible for the presence of the injuring agency within this State. O'Brien v. Comstock Foods, Inc., 123 Vt. 461, 194 A.2d 568, 1963 Vt. LEXIS 99 (1963).

Res judicata.

Judgment dismissing action for lack of personal jurisdiction over foreign corporation bound successor to defendant corporation and assignee of plaintiffs’ claim as they were privies to the parties in the suit. Davis v. Saab Scania of Amer., Inc., 133 Vt. 317, 339 A.2d 456, 1975 Vt. LEXIS 393 (1975).

Where Virginia residents bought an auto in Connecticut and their Vermont suit for false representations, breach of warranty and negligence against Connecticut corporation distributing, as a subsidiary of European manufacturing firm, the auto in the United States and assumed to be doing business in Vermont, was dismissed for insufficient minimal contacts of the defendant with Vermont to establish jurisdiction under the substituted service law, subsequent Vermont action under such substituted service, by assignee of purchasers against successor to defendant in prior suit and against the parent corporation, asserting an identical cause of action, should have been dismissed on res judicata grounds as against the Connecticut corporation. Davis v. Saab Scania of Amer., Inc., 133 Vt. 317, 339 A.2d 456, 1975 Vt. LEXIS 393 (1975).

Cited.

Cited in Messier v. Whitestown Packing Corp., 544 F. Supp. 8, 1982 U.S. Dist. LEXIS 14897 (D. Vt. 1982); Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122, 1990 Vt. LEXIS 256 (1990); Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

Law Reviews —

Subsidiary conduct as basis for long-arm jurisdiction over a parent corporation in Vermont, see 3 Vt. L. Rev. 111 (1978).

§ 856. Service of process.

Service of process by virtue of section 855 of this title shall be made by delivering to the Secretary of State duplicate copies of the process, with the officer’s return of service thereon, and a fee of $25.00, to be taxed in the plaintiff’s costs if he or she prevails. The Secretary shall forthwith forward one of the duplicate copies by registered mail prepaid to the corporation at its principal place of business in the state or country where it is incorporated, which principal place of business shall be stated in the process. The service shall be sufficient if a copy of the process, with the officer’s return thereon showing the service upon the Secretary of State, is sent by the plaintiff to the foreign corporation by registered mail, and if the plaintiff’s affidavit of compliance herewith is filed with the process in court. The Secretary shall file one of the copies and endorse upon each copy the day and hour of service.

HISTORY: Amended 1963, No. 37 , § 7; 1967, No. 278 (Adj. Sess.), § 11, eff. July 1, 1968; 1971, No. 185 (Adj. Sess.), § 44, eff. March 29, 1972; 2013, No. 72 , § 11.

History

Source.

V.S. 1947, § 1563. 1937, No. 40 , § 2.

Amendments

—2013. Substituted “$25.00” for “$5.00” and added “or she” in the first sentence.

—1971 (Adj. Sess.). Rephrased, omitted “this section” and provided for taxing costs.

—1967 (Adj. Sess.). Rephrased section and increased fee.

—1963. Fee increased from $1.00 to $3.00.

ANNOTATIONS

Affidavits.

Where there was no affidavit of compliance to show that a duplicate copy of the process delivered to the Secretary of State was sent by registered mail to defendant either by the Secretary or by plaintiff, process was inadequate; but since statute of limitations may have run out, court, rather than dismiss, would quash service and retain the action to enable correction of service. Miller v. Cousins Properties, Inc., 378 F. Supp. 711, 1974 U.S. Dist. LEXIS 9394 (D. Vt. 1974).

Mailing copies of process.

This section requires the Secretary of State and the plaintiff as well to mail copies of the process to the defendant corporation by registered mail, directed to its principal place of business. O'Brien v. Comstock Foods, Inc., 123 Vt. 461, 194 A.2d 568, 1963 Vt. LEXIS 99 (1963).

Cited.

Cited in Robinson v. International Industries Limited, Inc., 139 Vt. 444, 430 A.2d 457, 1981 Vt. LEXIS 483 (1981); Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122, 1990 Vt. LEXIS 256 (1990).

§ 857. Continuance; costs.

The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to appear and defend. The fee provided in section 856 of this title shall be taxed in the plaintiff’s costs if he or she prevails.

History

Source.

V.S. 1947, § 1564. 1937, No. 40 , § 3.

§ 858. Alternative means of service.

As an alternative to service of process under this subchapter or when a stipulation appointing the Secretary of State as process agent is not filed with the Commissioner of Foreign Corporations, process may be served upon a foreign corporation in accordance with sections 912 and 913 of this title or by any method that the Supreme Court shall by rule provide for service upon a domestic corporation.

HISTORY: Added 1971, No. 185 (Adj. Sess.), § 234, eff. March 29, 1972.

History

References in text.

Section 912 of this title relating to service of process was repealed by 1971, No. 185 (Adj. Sess.), § 237 and is now covered by V.R.C.P. 4(e).

Subchapter 7. Operators of Motor Vehicles

§ 891. Commissioner of Motor Vehicles as process agent.

The acceptance by a person of the rights and privileges conferred upon him or her by Titles 19 and 23, as evidenced by his or her operating, or causing to be operated, a motor vehicle in this State shall be deemed equivalent to an appointment by such person of the Commissioner of Motor Vehicles, or his or her successor in office, to be his or her true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against such person or his or her estate if he or she is deceased at the time when the suit is brought, growing out of any accident or collision in which such person may be involved while operating or causing to be operated a motor vehicle in this State. Such acceptance shall be deemed to be the agreement of such person that any process against him or her which is so served upon the Commissioner shall be of the same legal force and validity as if served on the person personally.

HISTORY: Amended 1969, No. 88 , § 1, eff. April 18, 1969.

History

Source.

1951, No. 209 , § 1. V.S. 1947, § 10,062. 1935, No. 117 , § 1. P.L. § 5001. 1927, No. 69 , § 2. 1925, No. 70 , § 120.

Revision note

—1959. “Commissioner” was changed to “Commissioner of Motor Vehicles” for clarification purposes.

Amendments

—1969. Added reference to actions against person’s estate.

ANNOTATIONS

Constitutionality.

This section and § 892 of this title are a valid exercise of power by a state on the basis that it has the right to regulate the use of its highways. Proulx v. Goulet, 315 F. Supp. 622, 1970 U.S. Dist. LEXIS 10747 (D. Vt. 1970).

Complaint.

Since this section is only applicable to cause of action arising in this State, complaint should set out not only facts which constitute cause of action, but also jurisdictional facts with that degree of certainty which nature of facts pleaded reasonably requires, in order that they may be understood by party who is required to answer; and it is not enough to refer to jurisdictional fact in an uncertain, doubtful or ambiguous manner as a kind of general dragnet to meet whatever situation might arise. Emerson v. Carrier, 119 Vt. 390, 125 A.2d 822, 1956 Vt. LEXIS 121 (1956).

Construction.

Legislature intended by 1951 amendment to make section applicable to persons who absent themselves from State, whether residents or nonresidents. Law's Admr. v. Culver, 121 Vt. 285, 155 A.2d 855, 1959 Vt. LEXIS 121 (1959).

While this section must be strictly construed, it must be so construed as to accomplish purpose for which it was intended. Emerson v. Carrier, 119 Vt. 390, 125 A.2d 822, 1956 Vt. LEXIS 121 (1956).

This section provides all procedural safeguards for due process of law. Emerson v. Carrier, 119 Vt. 390, 125 A.2d 822, 1956 Vt. LEXIS 121 (1956).

When defendant is amenable to process under this section, time of his absence from and non-residence in State is not excluded from two-year period provided in 14 V.S.A. § 1492 . Reed v. Rosenfield, 115 Vt. 76, 51 A.2d 189, 1947 Vt. LEXIS 81 (1947).

Federal district court jurisdiction.

District Court in Vermont has jurisdiction in suit between nonresidents where accident occurred in Vermont, since appointment of commissioner as agent under this section constitutes consent to venue in this district. Jacobson v. Schuman, 105 F. Supp. 483 (D. Vt. 1952), contra: Olberding v. Illinois C.R.R. (1953) 346 U.S. 338, 74 S.Ct. 83, 98 L.Ed. 7.

Cited.

Cited in Mintz v. Matalon, 148 Vt. 442, 535 A.2d 783, 1987 Vt. LEXIS 538 (1987); Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122, 1990 Vt. LEXIS 256 (1990).

§ 892. Service on Commissioner; mailing copies; fees.

  1. Service of process shall be made by leaving a copy of the process with a fee of $15.00 with the Commissioner, or in his or her office. Service shall be sufficient upon the person, provided that a copy of the process with the officer’s return on it, showing service upon the Commissioner as provided in this section, is sent by the plaintiff to the defendant, or the personal representative of his or her estate, by registered or certified mail, and provided further that the plaintiff’s affidavit of compliance is filed with the process in court. The Commissioner shall file copies served upon him or her as provided in this section, and show upon each copy the day and hour of service.
  2. Such manner of service shall be in addition to all existing manner of service, rights, and remedies, and the availability of such manner of service shall not make the provisions of section 552 of this title inoperative, relative to tolling of the statute of limitations.

HISTORY: Amended 1961, No. 134 ; 1969, No. 88 , § 2, eff. April 18, 1969; 1989, No. 51 , § 6; 2001, No. 102 (Adj. Sess.), § 2, eff. May 15, 2002; 2003, No. 101 (Adj. Sess.), § 7.

History

Source.

Subsec. (a): 1951, No. 209 , § 2. V.S. 1947, § 10,063. P.L. § 5002. 1927, No. 69 , § 2. 1925, No. 70 , § 120.

Subsec. (b): 1951, No. 209 , § 3.

Amendments

—2003 (Adj. Sess.) Subsec. (a): Amended generally.

—2001 (Adj. Sess.). Subsec. (a): Substituted “fee of $15.00” for “fee of $10.00”.

—1989. Subsec. (a): Substituted “$10.00” for “$2.00” following “fee of” in the first sentence and inserted “or her” following “him” throughout the subsec.

—1969. Subsec. (a): Added reference to service on personal representative of estate.

—1961. Subsec. (b): Added “and the availability of such manner of service shall not make the provisions of section 552 of this title inoperative, relative to tolling of the statute of limitations”.

ANNOTATIONS

Compliance.

Because the trial court lacked sufficient evidence to determine whether plaintiff completed the requirements for substituted service by providing defendant driver with a copy of the return showing service on the Commissioner of Motor Vehicles, remand for further proceedings was necessary to enable the trial court to resolve the competing evidence regarding compliance. Messier v. Bushman, 2018 VT 93, 208 Vt. 261, 197 A.3d 882, 2018 Vt. LEXIS 128 (2018).

Construction.

In construing this section Supreme Court would not presume that statute was passed without common knowledge that necessary steps in commencement of action at law are ordinarily taken by attorney for plaintiff. Brammall v. LaRose, 105 Vt. 345, 165 A. 916, 1933 Vt. LEXIS 222 (1933).

Copy to defendant.

This section expressly permits service to be accomplished by delivery to the Commissioner of Motor Vehicles as attorney provided that a copy of the process is “sent”, the statute doesn’t say “delivered”, by the plaintiff to the defendant. Proulx v. Goulet, 315 F. Supp. 622, 1970 U.S. Dist. LEXIS 10747 (D. Vt. 1970).

This section, as amended, affords notice and opportunity to be heard, and provides all procedural safeguards for due process of law. Law's Admr. v. Culver, 121 Vt. 285, 155 A.2d 855, 1959 Vt. LEXIS 121 (1959).

Provision that copy of process shall be sent by plaintiff to nonresident defendant is necessary part of such service to constitute due process of law under Fourteenth Amendment to Federal Constitution.Brammall v. LaRose, 105 Vt. 345, 165 A. 916, 1933 Vt. LEXIS 222 (1933).

Such act is ministerial one, not required to be done by plaintiff personally, manifest purpose of statute being to make it reasonably probable that defendant shall receive actual notice of pendency of action. Brammall v. LaRose, 105 Vt. 345, 165 A. 916, 1933 Vt. LEXIS 222 (1933).

Limitation of actions.

Long arm statute, as amended in 1968 to permit service of process outside the State for personal judgment actions, did not supersede the 1961 amendment to the statute allowing service via the Commissioner of Motor Vehicles. Accordingly, the three-year statute of limitations was tolled when defendant resided out of state for the entire period and had no property in Vermont. Andrews v. Stam, 2007 VT 79, 182 Vt. 482, 939 A.2d 455, 2007 Vt. LEXIS 235 (2007).

Prior to 1961 amendment to this section, periods of limitation provided by 14 V.S.A. § 1492 and 12 V.S.A. § 557 are not suspended under 14 V.S.A. § 1492 and 12 V.S.A. § 552 by reason of defendant’s absence from state where substituted service under 12 V.S.A. § 891 was available. Law's Admr. v. Culver, 121 Vt. 285, 155 A.2d 855, 1959 Vt. LEXIS 121 (1959).

Plaintiff’s affidavit.

Plaintiff’s personal affidavit was not required, and where copy of process was mailed to defendant by plaintiff’s duly authorized attorney, affidavit of compliance filed by such attorney on plaintiff’s behalf, reciting acts done by him in furtherance of client’s business, was “plaintiff’s affidavit,” within spirit and reason of statute. Brammall v. LaRose, 105 Vt. 345, 165 A. 916, 1933 Vt. LEXIS 222 (1933).

Cited.

Cited in Mintz v. Matalon, 148 Vt. 442, 535 A.2d 783, 1987 Vt. LEXIS 538 (1987); Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122, 1990 Vt. LEXIS 256 (1990); Bashara v. Corliss, 161 Vt. 1, 632 A.2d 30, 1993 Vt. LEXIS 87 (1993).

§ 893. Continuances; costs.

The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the same. The fee herein provided shall be taxed in the plaintiff’s costs, if he or she prevails in the suit.

History

Source.

V.S. 1947, § 10,064. P.L. § 5003. 1925, No. 70 , § 120.

Subchapter 8. Notice to Absent Defendant; Writ of Review of Default Judgment Without Notice

§§ 911, 912. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 911-912. Former §§ 911, 912 related to delivery of copy of process and service within or without State.

Former § 911 was derived from V.S. 1947, § 2136; P.L. § 2084; 1927, No. 45 , § 1; G.L. § 2274; 1915, No. 1 , § 81; P.S. § 1997; 1904, No. 63 , § 1; V.S. § 1641; R.L. § 1402; 1878, No. 48 and amended by 1963, No. 176 , § 2.

Former § 912 was derived from 1953, No. 37 ; V.S. 1947, § 2137; 1939, No. 49 , § 1; P.L. § 2084; 1927, No. 45 , § 1; G.L. §§ 2274, 2275; 1915, No. 1 , § 81; P.S. §§ 1997, 1998; 1904, No. 63 , § 1; V.S. §§ 1641, 1642; R.L. §§ 1402, 1403; 1878, No. 48 and amended by 1961, No. 34 and 1971, No. 184 (Adj. Sess.), § 2.

§ 913. Effect of service outside the State.

  1. When process is served upon a party outside the State in such manner as the Supreme Court may by rule provide, the same proceedings may be had, so far as to affect the title or right to the possession of goods, chattels, rights, credits, land, tenements, or hereditaments in the State as if the process had been served on a party in the State.
  2. Upon the service, and if it appears that the contact with the State by the party or the activity in the State by the party or the contact or activity imputable to him or her is sufficient to support a personal judgment against him or her, the same proceedings may be had for a personal judgment against him or her as if the process or pleading had been served on him or her in the State.
  3. The provisions of subsection (b) of this section are in addition to all existing manner of service, rights, and remedies, and the availability of a personal judgment by reason of subsection (b) shall make the provisions of sections 855, 856, 891 and 892 of this title and 11 V.S.A. § 1630 alternative and not inoperative.

HISTORY: Amended 1967, No. 353 (Adj. Sess.), § 4, eff. July 1, 1968; 1971, No. 185 (Adj. Sess.), § 45, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2138. 1945, No. 29 , § 21. P.L. § 2086. 1927, No. 45 , § 2. G.L. § 2276. P.S. § 1999. V.S. § 1643. R.L. § 1404. 1878, No. 48 .

Amendments

—1971 (Adj. Sess.). Subsec. (a): Provided for service of process according to rule.

Subsec. (b): Substituted “the service” for “such notice”.

—1967 (Adj. Sess.). Original section designated subsec. (a).

Subsecs. (b), (c): Added.

ANNOTATIONS

Conduct and activities.

In this failure to warn and wrongful death action, the court allowed 30 days for discovery with respect to its potential jurisdiction over defendant seller where a Vermont-specific blog created the prospect of advertisements and other marketing efforts targeting this judicial district directly. Cernansky v. Lefebvre, 88 F. Supp. 3d 299, 2015 U.S. Dist. LEXIS 11367 (D. Vt. 2015).

Writ of mandamus directing dismissal of action against religious organization for lack of jurisdiction was warranted because District Court abused its discretion in finding organization “at home” in Vermont and irreparable harm that would result from allowing case to proceed constituted exceptional circumstances. Shovah v. Roman Catholic Diocese of Albany (in re Roman Catholic Diocese of Albany), 745 F.3d 30, 2014 U.S. App. LEXIS 2403 (2d Cir. 2014).

Assuming that a Vermont company had shown the existence of “minimum contacts,” the court was unconvinced that the nature and extent of the foreign corporation’s activities were sufficiently continuous, systematic, and substantial to confer general jurisdiction, and therefore summary judgment was granted in favor of the foreign corporation. Hyperkinetics Corp. v. Flotec, Inc., 2003 U.S. Dist. LEXIS 20551 (D. Vt. Sept. 25, 2003).

Standard for determining whether personal jurisdiction exists is whether defendant has committed intentional and affirmative action constituting active planned participation in Vermont market, and court will look to whether defendant has engaged in general course of conduct purposefully directed toward Vermont and inevitably affecting persons in State. Artec Distributing, Inc. v. Video Playback, Inc., 799 F. Supp. 1558, 1992 U.S. Dist. LEXIS 14915 (D. Vt. 1992).

California sole-proprietor of unincorporated business had sufficient contacts with Vermont to support personal jurisdiction where defendant advertised his business in at least one magazine of national circulation, received a small number of inquiries from prospective Vermont customers, and actually obtained one Vermont customer. Blue Compass Corp. v. Polish Masters of America, 777 F. Supp. 4, 1991 U.S. Dist. LEXIS 16279 (D. Vt. 1991).

Vermont trial court properly exercised personal jurisdiction over defendant whose oral promise to repay loans was made in Vermont, where substantial portions of the agreement were executed in Vermont, and where defendant retained ownership of Vermont property, sale of which would trigger obligation to repay, long after she received all funds advanced by plaintiff. Cameron v. Burke, 153 Vt. 565, 572 A.2d 1361, 1990 Vt. LEXIS 16 (1990).

In a proceeding relying upon this section for jurisdiction, the action or proceeding against defendant need not arise out of defendant’s contracts or activities in Vermont. Braman v. Mary Hitchcock Memorial Hospital, 631 F.2d 6, 1980 U.S. App. LEXIS 14392 (2d Cir. 1980).

This section’s provision for suit against a party served out of State who has, or to whom may be imputed, contacts or activities within the State sufficient to support a personal judgment against him reaches to the outer limits permitted by the due process clause. Braman v. Mary Hitchcock Memorial Hospital, 631 F.2d 6, 1980 U.S. App. LEXIS 14392 (2d Cir. 1980).

In suit by resident retired employee against nonresident defendant’s employees’ retirement plan and its corporate and individual administrators for breach of fiduciary duties, breach of contract and violations of Welfare and Pension Disclosure Act, where plaintiff’s pleadings and unopposed supporting affidavits indicated that defendants’ contacts and activities at most consisted of three administrative letters mailed to plaintiff in Vermont, such contacts and activities were not sufficient to warrant exercise of personal jurisdiction over defendants by courts of this State, and dismissal of action was required. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

Fact that consequences of defendants’ activities have been felt in Vermont, standing alone, is insufficient to sustain personal jurisdiction by Vermont Federal District Court. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

Fact that nonresident corporation sold its product in Vermont did not give rise to cause of action by resident plaintiff suing defendant corporation’s employees retirement plan and its nonresident corporate and individual administrators for breach of fiduciary duties, breach of contract and violations of Welfare and Pension Disclosure Act; thus Court lacked personal jurisdiction over defendants under this section. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

In personam proceeding.

Vermont’s long-arm statute has been interpreted as reflecting a clear policy allowing the State to assert jurisdiction over individual defendants to the full extent permitted by the Due Process Clause. Metropolitan Life Insurance Co. v. Robertson-Ceco Corp., 84 F.3d 560, 1996 U.S. App. LEXIS 11784 (2d Cir.), cert. denied, 519 U.S. 1006, 117 S. Ct. 508, 136 L. Ed. 2d 398, 1996 U.S. LEXIS 7171 (1996).

It is hardly unfair for defendants to defend themselves in jurisdictions where they choose to advertise their products. Dall v. Kaylor, 163 Vt. 274, 658 A.2d 78, 1995 Vt. LEXIS 24 (1995).

Where rule authorized service outside the state on “a person against whom a judgment for divorce or annulment of marriage is sought,” but provided that a judgment so obtained “shall affect only the interest, title, right, or status in question,” and this section authorized an in personam judgment based on out-of-state service in all instances where the minimum contacts test is met, rule and this section conflicted and this section controlled, and as a corollary, that portion of Emmons v. Emmons, 124 Vt. 107, 197 A.2d 812 (1964), which suggests that, absent voluntary submission, only personal service in the State can confer sufficient jurisdiction to authorize an alimony award is no longer governing. Von Ohlsen v. Von Ohlsen, 137 Vt. 377, 406 A.2d 393, 1979 Vt. LEXIS 995 (1979).

Presence in Vermont, of plane manufactured and originally sold by out-of-state corporation, was sufficient contact to permit service outside the state. Miller v. Cousins Properties, Inc., 378 F. Supp. 711, 1974 U.S. Dist. LEXIS 9394 (D. Vt. 1974).

Persons who owned Georgia partnership which serviced plane which crashed in Vermont, whose only contact with owner of the plane was through the pilot and co-pilot, whose affidavit refuted the idea they knew or had good reason to know their service would have causative effect in Vermont and who were not told the plane was going to Vermont could not be sued in Vermont. Miller v. Cousins Properties, Inc., 378 F. Supp. 711, 1974 U.S. Dist. LEXIS 9394 (D. Vt. 1974).

An order of notice outside, by itself, cannot create in personam jurisdiction. Avery v. Bender, 126 Vt. 342, 230 A.2d 786, 1967 Vt. LEXIS 195 (1967).

A denial of the order to vacate service would no more have conferred, by itself, personal jurisdiction not otherwise acquired, than could the order of notice outside the State create, by itself, in personam jurisdiction. Avery v. Bender, 126 Vt. 342, 230 A.2d 786, 1967 Vt. LEXIS 195 (1967).

Defendants, who were in business of selling horses and who held themselves out as breeders and developers of world class horses, initiated business transaction with Vermont resident by advertising, more than one hundred times, in a national market that included Vermont, and, therefore, should have anticipated being sued in Vermont if dispute arose from these activities. Dall v. Kaylor, 163 Vt. 274, 658 A.2d 78, 1995 Vt. LEXIS 24 (1995).

In rem proceeding.

Personal jurisdiction over defendant horse sellers would not offend traditional notions of fair play and substantial justice where defendants did not argue that Vermont was an inconvenient forum in which to try plaintiff’s breach of warranty claim, horse’s diseased condition was discovered in Vermont, and potential witnesses to horse’s condition and expenses incurred were likely to be in Vermont. Dall v. Kaylor, 163 Vt. 274, 658 A.2d 78, 1995 Vt. LEXIS 24 (1995).

Personal service outside Vermont on New York executor under statute governing notice to out-of-state defendant supported in rem proceedings wherein motion was made for court of chancery to assert jurisdiction over certain property representing trust assets. Avery v. Bender, 126 Vt. 342, 230 A.2d 786, 1967 Vt. LEXIS 195 (1967).

This section and V.R.C.P. 4, governing process, reflect a conscious purpose to extend jurisdiction over individual defendants to the extent permitted by the due process clause within the limits defined in International Shoe Co. v. Washington, 326 U.S. 310 (1945), and McGee v. International Life Insurance Co., 355 U.S. 220 (1957). McKennis v. Collingwood, 55 F.R.D. 156, 1972 U.S. Dist. LEXIS 14219 (D. Vt. 1972); Messier v. Whitestown Packing Corp., 544 F. Supp. 8, 1982 U.S. Dist. LEXIS 14897 (D. Vt. 1982).

Denial of order to vacate personal service outside State in in rem actions could not by itself confer personal jurisdiction not otherwise acquired. Avery v. Bender, 126 Vt. 342, 230 A.2d 786, 1967 Vt. LEXIS 195 (1967).

Service by order of notice on nonresident executor is sufficient, in an in rem action, to accomplish purpose of notice to estate of pendency of the litigation. Avery v. Bender, 126 Vt. 342, 230 A.2d 786, 1967 Vt. LEXIS 195 (1967).

Chancellor who was not called upon to determine jurisdictional reach of court over property involved in trust should not have attempted to limit extent of notice afforded New York executor to realty in Vermont, in an in rem action. Avery v. Bender, 126 Vt. 342, 230 A.2d 786, 1967 Vt. LEXIS 195 (1967).

Law governing.

Since the Vermont long arm statute reflects a clear policy to assert jurisdiction over individuals to the full extent permitted by the due process clause, issue of whether Vermont court may exercise personal jurisdiction over nonresident defendants must be resolved under federal constitutional law. Northern Aircraft, Inc. v. Reed, 154 Vt. 36, 572 A.2d 1382, 1990 Vt. LEXIS 25 (1990).

Where a defendant is amenable to service of process under statute extending jurisdiction over individual parties to the extent permitted by the due process clause and procedural rule governing personal service outside the State, the tolling provisions of statute of limitations applicable to wrongful death actions do not apply. Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122, 1990 Vt. LEXIS 256 (1990).

Minimal contacts.

In an action in which plaintiff, a Vermont corporation, asserted breach of contract and tort claims against defendants, a Canadian corporation and a Norwegian company, the exercise of specific personal jurisdiction over the Canadian corporation comported with 12 V.S.A. § 913(b) and due process requirements because there was a significant degree of interrelationship between defendants such that the actions of the Norwegian company could be attributed to the Canadian corporation, and the formation of a contract for the purchase of helicopter engines from plaintiff was sufficient to reflect defendants’ purposeful availment of the privilege of conducting activities within Vermont. Mansfield Heliflight, Inc. v. Heli-One Can. Inc., 2012 U.S. Dist. LEXIS 140191 (D. Vt. Sept. 28, 2012).

In a Vermont corporation’s suit based upon a letter of intent and confidentiality agreement, personal jurisdiction existed over Pennsylvania corporations and officers because defendants, inter alia, engaged in active negotiations, visited the Vermont office, and allegedly engaged in tortious conduct. Country Home Prods. v. Schiller-Pfeiffer, Inc., 350 F. Supp. 2d 561, 2004 U.S. Dist. LEXIS 27210 (D. Vt. 2004).

Under the due process clause, court may assert personal jurisdiction only where defendant has certain minimum contacts with forum state such that maintenance of suit does not offend traditional notions of fair play and substantial justice, and contacts with State must be such that a defendant should reasonably anticipate being haled into court there. Artec Distributing, Inc. v. Video Playback, Inc., 799 F. Supp. 1558, 1992 U.S. Dist. LEXIS 14915 (D. Vt. 1992).

Constitutional touchstone for establishing personal jurisdiction requires that defendant have established certain minimum contacts with forum state before court may assert personal jurisdiction, and determinative factor is foreseeability; defendant’s conduct and connection with forum must be such that he should reasonably anticipate being haled into court there. Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

For court to assert in personam jurisdiction over a nonresident defendant, it is not necessary that cause of action being litigated arise out of contacts defendant has with forum state, if defendant has established sufficient contacts with jurisdiction in general; exercise of such general jurisdiction comports with due process when it is based on general business contacts which are continuous and systematic in nature. Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

Nonresident surgeon and practice group did not have general business contacts with Vermont sufficient to confer general jurisdiction over them, where they were not licensed in Vermont, did not own property or maintain an office in Vermont, did not advertise or solicit business in Vermont, and only a small number of Vermont residents either occasionally went to Plattsburgh, New York for treatment or became ill while visiting and sought treatment on an emergency basis. Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

There was no authority to support exercise of general personal jurisdiction over nonresident surgeon and practice group in absence of requisite minimum contacts, and argument was rejected that requiring defendants to defend malpractice action in Vermont would be reasonable and comport with fair play and substantial justice, where defendants could not have foreseen that their allegedly unintentional tortious conduct toward plaintiff, then a resident of New York, while treating plaintiff in New York, would have effects in Vermont. Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

Nonresident defendants’ mere purchase from and occasional return of products to Vermont video tape distributing company did not establish minimum contacts sufficient for court to exercise personal jurisdiction over them; defendants never affirmatively sought to do business with a Vermont corporation, but instead were solicited by the Vermont plaintiff. Artec Distributing, Inc. v. Video Playback, Inc., 799 F. Supp. 1558, 1992 U.S. Dist. LEXIS 14915 (D. Vt. 1992).

Before a nonresident defendant can be brought into a Vermont court, the plaintiff must show that the Vermont long arm statute reaches the defendant, and that jurisdiction over him may be maintained without offending the due process clause. Northern Aircraft, Inc. v. Reed, 154 Vt. 36, 572 A.2d 1382, 1990 Vt. LEXIS 25 (1990).

While service pursuant to state statute is a permissible method of commencing actions in Federal District Courts, out-of-state defendants can be subjected to the reach of this section only in suits growing out of acts which have created essential contacts with the forum state. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

As to both diversity and federal question jurisdiction of Federal District Court, in personam jurisdiction can be obtained over nonresident defendants by substituted service on the Vermont Secretary of State only if defendants had sufficient “minimal contacts” in Vermont. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

Purpose.

Vermont’s Long-Arm Statute confers jurisdiction over nonresident defendants to full extent permitted by the Due Process Clause. Dall v. Kaylor, 163 Vt. 274, 658 A.2d 78, 1995 Vt. LEXIS 24 (1995).

Separate maintenance proceeding.

Where actual notice of pendency of wife’s petition for separate maintenance describing real and personal property within jurisdiction of court belonging to nonresident petitionee and out of which court is asked to grant relief sought is served on petitionee in manner provided by §§ 911, 912 of this title, same proceedings may be had, under this section, so far as to affect title or right to possession of petitionee’s property in State, as if petition had been served on him in State. Wilder v. Wilder, 93 Vt. 105, 106 A. 562, 1919 Vt. LEXIS 143 (1919).

Cited.

Cited in Vermont Castings, Inc. v. Evans Products Co., 510 F. Supp. 940, 1981 U.S. Dist. LEXIS 11279 (D. Vt. 1981); Schwartz v. Frankenhoff, 169 Vt. 287, 733 A.2d 74, 1999 Vt. LEXIS 94 (1999); Andrews v. Stam, 2007 VT 79, 182 Vt. 482, 939 A.2d 455, 2007 Vt. LEXIS 235 (2007); Andrews v. Stam, 2007 VT 79, 182 Vt. 482, 939 A.2d 455, 2007 Vt. LEXIS 235 (2007).

§ 914. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 914. Former § 914 related to absent defendant and was derived from V.S. 1947, § 2139; 1945, No. 29 , § 22; P.L. § 2087; G.L. § 2277; P.S. § 2000; V.S. § 1644; R.L. § 1405; G.S. 33, § 48; R.S. 28, § 53; R. 1797, p. 100, § 55; R. 1787, p. 27. Prior to repeal former § 914 was amended by 1963, No. 176 , § 3. This section is now covered by V.R.C.P. 4(g).

§ 915. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 915. Former § 915, relating to continuance in justice’s court, was derived from V.S. 1947, § 2140; P.L. § 2088; G.L. § 2278; 1908, No. 62 ; P.S. § 2001; V.S. § 1645; 1892, No. 41 ; R.L. § 1406; G.S. 31, §§ 50, 51; R.S. 26, §§ 25, 26; R. 1797, p. 422, § 8; 1789, p. 10; R. 1787, p. 85. and amended by 1971, No. 185 , § 46.

§§ 916-922. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 916-922. Former §§ 916-922 related to default judgments, review of original judgment, costs and appeal in action before justice.

Former § 916 was derived from V.S. 1947, § 2141; P.L. § 2089; 1927, No. 46 , § 1; G.L. § 2279; 1908, No. 62 ; P.S. § 2002; V.S. § 1646; R.L. § 1407; G.S. 31, § 52; G.S. 33, § 49; R.S. 26, § 27; R.S. 28, § 54; R. 1797, p. 100, § 55; R. 1797, p. 422, § 18; 1789, p. 10; R. 1787, pp. 27, 86.

Former § 917 was derived from V.S. 1947, § 2142; P.L. § 2090; G.L. § 2280; P.S. § 2003; V.S. § 1647; R.L. § 1408; G.S. 31, § 53; G.S. 33, §§ 50, 54; R.S. 26, § 28; R.S. 28, §§ 55, 59; 1817, p. 105; R. 1797, p. 100, § 55; R. 1797, p. 422, § 18; 1789, p. 10; R. 1787, pp. 27, 86.

Former § 918 was derived from V.S. 1947, § 2143; P.L. § 2091; G.L. § 2281; P.S. § 2004; V.S. § 1648; R.L. § 1409; G.S. 31, §§ 54, 55; G.S. 33, §§ 50, 52; R.S. 26, §§ 29, 30; R.S. 28, §§ 55, 57.

Former § 919 was derived from V.S. 1947, § 2144; P.L. § 2092; G.L. § 2282; P.S. § 2005; V.S. § 1649; R.L. § 1410; G.S. 31, § 56; G.S. 33, § 53; R.S. 26, § 31; R.S. 28, § 58; R. 1797, p. 102, § 56.

Former § 920 was derived from V.S. 1947, § 2145; P.L. § 2093; G.L. § 2283; P.S. § 2006; V.S. § 1650; R.L. § 1411; G.S. 33, § 55; R.S. 28, § 60.

Former § 921 was derived from V.S. 1947, § 2146; P.L. § 2094; G.L. § 2284; P.S. § 2007; V.S. § 1651; R.L. § 1412; G.S. 31, § 57; R.S. 26, § 32; R. 1797, p. 422, § 18.

Former § 922 was derived from V.S. 1947, § 2147; P.L. § 2095; G.L. § 2285; P.S. § 2008; V.S. § 1652; R.L. § 1413; G.S. 33, § 56; R.S. 28, § 61; 1817, p. 106; R. 1797, p. 102, § 56; R. 1797, p. 422, § 18; 1789, p. 11; R. 1787, p. 86.

Chapter 27. Pleading and Practice

Subchapter 1. Actions

§§ 971-974. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 971-974. Former §§ 971-974 related to actions.

Former § 971 was derived from V.S.A. 1947, § 1611; P.L. 1572; G.L. § 1789; 1915, No. 90 , § 1 and amended by 1959, No. 261 , § 1.

Former § 972 was derived from V.S. 1947, §§ 1612, 1616; P.L. §§ 1573, 1577; G.L. §§ 1790, 1794; 1917, No. 254 , §§ 1754a, 1758; 1915, No. 90 , § 11 and amended by 1959, No. 261 , § 2.

Former § 973 was derived from V.S. 1947, § 1619; P.L. § 1580; G.L. § 1797; 1917, No. 254 , § 1761; 1915, No. 90 , §§ 5, 18.

Former § 974 was derived from 1959, No. 261 , § 30.

Subchapter 2. Pleadings Generally

§§ 1021-1035. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 1021-1035. Former §§ 1021-1035 related to pleadings generally.

Former § 1021 was derived from V.S. 1947, § 1613; P.L. § 1574; 1921, No. 72 ; G.L. § 1791; 1917, No. 254 , § 1755; 1915, No. 90 , § 2; P.S. §§ 1499-1501; V.S. §§ 1149-1151; R.L. §§ 908-910; G.S. 30, § 32; G.S. 33, §§ 15, 16; 1856, No. 8 , §§ 2, 3; R.S. 25, § 35; 1821, p. 53; R. 1797, p. 124, § 98; R. 1797, p. 260, § 102 and amended by 1959, No. 261 , § 18.

Former § 1023 was derived from V.S. 1947, § 1615; P.L. § 1576; G.L. § 1793; 1915, No. 90 , § 8.

Former § 1024 was derived from 1959, No. 261 , § 16.

Former § 1025 was derived from 1959, No. 261 , § 17.

Former § 1026 was derived from 1959, No. 261 , § 19.

Former § 1027 was derived from 1959, No. 261 , § 20.

Former § 1028 was derived from 1959, No. 261 , § 21.

Former § 1029 was derived from 1959, No. 261 , § 22.

Former § 1031 was derived from 1959, No. 261 , § 24.

Former § 1032 was derived from 1959, No. 261 , § 25.

Former § 1033 was derived from 1959, No. 261 , § 26.

Former § 1034 was derived from 1959, No. 261 , § 27.

Former § 1035 was derived from 1959, No. 261 , § 29.

§ 1036. Comparative negligence.

Contributory negligence shall not bar recovery in an action by any plaintiff, or his or her legal representative, to recover damages for negligence resulting in death, personal injury, or property damage, if the negligence was not greater than the causal total negligence of the defendant or defendants, but the damage shall be diminished by general verdict in proportion to the amount of negligence attributed to the plaintiff. Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his or her causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed.

HISTORY: Added 1969, No. 234 (Adj. Sess.), § 1, eff. date see note; amended 1979, No. 179 (Adj. Sess.), § 1, eff. May 5, 1980.

History

Revision note—

Section was enacted as subsecs. (a) and (b); however, as subsec. (b) contained only the effective date, it has been set out as a note under this section to conform to V.S.A. style.

Amendments

—1979 (Adj. Sess.). In the first sentence inserted the word “total” between the words “causal” and “negligence” of the defendant; and added the words “or defendants”.

Subsec. (b) of this section provided that this section “shall take effect July 1, 1970 and shall apply to all causes of action arising after that date.”

ANNOTATIONS

Application to strict liability claim.

Comparative liability principles are applicable in strict products liability actions. Apportioning liability more effectively spreads recoveries from manufacturers for selling defective products than the “all or nothing” framework, under which some plaintiffs receive windfalls because they collect damages for injuries caused by their own negligence in addition to damages for injuries caused by the product defect, while some plaintiffs receive nothing because the court or jury has determined that their negligence constitutes misuse, assumption of risk, or an intervening cause, concepts often difficult to distinguish. Webb v. Navistar International Transportation Corp., 166 Vt. 119, 692 A.2d 343, 1996 Vt. LEXIS 126 (1996).

Juries may consider evidence of a plaintiff’s negligence in assessing damages as to strict liability claims as well as to negligence claims. Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1985 U.S. Dist. LEXIS 23149 (D. Vt. 1985).

Apportionment of damages.

In the absence of action by the Legislature to amend Vermont’s comparative negligence statute, there was no reason to depart from the interpretation of the statute holding that only those joined in the same action should be considered in apportioning damages. A health center was not a party to plaintiff’s action against defendant, and defendant did not allege that plaintiff was comparatively negligent, so the statute did not apply. Levine v. Wyeth, 2006 VT 107, 183 Vt. 76, 944 A.2d 179, 2006 Vt. LEXIS 306 (2006), aff'd, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51, 2009 U.S. LEXIS 1774 (2009).

Allocation of the respective percentages of causal negligence attributable to the plaintiff and defendant is generally a fact question for the jury, and plaintiff’s recovery is automatically reduced according to the proportional amount of his or her causal negligence. Barber v. LaFromboise, 2006 VT 77, 180 Vt. 150, 908 A.2d 436, 2006 Vt. LEXIS 164 (2006).

In an action against a manufacturer of heating tape for damage caused by a fire which resulted from a short circuit in the tape wires, where the complaint claimed negligence, breach of warranty and strict liability, trial court’s assessment of sixty percent of the fire’s causation to the manufacturer and forty percent to plaintiffs, based on careless installation of the wires on the water pipes of plaintiff’s trailer, would be reversed and remanded for a new trial, since the trial court failed to make specific findings and conclusions as to each theory of recovery and as a consequence of that failure Supreme Court could not ascertain whether plaintiff’s judgment was reduced by forty percent because of the application of comparative negligence to the negligence claim, or because of the application of a comparative fault principle to the strict liability claim. Page v. Smith-Gates Corp., 143 Vt. 280, 465 A.2d 1102, 1983 Vt. LEXIS 514 (1983).

In a personal injury action brought against a taxi owner and its employee, the driver of a taxi that struck and injured the plaintiff, the jury’s verdict was not fatally defective for failing to apportion damages between the two defendants since this section requires apportionment among joint tortfeasors, and that was not the basis for recovery in the case. English v. Myers, 142 Vt. 144, 454 A.2d 251, 1982 Vt. LEXIS 623 (1982).

Burden of proof.

A fundamental tenet of the comparative negligence doctrine in Vermont and other states is that defendant, in asserting such a defense, bears the burden of proving by a preponderance of the evidence that plaintiff was negligent and that such negligence was a proximate cause of the plaintiff’s injuries. Barber v. LaFromboise, 2006 VT 77, 180 Vt. 150, 908 A.2d 436, 2006 Vt. LEXIS 164 (2006).

Where the issue of comparative negligence is raised and the evidence supports it, the court must instruct that just as plaintiff bore the burden of proof in showing that defendant was negligent, the defendant bears the burden of proving by a preponderance of the evidence that plaintiff was also negligent, and that such negligence, if any, was a proximate cause of the injuries alleged. Barber v. LaFromboise, 2006 VT 77, 180 Vt. 150, 908 A.2d 436, 2006 Vt. LEXIS 164 (2006).

Even though the court expressly instructed that it was plaintiff’s burden to prove not only that defendant was negligent, but also “to prove by a preponderance of the evidence that the negligence was the proximate cause of his injuries,” it was prejudicial error for the court not to instruct that—for purposes of establishing plaintiff’s comparative negligence—it was defendant’s burden to prove that plaintiff’s negligence was a proximate cause of the accident, and reversal of the judgment was required. Barber v. LaFromboise, 2006 VT 77, 180 Vt. 150, 908 A.2d 436, 2006 Vt. LEXIS 164 (2006).

Burden of proof in negligence action is on defendant to show not only negligence on part of plaintiff forming part of the proximate cause of the accident, but that it exceeded any negligence on the part of the defendant. Frost v. Tisbert, 135 Vt. 345, 376 A.2d 748, 1977 Vt. LEXIS 625 (1977).

Where there is more than one cause concurring to produce an injury, and one such cause is charged against the plaintiff, the burden of proof on that issue is on the defendant. Lee v. Wheeler, 130 Vt. 624, 298 A.2d 851, 1972 Vt. LEXIS 326 (1972).

Evidence.

The trial court properly rejected plaintiff’s motion for judgment as a matter of law where the evidence, including defendant’s testimony that she observed plaintiff’s right-turn signal and plaintiff’s acknowledgment that he slowed as he entered the intersection, was sufficient to support the comparative negligence defense. Barber v. LaFromboise, 2006 VT 77, 180 Vt. 150, 908 A.2d 436, 2006 Vt. LEXIS 164 (2006).

Where plaintiff, who was injured in an automobile accident, was sitting partially upon the console which housed the shifting lever at the time the vehicle left the road, but no evidence was presented to show that plaintiff’s seating position obstructed the view of defendant who was driving the vehicle or interfered with her control over the driving mechanism, plaintiff was not contributorily negligent. Duncan v. Wescott, 142 Vt. 471, 457 A.2d 277, 1983 Vt. LEXIS 412 (1983).

Historical.

Since icy conditions were an obvious and necessary danger inherent in sport of skiing, ski area had no duty to warn plaintiff or take steps to eliminate ice, and summary judgment for ski area in personal injury action was appropriate. Nelson v. Snowridge, Inc., 818 F. Supp. 80, 1993 U.S. Dist. LEXIS 4990 (D. Vt. 1993).

Supreme Court would assume that issue of individual versus combined negligence was considered by the legislature and that the state of the law in other jurisdictions was a factor in this consideration. Stannard v. Harris, 135 Vt. 544, 380 A.2d 101, 1977 Vt. LEXIS 673 (1977).

Instructions.

Because there was no allegation of plaintiff’s negligence after she discovered the injury to her property, and no discrete damages allegedly attributable solely to plaintiff, the trial court should have instructed the jury on comparative negligence rather than on damages mitigation to respond to its claim of plaintiff’s negligence. Langlois v. Town of Proctor, 2014 VT 130, 198 Vt. 137, 113 A.3d 44, 2014 Vt. LEXIS 134 (2014).

Where a dog, known to its owner to be dangerous, bit another person, and evidence was presented from which jury could infer that person bitten had been contributorily negligent, and trial court correctly charged jury on negligence as basis for claim, and on contributory negligence, it was also necessary to instruct the jury to compare the negligence of the two parties. Carr v. Case, 135 Vt. 524, 380 A.2d 91, 1977 Vt. LEXIS 671 (1977).

Judgment notwithstanding the verdict in multi-party action.

Where jury verdict held that plaintiff was 48% negligent in causing collision and resulting injuries, the state 30% negligent and truck driver and his employer 22% negligent, following entry of judgment notwithstanding the verdict in favor of the state, trial court erred in granting judgment notwithstanding the verdict in favor of remaining defendants, based on a comparison of the fault of the remaining parties as determined by the jury; plaintiff was entitled to a new trial on the issue of liability between the remaining parties without consideration of the state’s negligence. McCormack v. State, 150 Vt. 443, 553 A.2d 566, 1988 Vt. LEXIS 178 (1988).

Negligence contributing to injury only.

A plaintiff’s negligence which does not contribute to the cause of the accident leading to the injury, but does contribute to the injury, may be considered by the jury in assessing damages. Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1985 U.S. Dist. LEXIS 23149 (D. Vt. 1985).

Negligence of both parties.

Comparative negligence requires the negligence of the plaintiff to be compared to the negligence of the defendant, and recovery is reduced according to the proportional amount of plaintiff’s negligence. Gilman v. Towmotor Corp., 160 Vt. 116, 621 A.2d 1260, 1992 Vt. LEXIS 209 (1992).

Under this section, a plaintiff can recover only if her own negligence contributed to no more than half the cause of the accident, and even then only in proportion to the amount of negligence attributed to defendant. (Per Morse, J., with one justice concurring and one justice concurring in the result.) Favreau v. Miller, 156 Vt. 222, 591 A.2d 68, 1991 Vt. LEXIS 47 (1991).

If jury finds culpable negligence on part of both parties, then doctrine of comparative negligence should be applied and any damages assessed on that basis. Tufts v. Wyand, 148 Vt. 528, 536 A.2d 541, 1987 Vt. LEXIS 544 (1987).

Nonuse of automobile seat belts.

Evidence regarding nonuse of automobile seat belts is admissible in comparative negligence cases. Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1985 U.S. Dist. LEXIS 23149 (D. Vt. 1985).

The question of whether nonuse of automobile seat belts constitutes negligence is one for the jury to decide in assessing damages. Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1985 U.S. Dist. LEXIS 23149 (D. Vt. 1985).

Plaintiff’s nonuse of an automobile seat belt, which results in aggravating the damages resulting from an accident, is subject to a mitigation of damages or an available consequences set-off. Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1985 U.S. Dist. LEXIS 23149 (D. Vt. 1985).

Particular cases.

In a skier’s negligence suit against a ski resort operator, a jury verdict in favor of the operator was upheld because a lift ticket was properly admitted, the District Court was well within its discretion in refusing to allow any direct reference to the insurance industry during cross-examination of an expert, the District Court did not abuse its discretion in refusing to permit a full hour for the skier’s counsel to question the venire panel, and the District Court did not err by rejecting the skier’s challenge for cause of a prospective juror. Taylor v. Stratton Corp., 514 Fed. Appx. 68, 2013 U.S. App. LEXIS 5351 (2d Cir. 2013).

There was serious doubt whether this section would apply where defendants were not joined in same action, one defendant was found liable under the dram shop statute rather than in a negligence cause of action, and there was no allegation that plaintiff was negligent. Plante v. Johnson, 152 Vt. 270, 565 A.2d 1346, 1989 Vt. LEXIS 169 (1989).

Proximate cause.

Contributory negligence does not bar or reduce recovery unless it is affirmatively demonstrated that it proximately caused the accident. Duncan v. Wescott, 142 Vt. 471, 457 A.2d 277, 1983 Vt. LEXIS 412 (1983).

Contributory negligence does not bar or reduce recovery unless it is the proximate cause, or a part thereof, of the accident. Lee v. Wheeler, 130 Vt. 624, 298 A.2d 851, 1972 Vt. LEXIS 326 (1972).

Questions for trier of fact.

In negligence action by customer who, while leaving, fell down front steps of store, which claimed plaintiff’s own negligence barred her recovery, whether interior and steps of store were negligently arranged, and whether plaintiff’s conduct was negligent, and a comparison of any negligence found in the parties, was for the jury, and where the verdict was not shown to be unreasonable, a product of jury misconduct or improperly influenced by passion or prejudice, it would stand. Shea v. Peter Glen Shops, Inc., 132 Vt. 317, 318 A.2d 177, 1974 Vt. LEXIS 340 (1974).

Res ipsa loquitur.

Contributory negligence does not bar recovery in a case brought under a res ipsa loquitur theory. Cyr v. Green Mountain Power Corp., 145 Vt. 231, 485 A.2d 1265, 1984 Vt. LEXIS 582 (1984).

If a plaintiff presents evidence which satisfies the elements of res ipsa loquitur, even in the face of conflicting evidence, the jury must be given the opportunity to infer negligence on the part of the defendant; if the jury finds defendant negligent, then it must compare that negligence with any negligence it finds was committed by plaintiff. Cyr v. Green Mountain Power Corp., 145 Vt. 231, 485 A.2d 1265, 1984 Vt. LEXIS 582 (1984).

Sports.

The sports participation acceptance of inherent risk provision set forth in section 1037 of this title extends to personal injuries arising from participation in any sport, without regard to the comparative negligence rules of this section. Dillworth v. Gambardella, 970 F.2d 1113, 1992 U.S. App. LEXIS 17333 (2d Cir. 1992).

Cited.

Cited in Zinn v. Tobin Packing Co., 140 Vt. 410, 438 A.2d 1110, 1981 Vt. LEXIS 628 (1981); Eagle Star Insurance Co. of America v. Metromedia, Inc., 578 F. Supp. 184, 1984 U.S. Dist. LEXIS 20753 (D. Vt. 1984); Hardy v. Berisha, 144 Vt. 130, 474 A.2d 93, 1984 Vt. LEXIS 422 (1984); Berisha v. Hardy, 144 Vt. 136, 474 A.2d 90, 1984 Vt. LEXIS 426 (1984); Grazulis v. Curtis, 149 Vt. 371, 543 A.2d 1324, 1988 Vt. LEXIS 39 (1988); Vince v. Wilson, 151 Vt. 425, 561 A.2d 103, 1989 Vt. LEXIS 81 (1989); Smith v. Gainer, 153 Vt. 442, 571 A.2d 70, 1990 Vt. LEXIS 6 (1990); Jewell v. Dyer, 154 Vt. 486, 578 A.2d 125, 1990 Vt. LEXIS 95 (1990); Dillworth v. Gambardella, 776 F. Supp. 170, 1991 U.S. Dist. LEXIS 15594 (D. Vt. 1991), Nelson v. Snowridge, Inc., 818 F. Supp. 80, 1993 U.S. Dist. LEXIS 4990 (D. Vt. 1993); Estate of Kelly v. Moguls, Inc., 160 Vt. 531, 632 A.2d 360, 1993 Vt. LEXIS 79 (1993); Estate of Frant v. Haystack Group, Inc., 162 Vt. 11, 641 A.2d 765, 1994 Vt. LEXIS 44 (1994); Cooper v. Burnor, 170 Vt. 583, 750 A.2d 974, 1999 Vt. LEXIS 409 (1999); Darling v. Central Vt. Pub. Serv. Corp., 171 Vt. 565, 762 A.2d 826, 2000 Vt. LEXIS 255 (2000); Bazzano v. Killington Country Village, Inc., 2003 VT 46, 175 Vt. 534, 830 A.2d 24, 2003 Vt. LEXIS 90 (2003); Wisdom v. Tjx Cos., 410 F. Supp. 2d 336, 2006 U.S. Dist. LEXIS 3166 (D. Vt. 2006) (mem.).

Law Reviews —

Contribution among joint tortfeasors, see 7 Vt. L. Rev. 337 (1982).

§ 1037. Acceptance of inherent risks.

Notwithstanding the provisions of section 1036 of this title, a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary.

HISTORY: Added 1977, No. 119 (Adj. Sess.), § 2, eff. Feb. 7, 1978.

History

Revision note—

Reference to “Title 12, section 1036” was changed to “section 1036 of this title” to conform reference to V.S.A. style.

Legislative intent. 1977, No. 119 (Adj. Sess.), § 1, eff. Feb. 7, 1978, provided: “Since 1951, the law relating to liability of operators of ski areas in connection with downhill skiing injuries has been perceived to be governed by the doctrine of volenti non fit injuria as set forth in the case of Wright v. Mt. Mansfield Lift, Inc., 96 F. Supp. 786, decided by the United States District Court for Vermont. In 1976, in the case of Leopold v. Okemo Mountain, Inc., 420 F. Supp. 781, decided also by the United States District Court for Vermont, the doctrine of assumption of risk was held to be applicable in a downhill skiing injury case, despite the adoption of a comparative negligence statute by the Vermont General Assembly in 1970. In 1977, in the case of Sunday v. Stratton Corporation, the Superior Court for Chittenden County of the state of Vermont ruled that the defense of assumption of risk was inappropriate in a comparative negligence case involving a downhill skiing injury.

“It is a purpose of this act [which added this section and amended section 707(a) of Title 31] to state the policy of this state which governs the liability of operators of ski areas with respect to skiing injury cases, including those resulting from both alpine and nordic skiing, by affirming the principles of law set forth in Wright v. Mt. Mansfield Lift, Inc., and Leopold v. Okemo Mountain, Inc., which established that there are inherent dangers to be accepted by skiers as a matter of law.”

ANNOTATIONS

Generally.

The sports injury statute states that a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary; whether a ski area’s use of wooden corral posts was an obvious and necessary risk should be a threshold question of fact decided by a jury. Estate of Frant v. Haystack Group, Inc., 162 Vt. 11, 641 A.2d 765, 1994 Vt. LEXIS 44 (1994).

Sports participants accept the risks of inherent dangers obvious and necessary to participation in the sport. Dillworth v. Gambardella, 970 F.2d 1113, 1992 U.S. App. LEXIS 17333 (2d Cir. 1992).

Burden of proof.

Trial court did not commit plain error in assigning to plaintiff the burden of proving whether or not this section applied to his injury. Mahdessian v. Stratton Corp., 210 F.3d 355, 2000 U.S. App. LEXIS 13491 (2d Cir. 2000).

Construction.

Although a sentence in an arbitration agreement stating that by signing the agreement the participant agreed to assume all risks of participating in a zip-line adventure course, including those caused by the operator’s negligence, the agreement would not be enforced on public policy grounds, portions of the arbitration provision remained in effect, and the zip-line park operator was free to assert assumption of risk as a defense. Littlejohn v. Timberquest Park at Magic, LLC, 116 F. Supp. 3d 422, 2015 U.S. Dist. LEXIS 94592 (D. Vt. 2015).

This section applied even though danger to which skier was exposed resulted from a man-made obstacle. Mahdessian v. Stratton Corp., 210 F.3d 355, 2000 U.S. App. LEXIS 13491 (2d Cir. 2000).

The language of this provision, as reflected in season pass to ski resort, would not bar jury from finding ski resort liable for injuries caused by negligent failure to alert plaintiff of danger. Pitasi v. Stratton Corp., 968 F.2d 1558, 1992 U.S. App. LEXIS 16051 (2d Cir. 1992).

This section is applicable in suit by one skier against another for injuries caused in collision; this section is not limited to actions against ski resorts. Dillworth v. Gambardella, 970 F.2d 1113, 1992 U.S. App. LEXIS 17333 (2d Cir. 1992).

This section extends to personal injuries arising from participation in any sport, without regard to the comparative negligence statute set forth in section 1036 of this title, and without limitation as to the identity of the defendant. Dillworth v. Gambardella, 970 F.2d 1113, 1992 U.S. App. LEXIS 17333 (2d Cir. 1992).

As long as the risk, in this case collision among skiers, is found to be obvious and necessary, then this section will apply to shield the defendant by removing any duty owed to the plaintiff. Dillworth v. Gambardella, 776 F. Supp. 170, 1991 U.S. Dist. LEXIS 15594 (D. Vt. 1991), aff'd, 970 F.2d 1113, 1992 U.S. App. LEXIS 17333 (2d Cir. 1992).

Jury instruction.

Under this section, a collision between skiers may be an inherent, obvious, and necessary danger so that a jury may be instructed as to assumption of risk. Dillworth v. Gambardella, 970 F.2d 1113, 1992 U.S. App. LEXIS 17333 (2d Cir. 1992).

Summary judgment denied.

In this failure to warn and wrongful death action, dismissal based on assumption of risk was not warranted because whether risk was readily obvious, or involved more specialized knowledge, was matter in dispute and may be explored during discovery. Cernansky v. Lefebvre, 88 F. Supp. 3d 299, 2015 U.S. Dist. LEXIS 11367 (D. Vt. 2015).

Defendants were not entitled to summary judgment because exculpatory releases signed by the contestant were void as contrary to public policy, insofar as they released defendants from liability for negligence and under Vermont’s sports injury statute, 12 V.S.A. § 1037 , the court could not as a matter of law determine that the jump was an obvious and necessary danger of dual slalom bicycle racing. Umali v. Mount Snow, Ltd., 247 F. Supp. 2d 567, 2003 U.S. Dist. LEXIS 3463 (D. Vt. 2003).

Cited.

Cited in Hay v. Medical Center Hospital of Vermont, 145 Vt. 533, 496 A.2d 939, 1985 Vt. LEXIS 335 (1985); Spencer v. Killington, Ltd., 167 Vt. 137, 702 A.2d 35, 1997 Vt. LEXIS 267 (1997).

Law Reviews —

Vermont sports injury liability statute; assumption of risk and the injured skier after Sunday v. Stratton Corp., see 3 Vt. L. Rev. 129 (1978).

§ 1038. Skiing off designated ski trails; collision; duty to report; recovery for rescue expenses.

  1. Use of ski area facilities.   No ski area, its owners, employees, or agents shall be held responsible for ensuring the safety of or for damages, including injury or death, resulting to persons who utilize the facilities of a ski area to access terrain outside open and designated ski trails. Ski areas shall not be liable for damages, including injury or death, to persons who venture beyond such open and designated ski trails.
  2. Collision at a ski area.
    1. Any person who is involved in a collision with a skier at a ski area which results in bodily injury to any party to the collision has a duty to provide his or her name and local and permanent address to the other parties to the collision and shall proceed to the ski area first aid facility and provide that information to the ski area first aid personnel.
    2. No ski area, its employees, or agents shall be held responsible for ensuring compliance with these duties by any person, nor shall it be liable in any way for a failure to obtain such person’s name or address.
  3. Civil action to recover.   A person who uses the facilities of a ski area to access terrain outside the open and designated ski trails shall be liable in a civil action brought by any person, including a ski area, rescue organization, municipality, or the State, to recover expenses incurred to provide rescue, medical, or other services to such person for circumstances or injuries which resulted from such use. The entity seeking to recover may also recover reasonable attorney’s fees and court costs. No ski area, its owners, agents, or employees, individual, or entity, municipal or otherwise, shall be held liable for any acts or omissions taken in the course of such rescue operations unless such act or omission constitutes gross negligence.

HISTORY: Added 1993, No. 233 (Adj. Sess.), § 88, eff. June 21, 1994.

CROSS REFERENCES

Limitation of actions for injuries sustained while skiing, see § 513 of this title.

§ 1039. Equine activities; acceptance of inherent risks.

  1. As used in this section:
    1. “Equine” means a horse, pony, mule, or donkey.
    2. “Equine activity” includes:
      1. Equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any of the equine disciplines, including dressage, hunter and jumper horse shows, Grand Prix jumping, three-day events, combined training, rodeos, riding, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding, gymkhana games, and hunting;
      2. Equine training or teaching activities, or both;
      3. Rides, trips, or hunts.
    3. “Equine activity sponsor” means an individual, group, club, organized camp, club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for an equine activity, including pony clubs; 4-H clubs; hunt clubs; riding clubs; school and college-sponsored classes, programs, and activities; therapeutic riding programs; stable and farm owners and operators, instructors, and promoters; or equine facilities, including farms, stables, clubhouses, pony ride strings, fairs, and arenas at which the activity is held.
    4. “Participant” means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee or other consideration is paid to participate in the equine activity.
  2. No person shall be liable for an injury to, or the death of, a participant resulting from the inherent risks of equine activities, insofar as those risks are necessary to the equine activity and obvious to the person injured.
    1. An equine activity sponsor may post and maintain signs which contain the warning notice specified in this subsection. Such signs shall be placed in a clearly visible location in the proximity of the equine activity. The warning notice shall appear on the sign in black letters, with each letter to be a minimum of one inch in height. (c) (1) An equine activity sponsor may post and maintain signs which contain the warning notice specified in this subsection. Such signs shall be placed in a clearly visible location in the proximity of the equine activity. The warning notice shall appear on the sign in black letters, with each letter to be a minimum of one inch in height.
    2. Every written contract entered into by an equine activity sponsor for the providing of professional services, instruction, or the rental of equipment or tack or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the equine professional’s business, may contain in clearly readable print the warning notice.
    3. The signs and contracts described in this subsection shall contain the following warning notice:

      WARNING

      Under Vermont Law, an equine activity sponsor is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities that are obvious and necessary, pursuant to 12 V.S.A. § 1039 .

HISTORY: Added 1995, No. 136 (Adj. Sess.), § 2.

History

Applicability of enactment.

1995, No. 136 (Adj. Sess.), § 4, provided: “This act [which added this section] shall apply only to actions arising from acts or omissions which occur on or after the effective date of this act [July 1, 1996].”

Legislative purpose and policy. 1995, No. 136 (Adj. Sess.), § 1, provided:

“(1) Equine activities are important to the economy and culture of the state. It is appropriate to provide a sound legal basis for determining when equine activity sponsors should be liable for injuries suffered from those activities, realizing that equines are prone to behave in ways that may result in injury, harm or death to persons involved in equine activities.

“(2) It is the policy of this state that no person shall be liable for damages sustained by another solely as a result of risks inherent in equine activity, insofar as those risks are necessary to the equine activity and obvious to the person injured.

“(3) It is the policy of this state that persons responsible for equines, or responsible for the safety of those engaged in equine activity, whose negligence proximately causes injury to a person engaged in those activities, is liable for that injury in accordance with other applicable law.”

§ 1040. Eminent domain; restrictions on use; conferring of private benefit; economic development.

  1. Notwithstanding any other provision of law, no governmental or private entity may take private property through the use of eminent domain if the taking is primarily for purposes of economic development, unless the property is taken pursuant to 24 V.S.A. chapter 85 (urban renewal).
  2. This section shall not affect the authority of an entity authorized by law to use eminent domain for the following purposes:
    1. transportation projects, including highways, airports, and railroads;
    2. public utilities, including entities engaged in the generation, transmission, or distribution of electric, gas, sewer and sewage treatment, or communication services;
    3. public property, buildings, hospitals, and parks; or
    4. water, wastewater, stormwater, flood control, drainage, or waste disposal projects.

HISTORY: Added 2005, No. 111 (Adj. Sess.), § 1.

§ 1041. Exercise of rights to free speech and to petition government for redress of grievances; special motion to strike.

  1. A defendant in an action arising from the defendant’s exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the U.S. or Vermont Constitution may file a special motion to strike under this section.
  2. A special motion to strike under this section shall be filed with the court and served on all parties not more than 60 days after the filing of the complaint. A party may file a response to the motion not more than 15 days after the motion is served on the party. The court may extend the time limits of this subsection for good cause shown.
    1. The filing of a special motion to strike under this section shall stay all discovery proceedings in the action. Except as provided in subdivision (2) of this subsection, the stay of discovery shall remain in effect until the court rules on the special motion to strike. (c) (1) The filing of a special motion to strike under this section shall stay all discovery proceedings in the action. Except as provided in subdivision (2) of this subsection, the stay of discovery shall remain in effect until the court rules on the special motion to strike.
    2. The court, on motion and for good cause shown, may order that limited discovery be conducted for the purpose of assisting its decision on the special motion to strike.
  3. The court shall hold a hearing on a special motion to strike not more than 30 days after service of the motion unless good cause exists for an extension.
    1. The court shall grant the special motion to strike, unless the plaintiff shows that: (e) (1) The court shall grant the special motion to strike, unless the plaintiff shows that:
      1. the defendant’s exercise of his or her right to freedom of speech and to petition was devoid of any reasonable factual support and any arguable basis in law; and
      2. the defendant’s acts caused actual injury to the plaintiff.
    2. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
    1. If the court grants the special motion to strike, the court shall award costs and reasonable attorney’s fees to the defendant. If the court denies the special motion to strike and finds the motion is frivolous or is intended solely to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to the plaintiff. (f) (1) If the court grants the special motion to strike, the court shall award costs and reasonable attorney’s fees to the defendant. If the court denies the special motion to strike and finds the motion is frivolous or is intended solely to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to the plaintiff.
    2. Neither the court’s ruling on the special motion to strike nor the fact that it made such a ruling shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by the ruling.
  4. An order granting or denying a special motion to strike shall be appealable in the same manner as an interlocutory order under Rule 5 of the Vermont Rules of Appellate Procedure.
  5. This section shall not apply to any enforcement action or criminal proceeding brought by the State of Vermont or any political subdivision thereof.
  6. As used in this section, “the exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the U.S. or Vermont Constitution” includes:
    1. any written or oral statement made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
    2. any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
    3. any written or oral statement concerning an issue of public interest made in a public forum or a place open to the public; or
    4. any other statement or conduct concerning a public issue or an issue of public interest which furthers the exercise of the constitutional right of freedom of speech or the constitutional right to petition the government for redress of grievances.

HISTORY: Added 2005, No. 134 (Adj. Sess.), § 2.

History

Revision note

—2006. This section was originally enacted as section 1040 of this title and was redesignated to avoid conflict with section 1040 enacted by 2005, No. 111 (Adj. Sess.), § 1.

Legislative findings. 2005, No. 134 (Adj. Sess.), § 1 provides: “The general assembly finds:

“(1) There has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and freedom to petition government for the redress of grievances.

“(2) It is in the public interest to encourage continued participation in matters of public significance, and this participation should not be chilled through abuse of the judicial process.”

ANNOTATIONS

Appeal.

Appellate court lacked jurisdiction over a district court order which ruled on the merits of defendants’ special motions to strike plaintiffs’ defamation action under Vermont’s anti-SLAPP statute because it did not fall within the collateral order doctrine, as it involved fact-related legal issues. Ernst v. Carrigan, 814 F.3d 116, 2016 U.S. App. LEXIS 3024 (2d Cir. 2016).

Attorney’s fees.

Plain language “shall award” in the anti-SLAPP (strategic lawsuit against public participation) statute indicates that the award of fees is mandatory when a motion to strike is granted. When a statute requires an award of attorney’s fees, it is not within the trial court’s discretion to determine whether to award such fees; the trial court does, however, have discretion in determining the amount of an award and the court will disturb it only if the court has abused that discretion. Cornelius v. Chronicle, Inc., 2019 VT 4, 209 Vt. 405, 206 A.3d 710, 2019 Vt. LEXIS 5 (2019).

Anti-SLAPP (strategic lawsuit against public participation) statute does not limit recovery to those fees that are not reimbursed by insurance; therefore, the trial court erred in limiting the award of attorney’s fees to the amount of defendant’s litigation-insurance deductible. The plain language of the statute does not support this construction in that the statute contains no provision limiting the recovery of attorney’s fees to those amounts that were incurred directly by the defendant as opposed to by a third party; moreover, this construction is at odds with the remedial purpose of the statute. Cornelius v. Chronicle, Inc., 2019 VT 4, 209 Vt. 405, 206 A.3d 710, 2019 Vt. LEXIS 5 (2019).

Construction.

Automatic stay provision of Vermont’s anti-SLAPP statute could not apply to plaintiffs’ federal claim, but this did not prevent its application to her state law claim. Jenkins v. Miller, 2017 U.S. Dist. LEXIS 160793 (D. Vt. Sept. 29, 2017).

Plaintiffs’ state law claim for intentional interference with custody did not arise from protected speech but rather, arose from a defendant’s furtive departure from the United States immediately before she would have been obligated to surrender the child to plaintiff pursuant to a court order, and the claims asserted against the remaining defendants centered on the support that they allegedly provided to her to carry out this wrongful conduct. The fact that some of the activities that they engaged in might constitute protected speech in some contexts did not salvage the anti-SLAPP claim. Jenkins v. Miller, 2017 U.S. Dist. LEXIS 160793 (D. Vt. Sept. 29, 2017).

Although this statute does not define “the complaint,” it is interpreted to include an amended complaint; otherwise, anti-free-speech claims could be omitted from the original complaint and then added after the sixty-day period ran. Ernst v. Kauffman, 50 F. Supp. 3d 553, 2014 U.S. Dist. LEXIS 141394 (D. Vt. 2014), app. dismissed, 814 F.3d 116, 2016 U.S. App. LEXIS 3024 (2d Cir. 2016).

Anti-Strategic Lawsuit Against Public Participation statute should be construed as limited in scope and great caution should be exercised in its interpretation. Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129, 200 Vt. 465, 133 A.3d 836, 2015 Vt. LEXIS 110 (2015).

Evidence.

Although defendants’ affidavits could be considered in connection with their motions to strike under Vermont’s anti-strategic lawsuits against public participation (SLAPP) statute, they could not be considered for purposes of their motion to dismiss for failure to state a claim. Jenkins v. Miller, 2017 U.S. Dist. LEXIS 160793 (D. Vt. Sept. 29, 2017).

When parts of an anonymous letter claiming a couple were, inter alia, dishonest, felons, and drug addicts, were read at a meeting of the town selectboard, they qualified as the exercise of free speech giving rise to the right to file a special motion to strike; the couple presented no evidence of what portions were read aloud and they did not establish that the letter was entirely false. Ernst v. Kauffman, 50 F. Supp. 3d 553, 2014 U.S. Dist. LEXIS 141394 (D. Vt. 2014), app. dismissed, 814 F.3d 116, 2016 U.S. App. LEXIS 3024 (2d Cir. 2016).

Where an Internet publication was published in a public forum, and the publication was in furtherance of students’ right to free speech and involved speech concerning a public issue, the students and a college have met their threshold burden of proving that their conduct is protected by the anti-SLAPP statute. Haywood v. St. Michael's College, 2012 U.S. Dist. LEXIS 177468 (D. Vt. Dec. 14, 2012), aff'd, 536 Fed. Appx. 123, 2013 U.S. App. LEXIS 21116 (2d Cir. 2013).

Conduct meets all three definitions for the anti-SLAPP statute because (1) the plaintiff, as a candidate for President, was in the public eye; (2) the plaintiff had the potential to affect large numbers of people with his candidacy; and (3) the election, as well as each issue area addressed in an Internet article posted by certain college students was a topic of widespread public interest. Haywood v. St. Michael's College, 2012 U.S. Dist. LEXIS 177468 (D. Vt. Dec. 14, 2012), aff'd, 536 Fed. Appx. 123, 2013 U.S. App. LEXIS 21116 (2d Cir. 2013).

Mootness.

Although the trial court dismissed plaintiff’s suit against defendant on other grounds, defendant was still entitled to relief in the form of attorney’s fees if successful in dismissing plaintiff’s suit under the anti-Strategic Lawsuit Against Public Participation statute. Accordingly, defendant was entitled to a ruling on its motion to strike, and the motion was not moot. Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129, 200 Vt. 465, 133 A.3d 836, 2015 Vt. LEXIS 110 (2015).

Public interest.

After an anonymous letter was distributed claiming a couple were, inter alia, dishonest, felons, and drug addicts, the couple’s suit raising tort claims was subject to a motion to strike, which failed as to when the letter was sent to residents and handed out at a store because, even if the couple were in the public eye due to participation in zoning and school issues, the letter was insufficiently connected to their role in the issues and did not itself concern a public issue or matter of public interest. Ernst v. Kauffman, 50 F. Supp. 3d 553, 2014 U.S. Dist. LEXIS 141394 (D. Vt. 2014), app. dismissed, 814 F.3d 116, 2016 U.S. App. LEXIS 3024 (2d Cir. 2016).

Public issue.

Plaintiff’s claims against defendant newspaper were properly struck under the anti-SLAPP (strategic lawsuit against public participation) statute, as the articles published by defendant were exercises of free speech and connected to a public issue because they concerned public safety, law enforcement activity, possible criminal behavior, and the reporting of arrests, and the statements had reasonable factual support, including a state police safety bulletin, social media postings by plaintiff, and a reporter’s personal observations. Cornelius v. Chronicle, Inc., 2019 VT 4, 209 Vt. 405, 206 A.3d 710, 2019 Vt. LEXIS 5 (2019).

Matters connected to law enforcement investigation, public safety, and crime in the community are of public concern for purposes of the anti-SLAPP (strategic lawsuit against public participation) statute. Under the First Amendment, the public and the media have a constitutional right of access to information relating to the activities of law enforcement officers and to information concerning crime in the community. Cornelius v. Chronicle, Inc., 2019 VT 4, 209 Vt. 405, 206 A.3d 710, 2019 Vt. LEXIS 5 (2019).

“In connection with a public issue” requirement of the anti-Strategic Lawsuit Against Public Participation (SLAPP) statute must be met in any motion to strike under the statute, regardless of the type of activity. The Court reaches this result as a matter of statutory interpretation in order to implement the intent of the legislature in adopting the anti-SLAPP remedy and keeping that remedy within the bounds of the paradigm on which it was based. Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129, 200 Vt. 465, 133 A.3d 836, 2015 Vt. LEXIS 110 (2015).

Because the “in connection with a public issue” requirement of the anti-Strategic Lawsuit Against Public Participation statute had to be met in any motion to strike under the statute, and the divorce for which defendant business appraiser offered expert testimony was not a matter of public significance, the trial court’s failure to rule on its motion to strike was harmless error. Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129, 200 Vt. 465, 133 A.3d 836, 2015 Vt. LEXIS 110 (2015).

§ 1042. Certificate of merit.

  1. No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after February 1, 2013, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action files a certificate of merit simultaneously with the filing of the complaint. In the certificate of merit, the attorney or plaintiff shall certify that he or she has consulted with a health care provider qualified pursuant to the requirements of Rule 702 of the Vermont Rules of Evidence and any other applicable standard, and that, based on the information reasonably available at the time the opinion is rendered, the health care provider has:
    1. described the applicable standard of care;
    2. indicated that based on reasonably available evidence there is a reasonable likelihood that the plaintiff will be able to show that the defendant failed to meet that standard of care; and
    3. indicated that there is a reasonable likelihood that the plaintiff will be able to show that the defendant’s failure to meet the standard of care caused the plaintiff’s injury.
  2. A plaintiff may satisfy this requirement through multiple consultations that collectively meet the requirements of subsection (a) of this section.
  3. A plaintiff must certify to having consulted with a health care provider as set forth in subsection (a) of this section with respect to each defendant identified in the complaint.
  4. Upon petition to the clerk of the court where the civil action will be filed, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by this section.
  5. The failure to file the certificate of merit as required by this section shall be grounds for dismissal of the action without prejudice, except in the rare instances in which a court determines that expert testimony is not required to establish a case for medical malpractice.
  6. The requirements set forth in this section shall not apply to claims where the sole allegation against the health care provider is failure to obtain informed consent.

HISTORY: Added 2011, No. 171 (Adj. Sess.), § 24a, eff. Feb. 1, 2013.

History

Redesignation of section. This section was originally enacted as § 1051 of this title but for purposes of consistency was redesignated as § 1042.

ANNOTATIONS

Constitutionality.

Statute governing certificates of merit in medical malpractice cases did not violate the Common Benefits Clause of the Vermont Constitution, as the situation experienced by plaintiff, whose case would be dismissed because he had failed to file the certificate with his complaint and was now time-barred, and similar litigants was created by their own inadvertence, their decision on when to file the action, and the operation of the applicable statute of limitations. Furthermore, both the certificate statute and the statute of limitations were reasonably related to legitimate governmental purposes. Quinlan v. Five-town Health Alliance, Inc., 2018 VT 53, 207 Vt. 503, 192 A.3d 390, 2018 Vt. LEXIS 53 (2018).

Amendment of complaint to add.

Legislature enacted the certificate-of-merit statute with a clear understanding that the purpose of the simultaneous-filing requirement was to ensure that claims against health care providers had been adequately investigated and determined to have merit by a qualified expert before they were filed. Thus, the trial court properly denied plaintiff’s motion to amend her complaint to add a certificate of merit. McClellan v. Haddock, 2017 VT 13, 204 Vt. 252, 166 A.3d 579, 2017 Vt. LEXIS 14 (2017).

Application.

Requirement that a certificate of merit in a medical malpractice case be filed simultaneously with the complaint is mandatory and demands strict compliance. When a certificate of merit is entirely omitted from the original complaint, dismissal is necessary to effectuate the statutory purpose of screening out frivolous claims at the outset. Quinlan v. Five-town Health Alliance, Inc., 2018 VT 53, 207 Vt. 503, 192 A.3d 390, 2018 Vt. LEXIS 53 (2018).

It is irrelevant whether the defendants suffered prejudice due to a plaintiff’s failure to file the certificate of merit in a medical malpractice case. The filing requirement must be strictly complied with, and the failure to do so is the fault of the plaintiff, not the defendants. Quinlan v. Five-town Health Alliance, Inc., 2018 VT 53, 207 Vt. 503, 192 A.3d 390, 2018 Vt. LEXIS 53 (2018).

Failure to file a certificate of merit does not divest the court of its general power to hear a medical malpractice action. Thus, the dismissal of plaintiff’s case for failing to file a certificate of merit was not a dismissal for lack of subject matter jurisdiction, and plaintiff’s claim was not protected by the statute governing a new action after the failure of the original action. Quinlan v. Five-town Health Alliance, Inc., 2018 VT 53, 207 Vt. 503, 192 A.3d 390, 2018 Vt. LEXIS 53 (2018).

Because the only injury alleged in the complaint was the decedent’s death, which occurred after the operative date of the certificate-of-merit requirement, and the only basis for recovery alleged was the wrongful death statute, the certificate-of-merit statute applied. McClellan v. Haddock, 2017 VT 13, 204 Vt. 252, 166 A.3d 579, 2017 Vt. LEXIS 14 (2017).

Deficient certificate.

Dismissal may not necessarily be required where the plaintiff files a timely certificate of merit that nevertheless fails in some particular to meet the requirements of the statute governing certificates of merit in medical malpractice cases, and where allowing an amendment to correct the deficiency—rather than ordering dismissal—would not undermine the legislative purpose. Quinlan v. Five-town Health Alliance, Inc., 2018 VT 53, 207 Vt. 503, 192 A.3d 390, 2018 Vt. LEXIS 53 (2018).

Exceptions.

It is clear from the language of the statute, the purpose of the certificate of merit (COM) requirement in medical malpractice cases, and Vermont case law that a court cannot exempt a plaintiff from the COM requirement unless it affirmatively determines from the four corners of the initial complaint that expert testimony is unnecessary. Bittner v. Centurion of Vermont, 2021 VT 73, — Vt. —, 264 A.3d 850, 2021 Vt. LEXIS 97 (Vt. 2021).

In a case where plaintiff did not file a certificate of merit with her medical malpractice claim, the trial court did not find that the case presented a “rare instance” in which expert testimony was not required. It therefore erred in allowing the claim to proceed. Bittner v. Centurion of Vermont, 2021 VT 73, — Vt. —, 264 A.3d 850, 2021 Vt. LEXIS 97 (Vt. 2021).

Medical malpractice claim involving the decedent’s suicide while in the custody of the Department of Corrections was not a “rare instance” where expert testimony was unnecessary; thus, because no certificate of merit was filed simultaneously with the complaint, the medical malpractice claim had to be dismissed. Whether defendants’ evaluations and treatment of the decedent constituted medical malpractice turned on the standard of care for mental health professionals treating individuals with depression and suicidal ideation, which were not matters of common knowledge and experience; likewise, plaintiff’s allegation that defendants committed medical malpractice by failing to include a mental health alert in a transfer note involved complex psychiatric and medical issues. Bittner v. Centurion of Vermont, 2021 VT 73, — Vt. —, 264 A.3d 850, 2021 Vt. LEXIS 97 (Vt. 2021).

Extension of limitations period.

Phrase “where the civil action will be filed” in the certificate-of-merit statute plainly requires that an extension request precede the filing of the complaint, which is consistent with the legislative purpose of requiring that plaintiffs conduct their investigation and obtain the requisite expert opinion before subjecting defendants to the burdens of litigation. Moreover, even if the statute could be construed to authorize an extension request after the filing of a complaint, the trial court here could not have granted a ninety-day extension of a statute of limitation that had already expired when the motion to amend was filed. McClellan v. Haddock, 2017 VT 13, 204 Vt. 252, 166 A.3d 579, 2017 Vt. LEXIS 14 (2017).

Subchapter 3. Pleadings; Parties and Causes of Action

§§ 1071-1075. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

§ 1076. Release of claim for personal injury or death—disavowal of agreement.

An agreement entered into by a person or his or her legal representative within 15 days after personal injury to him or her or his or her death or personal injury or death of his or her spouse or child, which may adversely affect his or her estate’s right to compensation for the personal injury or death, may be disavowed by such person or his or her legal representative within three years after making the agreement. When such an agreement has been disavowed, it may not be used in whole or in part in any subsequent proceeding.

HISTORY: 1961, No. 269 , § 1, eff. Aug. 1, 1961.

ANNOTATIONS

Compliance with requirements.

Statutory remedy allowing disavowal of releases for claims of personal injury or death was unavailing because the first time plaintiff invoked the statute-during appeal-fell outside the three-year limitations period, and plaintiff had not returned the consideration as required. Maglin v. Tschannerl, 174 Vt. 39, 800 A.2d 486, 2002 Vt. LEXIS 134 (2002).

The limitations period or the requirements for disavowal of releases for claims of personal injury or death set out by the statute, will not be altered where plaintiff has made no effort to comply with them. Maglin v. Tschannerl, 174 Vt. 39, 800 A.2d 486, 2002 Vt. LEXIS 134 (2002).

Timing.

Because the Legislature has already made the value judgment that releases entered into within fifteen days may be set aside for that fact alone, as long as the release is rescinded within three years and the consideration returned, to allow plaintiff, who entered into a release on the tenth day following her accident, to rescind on this basis alone or to allow it to weigh heavily in determining unconscionability, would simply be circumventing the terms of the statute. Maglin v. Tschannerl, 174 Vt. 39, 800 A.2d 486, 2002 Vt. LEXIS 134 (2002).

§ 1077. Tender of compensation.

When an agreement is disavowed, the claimant or his or her legal representative shall tender any consideration received to the person who paid or delivered the same.

HISTORY: 1961, No. 269 , § 2, eff. Aug. 1, 1961.

ANNOTATIONS

Cited.

Cited in Maglin v. Tschannerl, 174 Vt. 39, 800 A.2d 486, 2002 Vt. LEXIS 134 (2002).

Subchapter 4. Pleadings; Amended and Supplemental

§§ 1131, 1132. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 1131, 1132. Former §§ 1131, 1132 related to amendments.

Former § 1131 was derived from V.S. 1947, § 1617; P.L. § 1578; G.L. § 1795; 1915, No. 90 , § 3; P.S. § 1497; V.S. § 1147; R.L. § 906; G.S. 30, § 40; R.S. 25, § 15; R. 1797, p. 99, § 51; R. 1787, p. 28.

Former § 1132 was derived from V.S. 1947, § 1618; P.L. § 1579; G.L. § 1796; 1915, No. 1 , § 213; 1915, No. 90 , § 4; 1912, No. 91 ; 1910, No. 84 ; P.S. § 1498; V.S. § 1148; 1890, No. 25 , § 1; R.L. § 907; G.S. 30, § 41; 1851, No. 8 ; R.S. 25, § 16; R. 1797, p. 99, § 51; R. 1787, p. 28.

§ 1133. Repealed. 1959, No. 261, § 68.

History

Former § 1133. Prior to repeal former § 1133 was derived from V.S. 1947, § 1625; P.L. § 1586; G.L. § 1803; P.S. § 1506; V.S. § 1155; R.L. § 914; 1867, No. 5 .

Subchapter 5. Practice

§ 1161. Repealed. 1967, No. 311 (Adj. Sess.), § 3, eff. March 22, 1968.

History

Former § 1161. Prior to repeal former § 1161 was derived from V.S. 1947, § 1627; P.L. § 1588; G.L. § 1805; 1917, No. 254 , § 1769; 1915, No. 90 , § 18.

Repealed section is now covered by § 1 of this title.

Chapter 29. Depositions and Discovery

Subchapter 1. Depositions

§§ 1231-1247. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 1231-1247. Former §§ 1231-1247 related to depositions. Prior to repeal former §§ 1231-1247 were derived from 1957, No. 217 , §§ 1-17, former §§ 1232, 1239, 1243, 1246 were amended by 1959, No. 261 , § 35; 1959, No. 261 , § 34; 1965, No. 194 , § 10; 1959, No. 261, § 33; 1959, No. 261, § 42; 1959, No. 262 , § 26 and former § 1240a was derived from 1959, No. 261, § 33. These sections are now covered by V.R.C.P. 5(a), 25(c), 26(b)(1), (d), 27(b), 28(a), (c), 29, 30(a), (b)(1), (c)-(f), 32(a)-(c), 37(b)(1), 45(d)(1), (2)(f).

§ 1248. Depositions to be used outside State; commissioners of other states; law governing.

A person who is appointed or commissioned by the governor or a court of record of another state to take depositions in this State to be used in the other state shall have the same power to take depositions as the Supreme Court may by rule provide for an officer or other person authorized to take depositions for use within the State.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 47, eff. March 29, 1972.

History

Source.

V.S. 1947, §§ 1769, 1782. P.L. §§ 1722, 1735. G.L. §§ 1912, 1925. P.S. §§ 1610, 1623. V.S. §§ 1259, 1272. R.L. §§ 1022, 1035. 1864, No. 46 . G.S. 36, § 1. 1859, No. 16 .

Amendments

—1971 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Depositions and discovery, see V.R.C.P. 26-37.

ANNOTATIONS

Generally.

Deposition of resident of Vermont may be taken here to be used in a court without this state. In re Turner, 71 Vt. 382, 45 A. 754, 1899 Vt. LEXIS 199 (1899).

§§ 1249-1251. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 1249-1251. Former §§ 1249-1251 related to depositions. Prior to repeal former §§ 1249, 1250 were amended by 1959, No. 174 , §§ 1, 2; 1965, No. 194 , § 10. These sections are now covered by V.R.C.P. 5(a), 25(c), 26(b)(1), (d), 27(b), 28(a), (c), 29, 30(a), (b)(1), (c)-(f), 32(a)-(c), 37(b)(1), 45(d)(1), (2)(f).

Prior to repeal former §§ 1249-1251 were derived from: V.S. 1947, § 1770; P.L. § 1723; 1919, No. 71 , § 1; G.L. § 1913; P.S. § 1611; 1906, No. 63 , § 33; V.S. § 1260; R.L. § 1023; G.S. 36, § 8; 1858, No. 14 , § 1; V.S. 1947, § 1771; P.L. § 1724; 1921, No. 73 , § 1; G.L. § 1914; P.S. § 1612; V.S. § 1261; R.L. § 1024; G.S. 36, § 16; R.S. 31, § 10; V.S. 1947, § 1772; P.L. § 1725; G.L. § 1915; P.S. § 1613; V.S. § 1262; R.L. § 1025; G.S. 36, § 15; R.S. 31, § 9; R. 1797, p. 116, § 84; R. 1787, p. 47.

Subchapter 2. Other Discovery Procedures

§§ 1261-1267. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 1261-1267. Former §§ 1261-1267 related to depositions.

Former § 1261 was derived from 1957, No. 217 , § 2(b); 1959, No. 261 , § 35 and amended by 1959, No. 261 , § 35.

Former §§ 1262-1267 were derived from 1957, No. 217 , § 2(b) and amended by 1959, No. 261 , §§ 36-41.

Subchapter 3. Testimony in Perpetuam

§§ 1281-1286. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 1281-1286. Former §§ 1281-1286 related to depositions.

Former § 1281 was derived from V.S. 1947, § 1784; P.L. § 1737; 1919, No. 73 , § 1; G.L. § 1927; 1917, No. 254 , § 1890; 1915, No. 1 , § 64; P.S. § 1625; V.S. § 1274; R.L. § 1037; G.S. 36, § 34; R.S. 31, § 20; 1818, p. 85.

Former § 1282 was derived from V.S. 1947, § 1785; P.L. § 1737; 1919, No. 73 , § 1; G.L. § 1927; 1917, No. 254 , § 1890; 1915, No. 1 , § 64; P.S. § 1625; V.S. § 1274; R.L. § 1037; G.S. 36, § 34; R.S. 31, § 20; 1818, p. 85.

Former § 1283 was derived from V.S. 1947, § 1786; P.L. § 1738; G.L. § 1928; 1915, No. 1 , § 65; P.S. § 1626; V.S. § 1275; R.L. § 1038; G.S. 36, § 35; R.S. 31, § 21; 1818, p. 86.

Former § 1284 was derived from V.S. 1947, § 1787; P.L. § 1739; G.L. § 1929; 1915, No. 1 , § 66; P.S. § 1627; V.S. § 1276; R.L. § 1039; G.S. 36, § 36; R.S. 31, § 22; 1818, p. 86.

Former § 1285 was derived from V.S. 1947, §§ 1788, 1789; P.L. §§ 1740, 1741; G.L. §§ 1930, 1931; 1917, No. 254 , § 1894; 1915, No. 1 , §§ 67, 68; P.S. §§ 1628, 1629; V.S. §§ 1277, 1278; R.L. §§ 1040, 1041; G.S. 36, §§ 37, 38; R.S. 31, §§ 23, 24; 1818, pp. 86, 87.

Former § 1286 was derived from V.S. 1947, § 1790; P.L. § 1742; G.L. § 1832; P.S. § 1630; V.S. § 1279; R.L. § 1042; G.S. 36, § 39; R.S. 31, § 25; 1818, p. 87.

Part 3. Jury

Chapter 41. Summoning Grand and Petit Jurors

Subchapter 1-4.

§§ 1401-1475. Repealed. 1967, No. 284 (Adj. Sess.), § 3, eff. July 1, 1968.

History

Former §§ 1401-1475. Former §§ 1401-1475 contained provisions relating to summoning grand and petit jurors and were repealed by 1967, No. 284 (Adj. Sess.), § 3, eff. July 1, 1968. These sections have been replaced by 4 V.S.A. chapter 25. For the source of these sections reference should be made to former Volume 3 and its 1972 supplement.

Chapter 43. District Court Jury

§§ 1501-1505. Repealed. 1967, No. 284 (Adj. Sess.), § 3, eff. July 1, 1968.

History

Former §§ 1501-1505. Former §§ 1501-1505 contained provisions relating to municipal court juries and were repealed by 1967, No. 284 (Adj. Sess.), § 3, eff. July 1, 1968. Prior to repeal § 1502 was amended by 1965, No. 194 , § 6. Repealed sections have been replaced by 4 V.S.A. chapter 25.

For source of former §§ 1501-1505 reference should be made to former Volume 3 and its 1972 supplement.

Chapter 45. Justice’s Jury

§§ 1521-1523. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

Part 4. Evidence

Chapter 61. Witnesses

CROSS REFERENCES

Competency of witnesses generally, see V.R.E. Article VI.

Privileges of witnesses, see V.R.E. Article V.

Subchapter 1. Qualifications, Privileges, and Credibility

CROSS REFERENCES

Privileged communications of hearing impaired persons using interpreters, see 1 V.S.A. § 334 .

§ 1601. Interest of witness; effect on qualifications and credibility.

A person shall not be disqualified as a witness in a civil cause or proceeding by reason of his or her interest therein as a party or otherwise. However, his or her interest or connection may be shown to affect his or her credibility as a witness.

History

Source.

V.S. 1947, § 1735. P.L. § 1693. G.L. § 1890. P.S. § 1588. V.S. § 1236. R.L. § 1001. G.S. 36, § 24. 1852, No. 13 , § 1.

CROSS REFERENCES

Competency of respondent as witness, see 13 V.S.A. § 6601 .

ANNOTATIONS

Agent.

Common law principle that an agent was a competent witness, either for or against principal, to prove his acts done, or contracts made, as agent, and his authority therefor from his principal, was equally applicable to case of a written contract purporting to be executed by agent in name and behalf of principal, as to a case of a verbal contract. Lytle v. Bond’s Est., 40 Vt. 618 (1868), same case 39 Vt. 388.

—Witness to capacity of testator.

A legatee under a will was not thereby rendered incompetent as a witness to capacity of testator. In re Buckman's Will, 64 Vt. 313, 24 A. 252, 1892 Vt. LEXIS 42 (1892).

Interest bearing on weight and credibility.

Any interest a fellow motorcycle rider had in the outcome of the trial or any relationship he had to the insured was not a disqualification to his status as a witness but went to credibility; any interests he had were merely fodder for cross-examination, and he could therefore testify regarding the events of the accident provided his testimony was otherwise admissible. Rotman v. Progressive Ins. Co., 955 F. Supp. 2d 272, 2013 U.S. Dist. LEXIS 91596 (D. Vt. 2013).

It made no difference as to competency of certain declarations as evidence, whether plaintiff’s interest was greater to have will established or defeated, but such consideration might be of importance in regard to weight and credibility of such evidence. Robinson v. Hutchinson, 31 Vt. 443 (1859), same case 26 Vt. 38, 167 A.L.R. 30.

Questions for court.

The competency of a witness is a preliminary question for the trial court. Pacquin v. Pacquin, 125 Vt. 243, 214 A.2d 90, 1965 Vt. LEXIS 233 (1965).

Witness as to execution of will.

Proponent of will, who was also legatee, but was not an attesting witness, was competent to testify to circumstances attending its execution. In re Wheelock's Will, 76 Vt. 235, 56 A. 1013, 1904 Vt. LEXIS 128 (1904).

§ 1602. When one party is dead or lacks capacity to testify due to a mental condition or psychiatric disability.

A party shall not be allowed to testify in his or her own favor where the other party to the contract or cause of action in issue and on trial is dead or shown to the court to lack capacity to testify due to a mental condition or psychiatric disability, except as follows:

  1. To meet or explain the testimony of living witnesses produced against him or her.
  2. To meet the testimony of such deceased or party who lacks capacity to testify due to a mental condition or psychiatric disability upon a question upon which his or her testimony has been taken in writing or by a stenographer in open court to be used in such action and is admitted as evidence therein.
  3. In any action in which the estate of such deceased or party who lacks capacity to testify due to a mental condition or psychiatric disability or his or her grantee or assignee is a party, entries in a cash or account book showing the receipt or payment of money in due course of business, made by such party prior to his or her death or incapacity to testify and before any controversy arose respecting the transaction to which such entries relate, may be admitted in evidence as tending to show the facts therein recited to be true. The adverse party in such action may meet the evidence of such entries by any proper evidence.
  4. In addition to the right to testify, as provided in the foregoing exceptions, the living party may be a witness in his or her own favor, so far as to prove in whose handwriting his or her entries are and when they were made and no further, in actions founded on book account and when the matter in issue and on trial is proper matter of book account.
  5. In any action founded on tort, provided, however, that in tort actions by or against representatives of deceased persons, memoranda and declarations of the deceased, relevant to the matter in issue, may be received as evidence, and provided further, that this provision shall not be construed as permitting testimony as to conversations with the deceased other than to meet or explain the memoranda or declarations of the deceased.

HISTORY: Amended 1961, No. 166 , § 1; 2013, No. 96 (Adj. Sess.), § 46.

History

Source.

V.S. 1947, § 1736. P.L. §§ 1694, 1696. G.L. §§ 1891, 1893. 1910, No. 85 , §§ 1, 2. 1908, No. 64 , §§ 1, 3. P.S. §§ 1589, 1591. V.S. §§ 1237, 1239. R.L. §§ 1002, 1004. 1876, Nos. 66, 83. 1876, No. 83 . G.S. 36, § 24.

Amendments

—2013 (Adj. Sess.). Catchline: Substituted “lacks capacity to testify due to a mental condition or psychiatric disability” for “insane”.

Undesignated paragraph: Inserted “or her” following “his” and substituted “lack capacity to testify due to a mental condition or psychiatric disability” for “be insane”.

Subdiv. (1): Inserted “or her” following “him”.

Subdiv. (2): Substituted “party who lacks capacity to testify due to a mental condition or psychiatric disability” for “insane party” and inserted “or her” following “him”.

Subdiv. (3): Substituted “party who lacks capacity to testify due to a mental condition or psychiatric disability” for “insane party”, “incapacity to testify” for “insanity”, and inserted “or her” following “his” twice.

—1961. Subdiv. (5) added.

ANNOTATIONS

I. INCOMPETENCY GENERALLY.
Agents.

Section applied only to parties, and not their agents. Kittell v. Missisquoi R.R., 56 Vt. 96, 1883 Vt. LEXIS 88 (1883); Cheney v. Pierce, 38 Vt. 515, 1866 Vt. LEXIS 23 (1866).

Agent or officer through whom another made contract was in no legal sense a party to contract. Poquet v. North Hero, 44 Vt. 91, 1871 Vt. LEXIS 98 (1871).

Agent who made contract on behalf of his principal was competent witness after death of principal, in a suit against principal’s estate, to prove both agency and contract. Gifford v. Thomas' Est., 62 Vt. 34, 19 A. 1088, 1889 Vt. LEXIS 103 (1889).

Person could be witness in his own behalf to prove settlement with deceased overseer of poor, since overseer was but agent of town. Billings v. Kneen, 57 Vt. 428, 1885 Vt. LEXIS 75 (1885).

Where a note was signed “Richard Bond, by Stillman Clark,” Clark was a competent witness after Bond’s decease, being an agent. Lytle v. Bond’s Est., 40 Vt. 618 (1868), same case 39 Vt. 388.

Application to answer to bill in chancery.

Section did not apply to answer to bill or petition in chancery, but answer, when responsive, was evidence, and was not affected by section. Blaisdell v. Bowers, 40 Vt. 126, 1868 Vt. LEXIS 11 (1868).

—Generally.

Status as to insanity and the existence of disqualification is determined as of time testimony sought to be excluded is offered. Taylor's Guardian v. Taylor, 117 Vt. 399, 93 A.2d 102, 1952 Vt. LEXIS 153 (1952).

Collateral transaction bearing on matter in issue.

Where party was disqualified, by reason of other party being dead, from testifying to contract in issue and on trial, he could be witness to testify to another contract or transaction between himself and deceased person which came into case collaterally and as a fact bearing collaterally upon the contract or cause of action in issue and on trial, and which had effect to establish that contract in issue and on trial never existed. Morse v. Law, 44 Vt. 561, 1872 Vt. LEXIS 69 (1872).

Where maker of note sued on was insane, plaintiff could not be witness to contract between them, but could testify to transactions with third party, for whose benefit money was loaned, regarding extinguishment, since such transactions were collateral to contract. Gregg v. Willis, 71 Vt. 313, 45 A. 229, 1899 Vt. LEXIS 181 (1899).

Where issue in case was whether defendant had purchased note in good faith from bearer, bearer was competent witness in suit for note by administrator of person from whom note was obtained, since transaction between deceased and bearer was collateral to issue. Benoir v. Paquin, 40 Vt. 199, 1867 Vt. LEXIS 65 (1867).

In foreclosure proceeding, original payee of mortgage note was competent witness to prove that deceased payor and assignee of mortgage substituted a new note for old one, since payee was not party to substitution transaction. Richardson v. Wright, 58 Vt. 367, 5 A. 287, 1886 Vt. LEXIS 102 (1886).

Conduct.

Where the beneficiary of this section’s disqualification acts inconsistently with the disqualification, the disqualification is waived. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

The Dead Man’s statute provides that a party shall not be allowed to testify in his own favor where the other party to the contract or cause of action in issue and on trial is dead; however, there is a broad waiver rule which says that the party using the statute cannot question witnesses who spoke with the deceased and then disallow the adverse party from doing so; party cannot open the door and then close it to suit party’s needs. Abbiati v. Buttura & Sons, Inc., 161 Vt. 314, 639 A.2d 988, 1994 Vt. LEXIS 15 (1994).

Construction.

This section governed question of competency of decedent’s statements in federal court civil action, since action was founded in diversity and Vermont substantive law provided rule of decision. Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

Subsection (5) of this section did not provide exception to general rule disqualifying interested parties from testifying in their own favor when other party is deceased, where statements of decedent in question were not declarations or memoranda, but were merely pieces of conversation decedent had with witness. Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

This section must be construed in favor of the challenged witness. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Section is exception to general rule of competency, having been originally a proviso in an act having for its object removal and not creation of disqualification, and therefore it should be given a construction inclining towards competency, although a reasonable one in view of the fraudulent practices against which statute was aimed; moreover, it should not be given effect beyond the fair scope of its language. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623 (1947); Paska v. Saunders, 103 Vt. 204, 153 A. 451 (1930); Lytle v. Bond’s Est., 40 Vt. 618 (1868), same case 39 Vt. 388.

Competency is now the rule, and incompetency the exception, and provisions disqualifying “other party” to testify in his own favor when one of original parties to contract or cause of action in issue and on trial is dead, or when an executor or administrator is a party, operate as a limitation or exception to the rule. Comstock’s Adm’r v. Jacobs, 89 Vt. 133, 94 A. 497 (1915), same case 64 Vt. 277, 78 A. 1017, 86 Vt. 182, 84 A. 568, 89 Vt. 510, 96 A. 4.

Contract between sureties.

Where surety on a promissory note sued estate of a deceased surety on same note to recover amount paid, maker was witness to prove that plaintiff was not a co-surety, but only a surety for the deceased, since he was not party to contract between sureties. Canfield v. Bentley's Est., 60 Vt. 655, 12 A. 655, 1888 Vt. LEXIS 196 (1888).

Contract raised as matter of defense.

In action by creditors against widow to set aside conveyance to her of property which her husband acquired by will executed in consideration of testator’s support, widow was not competent witness to a contract with testator that property was to be hers after her husband’s death, since by raising alleged contract as defense, she made it a matter in issue. Farmer's Nat'l Bank v. Thomson, 74 Vt. 442, 52 A. 961, 1902 Vt. LEXIS 155 (1902).

Conveyances, grantor, as witness.

Grantor in defendant’s chain of title was not a “a party to the contract or cause of action in issue and on trial.” Sowles v. Butler, 71 Vt. 271, 44 A. 355, 1899 Vt. LEXIS 173 (1899).

Where deed to intestate was in dispute, grantor was incompetent to testify about extent to which intestate was informed about a right appurtenant thereto. McElroy v. McLeay, 71 Vt. 396, 45 A. 898, 1899 Vt. LEXIS 203 (1899).

One whose only part in transaction had been to convey the property as administrator of prior holder upon the direction of a party, was not himself a party within meaning of section. Atkins' Est. v. Atkins' Est., 69 Vt. 270, 37 A. 746, 1896 Vt. LEXIS 52 (1896).

Death of all other parties, co-signer of note.

Plaintiff was competent witness as to transaction between himself and defendant with relation to consideration of note unaffected by fact that a co-signer was dead. Read v. Sturtevant, 40 Vt. 521, 1868 Vt. LEXIS 41 (1868).

Death of all other parties, generally.

This section does not apply where there is more than one party on one side and not all of them are dead. Mislosky v. Wilhelm, 130 Vt. 63, 286 A.2d 267, 1971 Vt. LEXIS 222 (1971).

The Dead Man’s Statute operates to exclude a party from testifying in his own favor only when all other parties to the deed are dead. Bemis v. Lamb, 135 Vt. 618, 383 A.2d 614, 1978 Vt. LEXIS 748 (1978).

It is death of sole party to contract, or, if more than one, death of all, that operates to exclude other party from testifying in his own favor. Pope v. Hogan, 92 Vt. 250, 102 A. 937, 1918 Vt. LEXIS 160 (1918).

Death of all other parties, partners.

Where contract with partnership was originally made with member thereof since deceased, other party thereto was a competent witness in his own behalf in a suit thereon against surviving partner. Bradish & Goodenough v. Belknap, 46 Vt. 1 (1873), same case 41 Vt. 172, 22 A.L.R.2d 1086; French v. Barron, 49 Vt. 471, 1877 Vt. LEXIS 38 (1877).

Effect.

Where petitioners for further accounting by executrix had once waived question of her competency as witness, they are concluded by such waiver. Trask v. Walker's Est., 100 Vt. 51, 134 A. 853, 1926 Vt. LEXIS 121 (1926).

Ejectment based on contract with deceased.

In action of ejectment against heir of former owner, plaintiff was not competent witness to prove that former owner agreed by parol to deed premises to him on payment of a certain sum, which he paid, since agreement was contract in issue. Pember v. Congdon, 55 Vt. 58, 1883 Vt. LEXIS 17 (1883).

Examination of incompetent witness as waiver.

Incompetency to testify under this section may be waived by introducing evidence on and cross-examining the incompetent party on the subject involved. Mislosky v. Wilhelm, 130 Vt. 63, 286 A.2d 267, 1971 Vt. LEXIS 222 (1971).

Waiver of this section’s disqualification can occur because the adverse party calls the disqualified party and inquires about the contract or cause in issue or, in certain circumstances, where the adverse party cross-examines the disqualified party. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Where, at hearing before probate court on petition for further accounting, petitioners called executrix as witness and examined her generally as to property of decedent, and also called her as witness in county court and examined her as to her administration of estate, they thereby waived her incompetency to testify as to gifts made to her by decedent. Trask v. Walker's Est., 100 Vt. 51, 134 A. 853, 1926 Vt. LEXIS 121 (1926).

Gifts from deceased.

Claim of a gift, first asserted after death of alleged donor, is to be regarded with suspicion and it is policy of law to receive it with caution requiring clear and convincing proof in its support. Colby's Ex'r v. Poor, 115 Vt. 147, 55 A.2d 605, 1947 Vt. LEXIS 91 (1947).

Daughter of deceased was incompetent to testify as a witness in relation to gifts claimed to have been made to her by deceased, unless question of competency was waived. Trask v. Walker's Est., 100 Vt. 51, 134 A. 853, 1926 Vt. LEXIS 121 (1926).

Where decedent purchased organ for daughter while having some of her money in his hands, she was not a competent witness on question of whether it was a gift. LaMountain v. Miller, 56 Vt. 433, 1884 Vt. LEXIS 63 (1884).

Gifts to deceased.

In a suit to set aside a gift induced by undue influence, donee being dead, donor is not competent witness in his own behalf. Wade v. Pulsifer, 54 Vt. 45, 1881 Vt. LEXIS 72 (1881).

Wife was competent witness to testify to gift to her husband by third person after the death of donor as she was not a party to contract. Pope v. Hogan, 92 Vt. 250, 102 A. 937, 1918 Vt. LEXIS 160 (1918).

—Generally.

Witness testifies “in his own favor” only when he has a present legal interest in contract or cause of action which his testimony will tend to establish. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

Judgment creditor and debtor as parties.

In audita querela to set aside judgment for fraud, judgment creditor being dead, judgment debtor was not competent witness. Godfrey v. Downer, 47 Vt. 653 (1875), same case 47 Vt. 599.

—Generally.

“Contract in issue” means same as “contract in dispute” or “in question,” relating as well to substantial issues made by evidence as to merely formal issues made by pleadings. Paska v. Saunders, 103 Vt. 204, 153 A. 451, 1931 Vt. LEXIS 159 (1931).

When one party to contract is dead, and contract has been assigned, so that the estate, or heirs, have no interest in it, assignee stands upon this section in all cases where contract is the cause of action, in issue and on trial, and survivor cannot testify—otherwise where contract is matter collateral to cause of action. Farmers' Mut. Fire Ins. Co. v. Wells, 53 Vt. 14, 1880 Vt. LEXIS 84 (1880).

Marriage to deceased.

On appeal from decree of the probate court giving widow all the estate, she was a competent witness to fact of her marriage, since marriage contract was in issue only collaterally. Stevens v. Joyal, 48 Vt. 291, 1876 Vt. LEXIS 21 (1876).

Party claiming title by virtue of marriage to deceased cannot be a witness to prove the marriage. Fitzsimmons v. Southwick, 38 Vt. 509, 1866 Vt. LEXIS 22 (1866).

Matters constituting estoppel.

In action by bank to recover on unpaid note, defendant was competent to testify that third party had agreed to pay note when due, and that bank cashier had falsely represented that note was so paid, since agreement was only incidental to issue of whether bank was estopped. Manufacturers' Bank v. Scofield, 39 Vt. 590, 1867 Vt. LEXIS 45 (1867).

Party not of record.

Party to a contract in issue and on trial, although not a party to record, was not a competent witness to such contract, other party thereto being dead. Davis v. Windsor Sav. Bank, 48 Vt. 532, 1876 Vt. LEXIS 40 (1876).

Terms “other party” referred to other party to original contract or cause of action, and not necessarily to other party to record. Paska v. Saunders, 103 Vt. 204, 153 A. 451 (1930); Hopkins v. Sargent’s Est., 88 Vt. 217, 92 A. 14 (1914), same case 90 Vt. 185, 97 A. 657.

Payee of note where maker deceased.

Maker of note having died, disqualification attached to original payee when called as witness in behalf of his endorsee in an action in which note was contract or cause of action in issue and on trial. Foster v. Estate of King, 73 Vt. 278, 50 A. 1061, 1901 Vt. LEXIS 173 (1901).

Persons disqualified as party.

Restriction applied equally whether surviving party was plaintiff or defendant. Paska v. Saunders, 103 Vt. 204, 153 A. 451, 1931 Vt. LEXIS 159 (1931).

Persons interested in outcome of suit as parties.

Fact that person might benefit from litigation did not make him party to contract or cause of action in issue. Wilder’s Ex’r v. Wilder, 82 Vt. 123, 72 A. 203 (1909), same case 75 Vt. 178, 53 A. 1072, 117 A.L.R. 631.

Witness was not disqualified by fact that he might become beneficiary of estate of person who stood to gain by his testimony. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

Death of one party to cause of action is issue was ground of excluding the survivor from testifying, and not fact that estate of deceased party had an interest in result of suit. Hollister v. Young, 41 Vt. 156, 1868 Vt. LEXIS 92 (1868).

Purpose.

This section created an exception to the broad common law rule that disqualified interested parties from testifying in their own favor; thus it was intended to allow otherwise inadmissible evidence rather than to create a rule of disqualification. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Main object of this section is to remove and not to create disqualification, and competency is the rule and incompetency the exception. Lawrence v. Werblow, 122 Vt. 374, 173 A.2d 157, 1961 Vt. LEXIS 86 (1961).

Questions for court.

Question of competency or incompetency of a witness is always for court, and when a fact must be decided in determining that question, such fact is for court. Cairns v. Mooney, 62 Vt. 172, 19 A. 225, 1890 Vt. LEXIS 90 (1890).

Competency of witness is preliminary question for court to decide before receiving his testimony; the ruling is subject to review, and may be reversed where it appears from evidence to have been erroneous or founded upon error in law. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

Review.

Error cannot be predicated on an answer, even if it contravenes section, which excludes a living party when other party is dead. Lawrence v. Graves' Est., 60 Vt. 657, 15 A. 342, 1888 Vt. LEXIS 197 (1888).

Survivor as witness for adverse party.

One claiming under deceased party to contract or cause of action in issue and on trial may call surviving adverse party as witness, since surviving party is not then a witness in his own favor. Ainsworth v. Stone, 73 Vt. 101, 50 A. 805, 1901 Vt. LEXIS 135 (1901).

—Failure to object.

In an action for a refund of estate taxes, the government waived reliance on the dead man’s statutes when it submitted the deposition of decedent’s son, in which he discussed conversations with the decedent, in support of its contention that the father did not intend to bestow upon his son the power to donate property under a power of attorney. Estate of Smith v. United States, 979 F. Supp. 279, 1997 U.S. Dist. LEXIS 15526 (D. Vt. 1997).

Where no objection was entered in respect to party’s testimony in hearing before commissioner of probate court, the prohibitory mandate of this section is deemed waived by the non-objecting party and the other party is to be allowed to testify on such matters at trial. In re Estate of Boisvert, 135 Vt. 69, 370 A.2d 209, 1977 Vt. LEXIS 557 (1977).

Waiver of this section’s disqualification can occur because the disqualified party is allowed to testify in his own favor to the contract or cause of action in issue without objection by the adverse party. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Failure to object in probate court to testimony prohibited by this section will be a waiver of the disqualification for all further proceedings. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Where administrator permitted person having claim against estate to testify in relation thereto before commissioners on estate, without objection, he thereby waived provisions making witness incompetent, and such waiver bound estate in hearing on appeal from commissioners’ decision. Collins v. Estate of Collins, 104 Vt. 506, 162 A. 361, 1932 Vt. LEXIS 173 (1932).

Since the representative of a deceased party may waive the statutory disqualification of this section, either by calling the witness or by permitting the witness to testify, it was error to exclude evidence in a county court action offered to establish such waiver had taken place in a prior probate proceeding. Shearer v. Welch, 126 Vt. 106, 223 A.2d 552, 1966 Vt. LEXIS 172 (1966).

Trover based on contract with deceased.

Where plaintiff sued in trover for property purchased by defendant from administrator of original owner and plaintiff claimed he had bought it of deceased in his lifetime, plaintiff was incompetent as witness, since contract of sale from original owner was in issue. Hall v. Hamblett, 51 Vt. 589, 1879 Vt. LEXIS 130 (1879).

In trover for property which the plaintiff purchased of deceased, of whom the defendant claimed to have subsequently purchased it, plaintiff was a competent witness in his own behalf, to his contract of purchase. Downs v. Belden, 46 Vt. 674, 1874 Vt. LEXIS 49 (1874).

In action of trover for conversion of personal property, where defendant claimed to derive title to it as legate under his father’s will, plaintiff, claiming to have bought it of another party and left it with the testator merely for his use, was competent witness in this respect in his own behalf, since arrangement between plaintiff and deceased was collateral to issue. Walling v. Newton, 59 Vt. 684, 10 A. 827, 1886 Vt. LEXIS 41 (1886).

Witness not incompetent to testify.

Because the widow of a former partner was not a party to the partnership dissolution agreement and because her testimony was not in her favor, the dead man’s statute did not render her incompetent to testify. In re Estate of Maggio, 2012 VT 99, 193 Vt. 1, 71 A.3d 1130, 2012 Vt. LEXIS 96 (2012).

—Failure to object.

In an action for a refund of estate taxes, the government waived reliance on the dead man’s statutes when it submitted the deposition of decedent’s son, in which he discussed conversations with the decedent, in support of its contention that the father did not intend to bestow upon his son the power to donate property under a power of attorney. Estate of Smith v. United States, 979 F. Supp. 279, 1997 U.S. Dist. LEXIS 15526 (D. Vt. 1997).

Where no objection was entered in respect to party’s testimony in hearing before commissioner of probate court, the prohibitory mandate of this section is deemed waived by the non-objecting party and the other party is to be allowed to testify on such matters at trial. In re Estate of Boisvert, 135 Vt. 69, 370 A.2d 209, 1977 Vt. LEXIS 557 (1977).

Waiver of this section’s disqualification can occur because the disqualified party is allowed to testify in his own favor to the contract or cause of action in issue without objection by the adverse party. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Failure to object in probate court to testimony prohibited by this section will be a waiver of the disqualification for all further proceedings. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Where administrator permitted person having claim against estate to testify in relation thereto before commissioners on estate, without objection, he thereby waived provisions making witness incompetent, and such waiver bound estate in hearing on appeal from commissioners’ decision. Collins v. Estate of Collins, 104 Vt. 506, 162 A. 361, 1932 Vt. LEXIS 173 (1932).

Since the representative of a deceased party may waive the statutory disqualification of this section, either by calling the witness or by permitting the witness to testify, it was error to exclude evidence in a county court action offered to establish such waiver had taken place in a prior probate proceeding. Shearer v. Welch, 126 Vt. 106, 223 A.2d 552, 1966 Vt. LEXIS 172 (1966).

—Generally.

Status as to insanity and the existence of disqualification is determined as of time testimony sought to be excluded is offered. Taylor's Guardian v. Taylor, 117 Vt. 399, 93 A.2d 102, 1952 Vt. LEXIS 153 (1952).

—Generally.

“Contract in issue” means same as “contract in dispute” or “in question,” relating as well to substantial issues made by evidence as to merely formal issues made by pleadings. Paska v. Saunders, 103 Vt. 204, 153 A. 451, 1931 Vt. LEXIS 159 (1931).

When one party to contract is dead, and contract has been assigned, so that the estate, or heirs, have no interest in it, assignee stands upon this section in all cases where contract is the cause of action, in issue and on trial, and survivor cannot testify—otherwise where contract is matter collateral to cause of action. Farmers' Mut. Fire Ins. Co. v. Wells, 53 Vt. 14, 1880 Vt. LEXIS 84 (1880).

—Generally.

Witness testifies “in his own favor” only when he has a present legal interest in contract or cause of action which his testimony will tend to establish. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

II. EXCEPTIONS TO INCOMPETENCY.
Application of section.

Provision “that in actions of book account, and when the matter at issue and on trial is proper matter of book account, the party living may be a witness in his own favor so far as to prove in whose handwriting his charges are, and when made, and no further,” is not confined to cases where the action is, in form, book account, but is applicable in any suit or proceeding where such matter is at issue and on trial. Woodbury v. Woodbury’s Est., 48 Vt. 94 (1875), same case 50 Vt. 152.

Declarations prior to controversy.

Declaration of deceased person regarding boundaries can be received in evidence only if made before a controversy has arisen in respect to such boundaries. Vermont Shopping Center, Inc. v. Pettengill, 125 Vt. 145, 211 A.2d 183, 1965 Vt. LEXIS 214 (1965).

Entries by copy.

Account copied by plaintiff from a daybook was not admissible under section, which allows proof and authentication only of an original book of accounts. Woodbury v. Woodbury’s Est., 50 Vt. 152 (1876), same case 48 Vt. 94.

Entries made by recollection.

A paper in plaintiff’s attorney’s handwriting containing itemized statement of debt and credit form of accounts between plaintiff and intestate made upon direction of plaintiff from his recollections after intestate’s death, was not admissible as a book of original entries, although plaintiff kept no other book. Wyman v. Wilcox’s Est., 66 Vt. 26, 28 A. 321 (1893), same case 63 Vt. 487, 21 A. 1103, 6 A.L.R. 766.

Items of payment.

Book introduced in evidence which plaintiff testified to be a book in which he “kept entries of money paid out”, was not book of account within the meaning of section and item of charge in question was matter of payment, and not a proper matter for charge on book. Parris v. Bellows’s Est., 52 Vt. 351 (1880), same case 53 Vt. 539, 60 Vt. 224, 14 A. 697, 84 A.L.R. 150.

Payment on a note is not a subject for book charge, therefore where the payee was dead and an action was brought on note by his administrator, maker was not a competent witness to authenticate such item of charge on his book. Jewett v. Winship, 42 Vt. 204, 1869 Vt. LEXIS 66 (1869).

Matters proved by entries.

In action against deceased person’s estate, plaintiff’s accounts on book, with proof of handwriting, and when made, were evidence tending to show sale and delivery of goods in dispute. Greene v. Mill's Est., 60 Vt. 440, 14 A. 5, 1888 Vt. LEXIS 166 (1888).

Rebuttal evidence by proponent of will.

After contestants introduced evidence that testatrix had insane delusions concerning conduct of husband with other women, proponents could show in rebuttal what his reputation was in this respect so far as it was known to testatrix. Foster's Ex'rs v. Dickerson, 64 Vt. 233, 24 A. 253, 1891 Vt. LEXIS 87 (1891).

Proponent who was legatee under will was not incompetent to testify as to conversations with testatrix about matters which were incidental and collateral to issue of validity of will, and which met and explained contestant’s evidence tending to show fraud and undue influence on the part of proponent. In re Healey's Will, 94 Vt. 128, 109 A. 19, 1920 Vt. LEXIS 178 (1920).

—Generally.

Under section which provides when, in case of death or insanity of one party, other may be a witness, a party had same right to testify in actions of book account as in other actions, and in addition, the right to testify to handwriting of his charges and when made. Thrall & Smith v. Seward, 37 Vt. 573, 1865 Vt. LEXIS 32 (1865).

Scope of testimony of surviving witness.

Surviving party in action of book account is competent witness in his own favor, so far as to prove in whose handwriting his charges are, and when made, and no further; he is not competent witness to testify generally in relation to items of his account. Hunter v. Kittredge's Est., 41 Vt. 359, 1868 Vt. LEXIS 127 (1868).

Settlement of account.

Where one of parties to an account died and his administrator brought action on book against other party, latter could not be a competent witness to testify to a settlement with intestate of the account. Johnson v. Dexter, 37 Vt. 641, 1865 Vt. LEXIS 45 (1865).

Sufficiency of records required as independent evidence.

Memoranda of disputed items covering a period of ten years, made on a loose strip of paper, found by administrator in his intestate’s desk, used by him in his dwelling house, without any proof they were original entries, except appearance of paper, or that they were made at or about the time when right to charge first accrued, or that it was intestate’s custom to make charges in like manner, although administrator testified that they were in his handwriting were not admissible, when offered, not to refresh recollection or to corroborate testimony of a witness, but as independent evidence to prove that defendant was indebted to the intestate. Barber v. Bennett, 58 Vt. 476, 4 A. 231 (1886), same case 60 Vt. 662, 15 A. 348, 62 Vt. 50, 19 A. 978, 83 A.L.R. 820, 17 A.L.R.2d 272.

Testimony as to facts taking place before or after death.

Surviving party to contract is competent witness for himself to meet or explain testimony of living witnesses produced against him as to facts taking place before, as well as after, other party’s death. Spencer v. Potter's Est., 85 Vt. 1, 80 A. 821, 1911 Vt. LEXIS 201 (1911).

Testimony taken in open court.

Plaintiff having deceased, his administrator having entered to prosecute the suit, and on hearing before a referee, testimony which plaintiff had given on a former trial having been reproduced by witnesses who testified from “recollection solely,” defendant was not witness in his own behalf as to what deceased party testified to or as to reproduced testimony. Blair v. Ellsworth, 55 Vt. 415, 1883 Vt. LEXIS 57 (1883).

—Generally.

Party to contract or cause of action in issue and on trial, other party to which was dead, was competent to testify not alone to meet and explain testimony of living witness produced against him but also any legitimate influence deducible therefrom. In re Bugbee's Will, 92 Vt. 175, 102 A. 484, 1917 Vt. LEXIS 309 (1917); Paska v. Saunders, 103 Vt. 204, 153 A. 451, 1931 Vt. LEXIS 159 (1931).

A surviving party to a transaction with another party who is dead may testify pursuant to this section and § 1603 of this title with respect to a living witness produced against him to meet and explain the testimony of such person and any legitimate inference deducible therefrom. Smith v. Lentini, 125 Vt. 526, 220 A.2d 291, 1966 Vt. LEXIS 224 (1966).

Plaintiff claiming damages after being struck by car driven by defendant’s testatrix, who died before trial, was not competent to testify as to his freedom from contributory negligence where no witnesses were produced against him on the issue. Pritchard v. Nelson, 228 F.2d 878, 1955 U.S. App. LEXIS 3720 (2d Cir. 1955).

—Generally.

Under section which provides when, in case of death or insanity of one party, other may be a witness, a party had same right to testify in actions of book account as in other actions, and in addition, the right to testify to handwriting of his charges and when made. Thrall & Smith v. Seward, 37 Vt. 573, 1865 Vt. LEXIS 32 (1865).

III. GENERALLY.
Tort actions.

This section could not be applied to tort action. Turcotte v. Estate of LaRose, 153 Vt. 196, 569 A.2d 1086, 1989 Vt. LEXIS 243 (1989).

Cited.

Cited in In re Estate of Hogg, 147 Vt. 101, 510 A.2d 1323, 1986 Vt. LEXIS 366 (1986), Gallagher v. McCarthy, 148 Vt. 258, 532 A.2d 557, 1987 Vt. LEXIS 501 (1987); In re Estate of Elliott, 149 Vt. 248, 542 A.2d 282, 1988 Vt. LEXIS 14 (1988).

§ 1603. When executor or administrator is a party.

When an executor or administrator is a party, the other party shall not be permitted to testify in his or her own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to acts done or contracts made since the probate of the will, or since the appointment of the administrator, and to meet or explain the testimony of living witnesses produced against him or her. This section shall not apply to actions founded on tort.

HISTORY: Amended 1961, No. 166 , § 2.

History

Source.

V.S. 1947, § 1737. P.L. § 1695. G.L. § 1892. 1908, No. 64 , § 2. P.S. § 1590. V.S. § 1238. R.L. § 1003. 1876, No. 83 . G.S. 36, § 24.

Amendments

—1961. Added “This section shall not apply to actions founded on tort”.

ANNOTATIONS

Actions between administrators.

Where both parties to contract in issue were dead and plaintiff and defendant were their administrators, neither representative was incompetent as a witness. Atkins' Est. v. Atkins' Est., 69 Vt. 270, 37 A. 746, 1896 Vt. LEXIS 52 (1896).

Cestui que trust as party.

Where a mere naked technical trustee sues as such, his cestui que trustent are treated as real plaintiffs, and so where such trustee, as such, sued a decedent’s estate his cestui que trustent were “the other party” to the record within the meaning of section, and each cestui que trust was disqualified to testify either for himself or for other. Hopkins v. Sargent’s Est., 88 Vt. 217, 92 A. 14 (1914), same case 90 Vt. 185, 97 A. 657.

Construction.

This section must be construed in favor of the challenged witness. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Contract in issue.

Words “contract in issue” relate to issues made by evidence, as well as to those made in pleadings; and where, in an action by an administrator against a physician for malpractice on plaintiff’s intestate, declaration alleged that intestate employed defendant to treat her, but it appeared that plaintiff himself made contract, defendant could testify to contract, but was not a competent witness generally, for purpose of statute is to preserve equality of testimonial competency, beyond which exception does not go, nor exclusion of statute operate. Smith v. Stannard, 81 Vt. 319, 70 A. 568 (1908), same case 79 Vt. 57, 64 A. 232, 67 A.L.R. 39.

In an action by administrator to recover value of a note, defendant was not a witness in his own behalf to prove that note had been given to him by intestate. Rooney v. Minor, 56 Vt. 527, 1884 Vt. LEXIS 86 (1884).

Contracts with persons living.

Where an action was brought by administrator as such, defendant was competent witness to contract in issue in such suit made with person living and competent to testify. Hollister v. Young, 42 Vt. 403, 1869 Vt. LEXIS 95 (1869).

Events after death.

Where husband and wife, sellers of partnership, died prior to full payment of purchase price, court, in buyer’s action against husband seller’s executor, in which buyer claimed husband had orally promised buyer the partnership free and clear should sellers die before full payment, correctly applied this section that when an executor is a party the other party cannot testify in his own favor regarding a contract in issue unless the contract was made with one who is living and competent to testify. White v. Hubbard, 131 Vt. 423, 306 A.2d 707, 1973 Vt. LEXIS 327 (1973).

In an action of trover by administrator defendants were disqualified as witnesses as to what had occurred before appointment of plaintiff as administrator, except to explain facts and circumstances which took place after death of intestate. Melendy v. Spaulding, 54 Vt. 517 (1881).

Foreclosure, defendant as witness.

In a petition for foreclosure brought by an administrator, the defendant was not a competent witness to prove declarations of decedent. Haskell's Adm'r v. Holt, 75 Vt. 413, 56 A. 99, 1903 Vt. LEXIS 150 (1903).

Purpose.

This section created an exception to the broad common law rule that disqualified interested parties from testifying in their own favor; thus it was intended to allow otherwise inadmissible evidence rather than to create a rule of disqualification. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Design of this section is to exclude a party from testifying when other party to contract in issue and on trial is dead, and when in action such deceased party is represented by an executor or administrator, and it contemplates a suit or proceeding, determination of which may affect estate of deceased party. Cole v. Shurtleff, 41 Vt. 311, 1868 Vt. LEXIS 118 (1868); Abbott v. Choate, 47 Vt. 53, 1874 Vt. LEXIS 76 (1874).

Testimony by administrators or executors.

Trial court erred under the dead man’s statute concerning cases where an executor or administrator was a party in excluding testimony by co-administrators. Although they were the decedent’s heirs, neither of them was a party to the alleged oral contracts between the decedent and the homeowners in a subdivision he developed, nor could their testimony regarding the decedent’s promises to dedicate the infrastructure to the town upon completion of the subdivision and to maintain the subdivision roads until that time be considered testimony in their favor. Hayes v. Town of Manchester Water & Sewer Bds., 2014 VT 126, 198 Vt. 92, 112 A.3d 742, 2014 Vt. LEXIS 131 (2014).

Testimony to meet or explain.

Trial court erred under the dead man’s statute concerning cases where an executor or administrator was a party in excluding testimony offered by homeowners about the decedent’s statements to them, because once the co-administrators broached the subject of promises made to the homeowners, the homeowners had the right to meet or explain the nature and extent of those promises. Hayes v. Town of Manchester Water & Sewer Bds., 2014 VT 126, 198 Vt. 92, 112 A.3d 742, 2014 Vt. LEXIS 131 (2014).

A surviving party to a transaction with another party who is dead may testify pursuant to this section and § 1602 of this title with respect to a living witness produced against him to meet and explain the testimony of such person and any legitimate inference deducible therefrom. Smith v. Lentini, 125 Vt. 526, 220 A.2d 291, 1966 Vt. LEXIS 224 (1966).

In action against administrator, plaintiff had no right under section to meet or explain adverse testimony of his own witness, since witness was not produced against plaintiff. McPherson v. Dow, 117 Vt. 506, 96 A.2d 649, 1953 Vt. LEXIS 124 (1953).

Plaintiff was not confined to mere denial, but could testify to such affirmative facts as had a tendency to meet and destroy adverse testimony and any legitimate inferences deducible therefrom. Burke v. Powers' Est., 100 Vt. 342, 137 A. 202, 1927 Vt. LEXIS 160 (1927); In re Bugbee's Will, 92 Vt. 175, 102 A. 484, 1917 Vt. LEXIS 309 (1917); Gilfillan v. Gilfillan's Est., 90 Vt. 94, 96 A. 704, 1916 Vt. LEXIS 244 (1916).

Tort actions.

This section is expressly inapplicable to tort actions. Turcotte v. Estate of LaRose, 153 Vt. 196, 569 A.2d 1086, 1989 Vt. LEXIS 243 (1989).

Transactions after probate of will.

Where defendant, debtor of an estate, paid part of debt to one of the executors, he could, in a suit for balance, testify that executor had agreed to accept amount in full satisfaction of debt, even though the executor had died. Dawson v. Wait, 41 Vt. 626, 1869 Vt. LEXIS 17 (1869).

Waiver.

In an action for a refund of estate taxes, the government waived reliance on the dead man’s statutes when it submitted the deposition of decedent’s son, in which he discussed conversations with the decedent, in support of its contention that the father did not intend to bestow upon his son the power to donate property under a power of attorney. Estate of Smith v. United States, 979 F. Supp. 279, 1997 U.S. Dist. LEXIS 15526 (D. Vt. 1997).

Where the beneficiary of this section’s disqualification acts inconsistently with the disqualification, the disqualification is waived. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Waiver of this section’s disqualification can occur because the disqualified party is allowed to testify in his own favor to the contract or cause of action in issue without objection by the adverse party. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Failure to object in probate court to testimony prohibited by this section will be a waiver of the disqualification for all further proceedings. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Waiver of this section’s disqualification can occur because the adverse party calls the disqualified party and inquires about the contract or cause in issue or, in certain circumstances, where the adverse party cross-examines the disqualified party. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

In general assumpsit by administrator for money received by defendant from intestate, plaintiff, by calling defendant as a witness and examining him, waived his statutory incompetency and made him competent as a general witness in the case notwithstanding this section. Comstock’s Adm’r v. Jacobs, 84 Vt. 277, 78 A. 1017 (1911), same case 86 Vt. 182, 84 A. 568, 89 Vt. 133, 94 A. 497, 89 Vt. 510, 96 A. 4, 64 A.L.R. 1150, 1168, 1180.

Where executor or administrator, without objection, allowed claimant to testify in his own favor, provisions of section were thereby waived, and such claimant made a competent witness in his own favor not only there, but subsequently in county court on appeal. Cowles v. Cowles' Est., 81 Vt. 498, 71 A. 191, 1908 Vt. LEXIS 170 (1908).

Cited.

Cited in In re Estate of Elliott, 149 Vt. 248, 542 A.2d 282, 1988 Vt. LEXIS 14 (1988); Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

§ 1604. Value of property; owner as competent witness.

The owner of real or personal property shall be a competent witness to testify as to the value thereof.

History

Source.

1957, No. 182 .

ANNOTATIONS

Generally.

The court’s ability to value property in a divorce action is limited by the evidence put on by the parties and the credibility of that evidence. Gazo v. Gazo, 166 Vt. 434, 697 A.2d 342, 1997 Vt. LEXIS 102 (1997).

Tenant, as owner of new auto damaged when defective tree on premises rented by plaintiff fell on it, was competent to testify to its value in suit against landlord based on breach of covenant to repair. Keene v. Willis, 128 Vt. 187, 260 A.2d 371, 1969 Vt. LEXIS 223 (1969).

Basis of testimony.

Town failed in its contention that the State Housing Authority should have been required to produce an appraisal performed by a third party to rebut the listers’ valuation of subsidized housing properties. The authority’s director of property and asset management testified as to her belief of the appraised value, offered evidence to support her opinion, and during that testimony, the appraiser had ample opportunity to evaluate the director’s knowledge of the properties in issue and to make a judgment about her credibility. These are both determinations within the discretion of the hearing officer. Therefore, no error could be found in the appraiser’s decision to allow the director to testify as to the value of the properties. State Housing Authority v. Town of Northfield, 2007 VT 63, 182 Vt. 90, 933 A.2d 700, 2007 Vt. LEXIS 155 (2007).

Wife could testify in divorce action to value of property she owned with husband, even though her testimony relied significantly on inadmissible appraisals made more than a year before. Albarelli v. Albarelli, 152 Vt. 46, 564 A.2d 598, 1989 Vt. LEXIS 128 (1989).

Business property.

A designated representative of a corporation is qualified to testify under this section as to the value of corporate property once he has been shown to have a thorough familiarity with that property. O'Bryan Const. Co., Inc. v. Boise Cascade Corp., 139 Vt. 81, 424 A.2d 244, 1980 Vt. LEXIS 1504 (1980).

President and sole stockholder of construction firm, with many years of experience with building plans, who was entirely familiar with a certain set of plans and with the day-to-day operation of the firm, was qualified to testify as to the value of the plans under this section. O'Bryan Const. Co., Inc. v. Boise Cascade Corp., 139 Vt. 81, 424 A.2d 244, 1980 Vt. LEXIS 1504 (1980).

Condemnation proceeding.

Where owner testified that he had received offers for his property before and after the taking, but did not testify that his opinion as to decreased value was based on such offers, it was not error for the trial court to deny defendant’s motion to strike the plaintiff’s estimate of damages. Bissonnette v. State Highway Board, 124 Vt. 424, 207 A.2d 151, 1965 Vt. LEXIS 264 (1965).

Testimony by owner as to decreased value of condemned land where such testimony was based on “between the loss now and what it was before” was proper under this section. Bissonnette v. State Highway Board, 124 Vt. 424, 207 A.2d 151, 1965 Vt. LEXIS 264 (1965).

Property owner was a competent witness to testify as to the value of his land. Harlow v. State Highway Board, 123 Vt. 446, 193 A.2d 925, 1963 Vt. LEXIS 114 (1963).

Owner of land condemned for highway purposes was a competent witness to testify as to value of his own land. Colson v. State Highway Board, 122 Vt. 392, 173 A.2d 849, 1961 Vt. LEXIS 89 (1961).

Cross-examination.

In action for damages resulting from condemnation of land, restriction of cross-examination of the owner relative to the value which he places on the land is error. Harlow v. State Highway Board, 123 Vt. 446, 193 A.2d 925, 1963 Vt. LEXIS 114 (1963).

Property damage.

Person who became owner of tenement house after damage was caused by frozen water pipes brought on by termination of electrical service without notice to prior owner was competent to testify to damage he observed and his opinion of cost of repairs, in prior owner’s suit in tort against utility company. Shortle v. Central Vt. Pub. Svc. Corp., 137 Vt. 32, 399 A.2d 517, 1979 Vt. LEXIS 932 (1979).

Relevancy.

Evidence given by landowners as to probable impact of an operating landfill was properly received under this section; however, evidence of transfers of land at assertedly increased prices was of such dubious relevance, particularly since it did not deal with general inflation of property values and assumed a knowledge of the prospective landfill, that it was properly within the discretion of the Superior Court to exclude it in de novo proceeding upon appeal from denial of conditional use permit for operation of landfill. In re Patch, 140 Vt. 158, 437 A.2d 121, 1981 Vt. LEXIS 597 (1981).

Rental value.

This section does not render an owner competent to testify as to rental value of property. Abbadessa v. Tegu, 123 Vt. 183, 187 A.2d 56, 1962 Vt. LEXIS 220 (1962).

Testimony on value.

Chapter 7 debtors were entitled to avoid a creditor’s lien under 11 U.S.C.S. § 522(f) because their claim of a homestead exemption was not improper despite the fact that they only lived on the property during summers. The creditor failed to meet its burden of rebutting the debtors’ intent to maintain the property as their homestead under Fed. R. Bankr. P. 4003(c), and it also failed to rebut the reliability or soundness of the debtor’s valuation of the property under 12 V.S.A. § 1604 . In re Belding, 2010 Bankr. LEXIS 4968 (Bankr. D. Vt. Dec. 23, 2010).

Deer were personal property; thus, their owner could testify to their value for purposes of restitution. Moreover, the trial court had not accepted the owner’s valuation, but had reduced it, because the trial court found that the owner failed to prove that these particular deer would be taken to a game preserve for hunting. State v. Driscoll, 2008 VT 101, 184 Vt. 381, 964 A.2d 1172, 2008 Vt. LEXIS 90 (2008).

The trial court was entitled to rely on the property owner’s testimony as to the replacement value of the two shade trees plaintiffs cut down in calculating damages. Pion v. Bean, 2003 VT 79, 176 Vt. 1, 833 A.2d 1248, 2003 Vt. LEXIS 160 (2003).

Value of business.

Once the proprietor of a business is shown to be familiar with his property and has some understanding of its value, he will be permitted to estimate its worth, leaving the weight to be given his opinion to the jury. Fiske v. State Highway Board, 124 Vt. 87, 197 A.2d 790, 1964 Vt. LEXIS 64 (1964).

Weight of evidence.

The owner of real property is competent to testify concerning its value, and the weight to be assigned such testimony is a matter for the trier of fact. Crabbe v. Veve Associates, 150 Vt. 53, 549 A.2d 1045, 1988 Vt. LEXIS 123 (1988).

Where trial court in divorce action ordered a division of parties’ real estate based on the wife’s estimated valuation of the property, since there was no evidence of any outside appraisal of the property, the court was limited to the parties’ valuation, and it was fully within its discretion to choose the wife’s estimate. Wood v. Wood, 143 Vt. 113, 465 A.2d 250, 1983 Vt. LEXIS 495 (1983).

A property owner is competent to testify as to the value of his property, and the weight to be given his testimony is a matter for the trier of fact. Jackson v. Jackson, 139 Vt. 548, 432 A.2d 1181, 1981 Vt. LEXIS 525 (1981); Wood v. Wood, 143 Vt. 113, 465 A.2d 250, 1983 Vt. LEXIS 495 (1983).

Owner of property was a competent witness to testify concerning its value, and weight to be given his opinion was a matter for the trier of fact. Shortle v. Central Vt. Pub. Serv. Corp., 134 Vt. 486, 365 A.2d 256, 1976 Vt. LEXIS 709 (1976).

Cited.

Cited in DeGrace v. DeGrace, 147 Vt. 466, 520 A.2d 987, 1986 Vt. LEXIS 448 (1986); A. Brown, Inc. v. Vermont Justin Corp., 148 Vt. 192, 531 A.2d 899, 1987 Vt. LEXIS 473 (1987); Klein v. Klein, 150 Vt. 466, 555 A.2d 382, 1988 Vt. LEXIS 212 (1988); Johnson v. Johnson, 158 Vt. 160, 605 A.2d 857, 1992 Vt. LEXIS 32 (1992).

§ 1605. Husband and wife.

Husband and wife shall be competent witnesses for or against each other in all cases, civil or criminal, except that neither shall be allowed to testify against the other as to a statement, conversation, letter, or other communication made to the other or to another person, nor shall either be allowed in any case to testify as to a matter which, in the opinion of the court, would lead to a violation of marital confidence. This section shall not be construed so as to prevent a libelant and libelee from testifying as to all matters in divorce causes.

History

Source.

V.S. 1947, § 1738. P.L. § 1697. G.L. § 1894. P.S. § 1592. R. 1906, § 1489. 1904, No. 60 , § 1. V.S. §§ 1240-1243.

ANNOTATIONS

Conversation with spouse or other person.

In action to recover possession of house, where defense was that defendant was trying to effect a settlement and was to vacate when settlement was made, evidence by defendant’s wife that she heard him say that he was willing to move if he could get a satisfactory settlement was not within provision forbidding a wife to testify against her husband as to any conversation had by him with her or with another person. Mead v. Owen, 80 Vt. 273, 67 A. 722 (1907), same case 83 Vt. 132, 74 A. 1058.

Cross-examination to impeach witness.

Where respondent’s wife had testified that liquid found on his premises was for purpose of making vinegar, and that there was no intent or purpose to use it as a beverage, cross-examination as to whether she had not made statement to officer making seizure that in these times when a person could not get beer or wine they had to have something, was not objectionable and was properly admitted for purposes of impeachment. State v. Watson, 99 Vt. 473, 134 A. 585, 1926 Vt. LEXIS 163 (1926).

Divorce.

In action for divorce against husband, where evidence showed that libelant had given birth to a child which, as part of his defense, libelee claimed was illegitimate, testimony of libelee that during year he did not have sexual intercourse with libelant or opportunity therefor was admissible. Maine Sugar Industries, Inc. v. Maine Industrial Bldg. Authority, 264 A.2d 1, 1970 Me. LEXIS 248 (Me. 1970).

Marital confidences.

In a prosecution for adultery, testimony of respondent’s wife that they were married at a designated time and place was sufficient to prove their marriage, and that testimony would not lead to a violation of “marital confidence.” State v. Nieburg, 86 Vt. 392, 85 A. 769, 1913 Vt. LEXIS 206 (1913).

The “court” referred to in this section is the trial court, and exercise of its judgment in that regard is not ordinarily reviewable. State v. Nieburg, 86 Vt. 392, 85 A. 769, 1913 Vt. LEXIS 206 (1913).

Conversations between husband and wife in presence of witnesses in respect to their respective interests in certain real estate were not confidential. In re Buckman's Will, 64 Vt. 313, 24 A. 252, 1892 Vt. LEXIS 42 (1892).

Purpose.

Section makes spouses exactly as competent witnesses for or against each other as are other witnesses, except as to communications with each other, or where, in opinion of court, their testimony would be a violation of marital confidence. State v. Muzzy, 87 Vt. 267, 88 A. 895, 1913 Vt. LEXIS 199 (1913).

Removal of incompetency as ground for new trial.

Fact that former wife of person convicted of crime had procured a divorce from him since his conviction, and had thus become a competent and important witness, afforded him no basis for petition for new trial on ground of newly discovered evidence. State v. Sargood, 80 Vt. 412, 68 A. 51 (1907), same case 77 Vt. 80, 58 A. 971, 65 Harv. L. Rev. 875.

Review.

Under section, neither husband nor wife shall be allowed to testify against other as to a statement, conversation, letter or other communication made to the other or to another person, and allowance of such testimony by trial court, after objection, was error. State v. Ball, 119 Vt. 306, 126 A.2d 121, 1956 Vt. LEXIS 112 (1956).

Cited.

Cited in State v. Wright, 154 Vt. 512, 581 A.2d 720, 1989 Vt. LEXIS 280 (1989).

§ 1606. Religious belief.

A person shall not be incompetent as a witness in any court, matter, or proceeding, on account of his or her opinions on matters of religious belief; nor shall a witness be questioned, nor testimony taken or received, in relation thereto.

History

Source.

V.S. 1947, § 1739. P.L. § 1698. G.L. § 1895. P.S. § 1593. V.S. § 1244. R.L. § 1007. G.S. 36, § 29. 1851, No. 12 , § 1.

§ 1607. Priests and ministers.

A priest or minister of the gospel shall not be permitted to testify in court to statements made to him or her by a person under the sanctity of a religious confessional.

History

Source.

V.S. 1947, § 1740. P.L. § 1699. G.L. § 1896. P.S. § 1594. 1896, No. 30 , § 1.

§ 1608. Conviction of crime.

A person shall not be incompetent as a witness in any court, matter, or proceeding by reason of the person’s conviction of a crime. The conviction of a crime involving moral turpitude within 15 years shall be the only crime admissible in evidence given to affect the credibility of a witness.

HISTORY: Amended 1959, No. 250 , eff. June 10, 1959; 2005, No. 148 (Adj. Sess.), § 4f.

History

Source.

V.S. 1947, § 1741. P.L. § 1700. G.L. § 1897. P.S. § 1595. V.S. § 1245. R.L. § 1008. G.S. 36, § 30. 1851, No. 12 , § 2.

Amendments

—2005 (Adj. Sess.). In the first sentence, substituted “the person’s conviction of a crime” for “his conviction or a crime” and deleted “other than perjury, subornation of perjury, or endeavoring to incite or procure another to commit the crime of perjury” from the end, and substituted “15 years” for “fifteen years” in the second sentence.

—1959. Provided that conviction of crime involving moral turpitude within 15 years shall be the only crime admissible in impeachment.

ANNOTATIONS

Burglary.

Burglary is malum in se and as such involves moral turpitude as a matter of law. State v. Manning, 136 Vt. 436, 392 A.2d 409, 1978 Vt. LEXIS 770 (1978).

Conspiracy.

13 V.S.A. § 2907 , similar to this section, did not prevent witness with federal court conviction of conspiracy to commit perjury from testifying against defendant charged with arson. State v. Polidor, 130 Vt. 34, 285 A.2d 770, 1971 Vt. LEXIS 218 (1971).

Construction and application.

In determining whether the probative value of evidence of a witness’ prior convictions is outweighed by its prejudicial effect, the trial court must consider: (1) the nature of the impeaching crime; (2) the length of the defendant’s criminal record; (3) the remoteness in time of the convictions; (4) the relative importance of the defendant’s testimony; and (5) the need for impeachment in the particular case. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

In the case of defendant convicted of breaking and entering in the daytime, where trial court ruled that evidence of his prior convictions involving moral turpitude were admissible, since it was apparent from the transcript below that the court did not give adequate consideration to factors laid down in State v. Gardner, 139 Vt. 456, 433 A.2d 249 (1981), governing admissibility of evidence of prior convictions to impeach the credibility of a witness, except whether each of the convictions involved falsehood, reversal was required and the cause would be remanded. State v. Jarrett, 143 Vt. 191, 465 A.2d 238, 1983 Vt. LEXIS 491 (1983).

This section establishes the outer boundary of admissibility, limiting admission to crimes involving moral turpitude for which conviction occurred within 15 years and removing from trial court all discretion to admit crimes not meeting the prescribed conditions; however, this section does not require that crimes that meet the prescribed conditions always be admitted and does not allow the use of prior convictions to impeach a witness as a matter of right. State v. Gardner, 139 Vt. 456, 433 A.2d 249, 1981 Vt. LEXIS 555 (1981).

In exercising its discretion in allowing impeachment of a witness by prior convictions, the trial court may consider a number of factors: the nature of the proceeding; the nature of the crime to be used for impeachment; the length of the defendant’s criminal record; the length of time that has passed since the conviction; and the relative importance of the defendant’s testimony and the need for impeachment by prior conviction in the case. State v. Gardner, 139 Vt. 456, 433 A.2d 249, 1981 Vt. LEXIS 555 (1981).

Discretion of court.

Requirements that a conviction admitted in evidence to impeach credibility of a witness have occurred within fifteen years and involve moral turpitude merely establish the outer limit to admissibility, within which trial court must exercise its discretion, by weighing the probative value of the evidence against its prejudicial effect. State v. Goodrich, 151 Vt. 367, 564 A.2d 1346, 1989 Vt. LEXIS 137 (1989).

Cross-examination concerning prior convictions in order to discredit a witness is limited to convictions of crimes involving moral turpitude within fifteen years and is subject to the discretion of the trial court. Barrett v. Adirondack Bottled Gas Corp., 145 Vt. 287, 487 A.2d 1074, 1984 Vt. LEXIS 592 (1984).

In exercising its discretion concerning cross-examination concerning prior convictions in order to discredit a witness, the court may consider a number of factors in balancing the prejudicial effects of the evidence against its probative value. Barrett v. Adirondack Bottled Gas Corp., 145 Vt. 287, 487 A.2d 1074, 1984 Vt. LEXIS 592 (1984).

The admission of prior convictions to test the credibility of a witness is subject to the discretion of the trial court, which must determine whether the probative value of such evidence is outweighed by its prejudicial effect. State v. DeJoinville, 145 Vt. 603, 496 A.2d 173, 1985 Vt. LEXIS 331 (1985).

At defendant’s trial for sexual assault of his eleven-year-old daughter, trial court did not abuse its discretion in permitting defendant to be impeached with a prior conviction for welfare fraud, since the outcome of the case hinged largely on the credibility of two of the witnesses involved. State v. DeJoinville, 145 Vt. 603, 496 A.2d 173, 1985 Vt. LEXIS 331 (1985).

Cross-examination of a witness concerning prior convictions is subject to the discretion of the trial court. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Trial court has discretion in deciding whether to permit impeachment of a witness’ credibility by use of prior convictions involving moral turpitude. State v. Ritchie, 144 Vt. 121, 473 A.2d 1164, 1984 Vt. LEXIS 418 (1984).

Impeachment of a witness under this section is not a matter of right, but is subject to the trial court’s discretion. State v. Foy, 144 Vt. 109, 475 A.2d 219, 1984 Vt. LEXIS 419 (1984).

In the case of defendant convicted of breaking and entering in the daytime where trial court ruled that evidence of defendant’s prior convictions for petty larceny, receiving stolen property and breaking and entering in the daytime were admissible, since the court found that circumstances surrounding defendant’s participation in those crimes and the fact that they occurred closely in time to the crime charged indicated a strong disposition for dishonesty, and concluded that their bearing on veracity, when joined with the fact that they constituted the only substantial means of impeachment available to the state, outweighed the risk of prejudice to defendant, the court had a reasonable basis for its ruling and did not abuse its discretion. State v. Foy, 144 Vt. 109, 475 A.2d 219, 1984 Vt. LEXIS 419 (1984).

In the case of defendant convicted of assault and robbery, trial court did not abuse its discretion when it allowed defendant’s prior petit larceny record to be placed in evidence for impeachment purposes, since the case had narrowed to the credibility of defendant and a prosecution’s witness had been exposed. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Trial court’s ruling on admissibility of prior convictions to impeach the credibility of a witness is a discretionary one, to be made in light of all the relevant circumstances, no one of which is in itself governing. State v. Jarrett, 143 Vt. 191, 465 A.2d 238, 1983 Vt. LEXIS 491 (1983).

Cross-examination of a witness concerning prior convictions is subject to the discretion of the trial court; prior decision in State v. Manning, 136 Vt. 436, 392 A.2d 409 (1978), interpreting this section, and holding that a witness may be impeached by cross-examination concerning any prior convictions for crimes involving moral turpitude within 15 years and that trial court has no discretion to exclude this form of impeachment, was incorrect. State v. Gardner, 139 Vt. 456, 433 A.2d 249, 1981 Vt. LEXIS 555 (1981).

Drunk driving.

Since drunken driving convictions are not convictions of crimes involving moral turpitude, their admissibility for impeachment purposes is prohibited. State v. Bushey, 142 Vt. 507, 457 A.2d 279, 1983 Vt. LEXIS 413 (1983).

Where at defendant’s trial for driving under the influence of intoxicating liquor, the prosecutor elicited testimony as to defendant’s two prior convictions of that offense after the trial court had sustained defense counsel’s objection to that line of questioning, reversal of defendant’s conviction was required. State v. Bushey, 142 Vt. 507, 457 A.2d 279, 1983 Vt. LEXIS 413 (1983).

Where testimony admitted over objection as to defendant’s prior arrests for driving while intoxicated showed only a general tendency to commit the offense of operating vehicle under influence of intoxicating liquor and did not involve moral turpitude, such testimony was not admissible under this section to affect credibility in later proceeding, even had it been offered for that purpose and proved by records of conviction. State v. Batchelor, 135 Vt. 366, 376 A.2d 737, 1977 Vt. LEXIS 630 (1977).

Questions asked plaintiff by defendant’s attorney in action for damages plaintiff sustained while a passenger in auto involved in head-on collision with auto driven by defendant, as to whether plaintiff drank frequently, had problems with drinking too much and had twice lost his license for D.W.I., were wholly unrelated and immaterial to the case, indicated an undeniable attempt to characterize plaintiff as having a serious drinking problem and thus put him in bad repute with the jury, the question as to the D.W.I. convictions, answered in the affirmative, was highly improper and prejudicial and could only have generated prejudice in the jurors’ minds, and error required reversal of verdict for defendants and the grant of a new trial. McBrine v. Fraser, 128 Vt. 514, 266 A.2d 809, 1970 Vt. LEXIS 264 (1970).

Evidence.

Under this section, after the court has found that the crimes involved moral turpitude, it must then weigh the probative value of the evidence against its prejudicial effect. State v. Foy, 144 Vt. 109, 475 A.2d 219, 1984 Vt. LEXIS 419 (1984).

During impeachment by prior conviction the number of counts may be shown, since if the fact of conviction on one count has probative value on credibility, so conviction on more than one count has similar value without unfairness. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Probative value of evidence of prior convictions to impeach credibility must be weighed against the chilling effect on the right of a criminal defendant to testify under 13 V.S.A. § 6601 . State v. Jarrett, 143 Vt. 191, 465 A.2d 238, 1983 Vt. LEXIS 491 (1983).

Evidence which is admissible under this section may, nevertheless, be excluded if it is prejudicial or because of delay, waste of time or cumulative effect. State v. Gardner, 139 Vt. 456, 433 A.2d 249, 1981 Vt. LEXIS 555 (1981).

Where witness was asked by State’s Attorney whether she had been convicted of burglary and gave no direct answer, it was improper for state’s attorney to later ask if witness had served time in women’s reformatory, and it was error to receive answer that she had, but not for burglary; but the error was cured by substantial compliance with this section consisting of the introduction, later in the trial, or copies of the record of conviction which were certified by the Commissioner of Public Safety and the Director of Public Records. State v. Miner, 128 Vt. 55, 258 A.2d 815, 1969 Vt. LEXIS 202 (1969).

Proper and timely objections to questions regarding parole of the respondent as a result of conviction for breaking and entering, and his possible violations of parole, an admission of such questions would have been in error; such questions could not have been asked to impeach the character of the respondent because only he could have introduced that issue; nor was such evidence admissible under this section as affecting the credibility of a witness. State v. Ladabouche, 127 Vt. 171, 243 A.2d 769, 1968 Vt. LEXIS 195 (1968).

To attack credibility of witness under this section, it is not necessary to produce the record of conviction but conviction may be shown by the party himself on cross-examination, or through independent evidence. Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

However, at the same time this section makes it a matter of legal right to attack the credibility of a witness by showing through independent evidence he has been convicted of a crime involving moral turpitude. Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

Mistrial.

At trial for breach of contract a question by defendant’s attorney concerning a prior conviction of plaintiff required a mistrial, notwithstanding plaintiff’s failure to move for a mistrial at the time the incident occurred, since the prejudice caused by the question was of such a magnitude as to be irreparable by any curative instruction the court might have given. Barrett v. Adirondack Bottled Gas Corp., 145 Vt. 287, 487 A.2d 1074, 1984 Vt. LEXIS 592 (1984).

Moral turpitude.

Larceny is a crime of moral turpitude because it is inherently base, and if committed within fifteen years, it is admissible for impeachment purposes, subject to the trial court’s discretion. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Where defendant was charged with breaking and entering in the daytime, trial court did not abuse its discretion in ruling that his prior conviction for receiving stolen property involved moral turpitude and, therefore, was admissible for impeachment purposes, since the element of wrongful intent to take and keep the property of another was sufficient to make the crime inherently base. State v. Foy, 144 Vt. 109, 475 A.2d 219, 1984 Vt. LEXIS 419 (1984).

Conviction of income tax evasion under the federal statutes may, or may not, be a crime involving moral turpitude. Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

Only where the method of tax evasion charged in the indictment necessarily involves fraud, is a conviction on a plea of guilty or nolo contendere conclusive as to fraud or moral turpitude. Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

Trial court has no discretionary power to receive evidence of criminal conviction for offense other than that involving moral turpitude, to attack credibility of witness, but court must rule whether as matter of law the crime involves moral turpitude. Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

Crime involving moral turpitude must be based on conduct which is not only socially undesirable but which is, by its nature, base or depraved. State v. Fournier, 123 Vt. 439, 193 A.2d 924, 1963 Vt. LEXIS 439 (1963); Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

Offense of drunken driving does not involve moral turpitude. State v. Fournier, 123 Vt. 439, 193 A.2d 924, 1963 Vt. LEXIS 439 (1963).

This section as amended removed discretionary power of trial court to receive evidence of a criminal conviction for an offense other than that involving moral turpitude on the subject of the credibility of a witness. State v. Russ, 122 Vt. 236, 167 A.2d 528, 1961 Vt. LEXIS 62 (1961).

Fact that witness had several times been convicted on plea of guilty of crimes of stealing and obtaining money under false pretenses involved moral turpitude and affected witness’s credibility and was properly admitted in evidence under objection of immateriality. State v. Guyer, 91 Vt. 290, 100 A. 113, 1917 Vt. LEXIS 246 (1917).

Purpose.

The purpose of this section is to remove a common law disability or incompetency. Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

Review.

Supreme Court can assume compliance with criteria set forth in State v. Gardner , 139 Vt. 456, 433 A.2d 2449 (1981), for consideration by trial courts in evaluating the quality and necessity of evidence relating to prior convictions unless the contrary is clear from the record. State v. Foy, 144 Vt. 109, 475 A.2d 219, 1984 Vt. LEXIS 419 (1984).

Time of conviction.

Under this section evidence of a crime involving moral turpitude may be received in evidence to affect the creditability of a witness if the conviction occurred within 15 years. In re Huard, 125 Vt. 189, 212 A.2d 640, 1965 Vt. LEXIS 223 (1965).

Type of offense.

Where respondent was asked whether he had ever been convicted of a felony, without limitation as to the type of offense or as to time, the question was properly excluded under this section. In re Huard, 125 Vt. 189, 212 A.2d 640, 1965 Vt. LEXIS 223 (1965).

Use.

A prosecutor must not affirmatively and deliberately use prior convictions as evidence of guilt of the crime charged. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

The test for determining whether prosecutor used prior convictions as evidence of guilt of the crime charged is whether the reference to the defendant’s prior convictions during his cross-examination can be intended only to suggest to the jury that defendant is guilty of the crime charged because of his previous conviction or convictions. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Evidence of prior convictions is not admissible for the purpose of showing that a defendant in a criminal case is the type of person who would do such a thing. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Where prosecutor who cross-examined defendant at his trial for assault and robbery began with general questions, narrowed his focus to the activities on the night in question and following defendant’s denial that he had been present at the crime introduced evidence of defendant’s prior larceny convictions, since a witness for the state had placed defendant at the scene and defendant had denied his presence there, defendant’s credibility was directly at issue and the prior crimes were not introduced to prove that he was the type of person who would do such a thing. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Cited.

Cited in State v. Savo, 141 Vt. 203, 446 A.2d 786, 1982 Vt. LEXIS 499 (1982); State v. Shattuck, 141 Vt. 523, 450 A.2d 1122, 1982 Vt. LEXIS 572 (1982); State v. Covell, 146 Vt. 338, 503 A.2d 542, 1985 Vt. LEXIS 439 (1985); State v. Trask, 148 Vt. 385, 533 A.2d 1185, 1987 Vt. LEXIS 517 (1987); State v. Hurley, 150 Vt. 165, 552 A.2d 382, 1988 Vt. LEXIS 149 (1988).

§ 1609. Admissibility of written statements.

In civil cases, a written statement of a witness, other than when required by law, shall not be admissible in any court proceeding, either as an admission or as impeaching evidence, unless the written statement is taken pursuant to the requirements for depositions that the Supreme Court may by rule provide, or unless, before offering the statement in evidence, the party offering the statement identifies the person and capacity of the person taking it and the circumstances under which it was taken.

HISTORY: 1959, No. 262 , § 39, eff. June 11, 1959; amended 1971, No. 185 (Adj. Sess.), § 48, eff. March 29, 1972.

History

Amendments

—1971 (Adj. Sess.). Provided for taking depositions pursuant to rules.

CROSS REFERENCES

Depositions and discovery, see V.R.C.P. 26-37.

ANNOTATIONS

Accident reports.

Where defendant had no personal knowledge of the accident and filed a report on the basis of information furnished by plaintiff, the defendant making no claim to the contrary, the contents of the report were inadmissible hearsay. Sawyer v. Ewen, 125 Vt. 196, 212 A.2d 628, 1965 Vt. LEXIS 224 (1965).

Admissions in criminal case.

Admission by defendant in criminal case, whether made in or out of court, under oath or not, and regardless to whom such admissions were made, is competent evidence against him in civil action involving same subject matter. Merrill v. Reed, 123 Vt. 248, 185 A.2d 737, 1962 Vt. LEXIS 236 (1962).

§ 1610. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 1610. Former § 1610 related to copies of written statements in personal injury actions and was derived from 1961, No. 269 , § 3. This section is now covered by V.R.C.P. 26(b)(3).

§ 1611. Written statements; consent of physician or parent.

In civil cases, a written statement of a person who has been injured and is under the care of a physician and confined in a hospital, taken without the permission of the attending physician, or if the person is a minor, without the permission of the parent as well, shall not be admissible in any court proceeding either as an admission or as impeaching evidence.

HISTORY: 1963, No. 116 .

§ 1612. Patient’s privilege.

  1. Confidential information privileged.   Unless the patient waives the privilege or unless the privilege is waived by an express provision of law, a person authorized to practice medicine, chiropractic, or dentistry, a registered professional or licensed practical nurse, or a mental health professional as defined in 18 V.S.A. § 7101(13) shall not be allowed to disclose any information acquired in attending a patient in a professional capacity, including joint or group counseling sessions, and which was necessary to enable the provider to act in that capacity.
  2. Identification by dentist; crime committed against patient under 16.   A dentist shall be required to disclose information necessary for identification of a patient. A physician, dentist, chiropractor, or nurse shall be required to disclose information indicating that a patient who is under the age of 16 years has been the victim of a crime.
  3. Mental or physical condition of deceased patient.
    1. A physician, chiropractor, or nurse shall be required to disclose any information as to the mental or physical condition of a deceased patient privileged under subsection (a) of this section, except information which would tend to disgrace the memory of the decedent, either in the absence of an objection by a party to the litigation or when the privilege has been waived:
      1. by the personal representative, or the surviving spouse, or the next of kin of the decedent; or
      2. in any litigation where the interests of the personal representative are deemed by the trial judge to be adverse to those of the estate of the decedent, by any party in interest; or
      3. if the validity of the will of the decedent is in question, by the executor named in the will, or the surviving spouse or any heir-at-law or any of the next of kin or any other party in interest.
    2. A physician, dentist, chiropractor, mental health professional, or nurse shall be required to disclose any information as to the mental or physical condition of a deceased patient privileged under subsection (a) of this section upon request to the Chief Medical Examiner.

HISTORY: Added 1973, No. 190 (Adj. Sess.), eff. July 1, 1974; amended 1981, No. 221 (Adj. Sess.), § 1; 1991, No. 236 (Adj. Sess.), § 2; 1993, No. 222 (Adj. Sess.), § 23; 2009, No. 55 , § 12.

History

Amendments

—2009. Substituted “Patient’s” for “Patients”’ in the section heading; made a minor punctuation change in subsec. (a); substituted “16” for “sixteen” twice in subsec. (b); redesignated former introductory paragraph of subsec. (c) as subdiv. (c)(1); in subdiv. (c)(1), made a minor punctuation change and added “of this section”; redesignated former subdivs. (c)(1) through (c)(3) as present subdivs. (c)(1)(A) through (c)(1)(C); and added subdiv. (c)(2).

—1993 (Adj. Sess.). Inserted “including joint or group counseling sessions” following “professional capacity” in the first sentence.

—1991 (Adj. Sess.). Inserted “chiropractic” following “medicine”, deleted “which he” preceding “acquired” and substituted “the provider” for “him” following “enable” in subsec. (a), and inserted “chiropractor” preceding “or nurse” in the second sentence of subsec. (b) and in the introductory paragraph of subsec. (c).

—1981 (Adj. Sess.). Subsec. (a): Deleted “or” following “dentistry” and inserted “or a mental health professional as defined in 18 V.S.A. § 7101(13) ” following “nurse”.

CROSS REFERENCES

Applicability of section to records of health care data base, see 18 V.S.A. § 9410 .

ANNOTATIONS

Application of privilege.

Where prescribers of controlled drugs disclosed information regarding issuance of prescriptions, error in disclosing privileged information, if any, was harmless; at time of prescribers’ disclosures, trooper already had in his possession prescriptions indicating probable violations of statute prohibiting the obtaining or attempting to obtain a regulated drug by fraud or deceit and trooper sought merely to verify that the prescriptions had indeed been written by each prescriber; and elicited from them the opinion that had they been aware of a concurrent prescription from another prescriber, their own prescribing decisions would have been affected. State v. Welch, 160 Vt. 70, 624 A.2d 1105, 1992 Vt. LEXIS 214 (1992).

Information which defendant disclosed to his daughter to his daughter’s psychologist was not protected by subsection (a) of this section, since defendant was not a patient of the psychologist, they spoke only once, and to the extent that they discussed personal and confidential matters, the purpose and impetus was to help the psychologist understand the daughter’s situation. State v. Parker, 149 Vt. 393, 545 A.2d 512, 1988 Vt. LEXIS 33 (1988).

Burden of proof.

Defendant claiming physician-patient privilege has the burden of proving that the privilege existed between the witness and himself and that the communication sought to be protected was privileged. State v. Tatro, 161 Vt. 182, 635 A.2d 1204, 1993 Vt. LEXIS 102 (1993).

Appellants who claimed that court erred in admitting testimony in violation of this section had burden of proving first, that the privilege existed, and second, that the material sought to be protected was in fact privileged. In re T.L.S., 144 Vt. 536, 481 A.2d 1037, 1984 Vt. LEXIS 513 (1984).

Construction with other laws.

Court which transferred legal custody and guardianship of two children to the Commissioner of Social and Rehabilitation Services did not err in admitting testimony of the mother’s mental health services counselor in violation of this section, since at the time of the hearings at which the counselor testified, this section did not include mental health professionals and amendment to this section, under which the information would have been privileged, could not, pursuant to 1 V.S.A. § 214 , governing effect of amendments, be applied retroactively. In re T.L.S., 144 Vt. 536, 481 A.2d 1037, 1984 Vt. LEXIS 513 (1984).

Under 1 V.S.A. § 213 providing that acts of the General Assembly, except, among others, those relating to the competency of witnesses, shall not affect a suit begun or pending at the time of their passage, this section granting a patient a privilege with respect to any information a doctor or nurse acquires in attending the patient which was necessary to enable the doctor or nurse to act in a professional capacity applies to all actions, whether commenced before or after the effective date of the privilege statute. Mattison v. Poulen, 134 Vt. 158, 353 A.2d 327, 1976 Vt. LEXIS 619 (1976).

Deceased patient.

Trial court properly declined to admit homicide victim’s medical records concerning an alleged pregnancy and abortion where court concluded after in camera review that the records would be marginally probative, at best, on issue of state of mind of victim’s boyfriend whom defense presented as victim’s killer, and were merely cumulative. State v. Wright, 154 Vt. 512, 581 A.2d 720, 1989 Vt. LEXIS 280 (1989), cert. denied, 498 U.S. 1032, 111 S. Ct. 692, 112 L. Ed. 2d 682, 1991 U.S. LEXIS 27 (1991).

Nonprofessional observations.

Court which transferred legal custody and guardianship of two children to the Commissioner of Social and Rehabilitation Services did not err in admitting testimony by the children’s psychologist as to the mother’s psychological condition in violation of this section where the psychologist was not the mother’s treating physician, his opinions were not based on his prior treatment of the mother nor on information from other professionals who were treating the mother and in each instance where the psychologist’s opinion was elicited by the State, it was made in response to a question carefully phrased so as to limit the basis of the opinion to his personal observations in a nonprofessional capacity when the mother accompanied the children to their treatment sessions as well as information that he had heard in trial. In re T.L.S., 144 Vt. 536, 481 A.2d 1037, 1984 Vt. LEXIS 513 (1984).

Observations by nurse.

Observations of emergency room nurse relating to alcohol on the breath of defendant, who suffered severe head and facial injuries in an accident which resulted in his being charged with the offense of driving while under the influence of intoxicating liquor, constituted information which was acquired while attending a patient in a professional capacity and which was necessary to enable her to act in that capacity and was, consequently, privileged information; therefore, action of trial court in allowing testimony of nurse as to her observations, without a waiver by the defendant of the privilege, was error. State v. Raymond, 139 Vt. 464, 431 A.2d 453, 1981 Vt. LEXIS 496 (1981).

Psychiatric exams.

Expert medical witnesses’ recounting of defendant’s statements made in course of their psychiatric examination of him in regard to issues of premeditation and malice were inadmissible in prosecution for first-degree murder. State v. Lapham, 135 Vt. 393, 377 A.2d 249, 1977 Vt. LEXIS 638 (1977).

Rescuers.

Witness who had taken a basic CPR course in connection with military service and was enrolled in a “first-responder” training program was not a physician, dentist, nurse, or mental health professional for purposes of physician-patient privilege was inapplicable was not error. State v. Tatro, 161 Vt. 182, 635 A.2d 1204, 1993 Vt. LEXIS 102 (1993).

Where rescuer at accident scene testified that he wanted to know who was driving the car so that he could assess the damage to an unconscious passenger and that he did not intend to treat defendant, and defendant did not testify on this point and presented no evidence that he intended his communication to be confidential, trial court’s ruling that physician-patient privilege was inapplicable was not error. State v. Tatro, 161 Vt. 182, 635 A.2d 1204, 1993 Vt. LEXIS 102 (1993).

Scope of privilege.

Duty to train claim, recast as a duty to inform the parents of a former patient in their action against the mental health treatment facility and service provider that arose from the patient’s assault on a victim, should have survived dismissal because it was not statutorily barred by confidentiality concerns based on statutory exemptions or exceptions, and it was warranted by policy and factual concerns. Kuligoski v. Brattleboro Retreat, 2016 VT 54A, 203 Vt. 328, 156 A.3d 436, 2016 Vt. LEXIS 55 (May 6, 2016).

Pharmacists are not covered by the doctor-patient privilege. State v. Welch, 160 Vt. 70, 624 A.2d 1105, 1992 Vt. LEXIS 214 (1992).

Observations of a patient’s mental or physical condition by a licensed practical nurse is just as much information acquired while attending the patient as statements, admissions or other utterances made by the patient to the nurse, and if the observation is one which is necessary to enable the nurse to act in a professional capacity, then it is privileged information. State v. Raymond, 139 Vt. 464, 431 A.2d 453, 1981 Vt. LEXIS 496 (1981).

This section prohibits physician from disclosing any information, not just admissions made directly to him, and the full disclosure contemplated by the statute encompasses all statements made by client and acquired by physician while attending the defendant which might bear upon sanity regardless of when or to whom the statements were made. State v. Hohman, 136 Vt. 341, 392 A.2d 935, 1978 Vt. LEXIS 627 (1978).

Statements to non-physician.

Trial court did not violate this section by permitting a nurse to testify to statement of defendant charged with driving while intoxicated that he was too drunk to sign the consent-to-treatment form before being treated at hospital, and the defendant’s spontaneous and volunteered declaration of his inability to sign his name did not constitute privileged information; defendant’s statement was made prior to the commencement of any treatment at the hospital, the nurse was fulfilling a clerical duty required for all incoming patients, and the nurse specifically testified that the defendant’s volunteered statement was not necessary for her to act in her professional capacity. State v. Sweet, 142 Vt. 238, 453 A.2d 1131, 1982 Vt. LEXIS 634 (1982).

Where court allowed psychiatrist for defendant being tried for murder to testify on cross-examination to certain admissions contained in psychiatrist’s client conference report, the admissions having been made to defense counsel’s investigator relating in gruesome detail the defendant’s actions and mental processes as he strangled victim and disposed of her body, physician-patient privilege was violated and reversal of conviction was required. State v. Hohman, 136 Vt. 341, 392 A.2d 935, 1978 Vt. LEXIS 627 (1978).

Waiver.

Mother who opposed state’s petition to have her child declared in need of supervision waived doctor-patient privilege concerning testimony of child’s psychologist by virtue of opposition to the petition. In re C.I., 155 Vt. 52, 580 A.2d 985, 1990 Vt. LEXIS 127 (1990).

Child who opposed state’s petition to have him declared in need of supervision placed his mental health in issue by such opposition and could not thereafter assert doctor-patient privilege to exclude testimony of his psychologist concerning him and his mother; the impact of the home environment on the juvenile lies at the heart of any child in need of supervision proceeding. In re C.I., 155 Vt. 52, 580 A.2d 985, 1990 Vt. LEXIS 127 (1990).

An act by a party to a civil proceeding, placing his or her health at issue, has the effect of waiving the physician-patient privilege of this section. In re M.M., 153 Vt. 102, 569 A.2d 463, 1989 Vt. LEXIS 239 (1989), cert. denied, 494 U.S. 1059, 110 S. Ct. 1532, 108 L. Ed. 2d 771, 1990 U.S. LEXIS 1613 (1990).

The privilege provided in subsection (a) of this section is not sacrosanct and can properly be waived in the interest of public policy under appropriate circumstances. Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422, 1985 Vt. LEXIS 377 (1985).

A mental patient’s threat of serious harm to an identified victim is an appropriate circumstance under which the physician-patient privilege may be waived; however, the therapist’s obligation to the patient requires that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger. Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422, 1985 Vt. LEXIS 377 (1985).

Once the patient has waived the privilege afforded him under this section by the commencement of an action, such waiver applies to the discovery of matters causally or historically related to the patient-plaintiff’s health put in issue by the injuries and damages claimed in the action. Castle v. Sherburne Corp., 141 Vt. 157, 446 A.2d 350, 1982 Vt. LEXIS 496 (1982).

Waiving of privilege under this section relating to information acquired by a licensed practical nurse while attending a patient in a professional capacity is within the province of the patient and not the nurse. State v. Raymond, 139 Vt. 464, 431 A.2d 453, 1981 Vt. LEXIS 496 (1981).

The bringing of an action for damages arising from injuries to the person constitutes a waiver, with respect to those injuries, of the privilege granted by doctor-patient privilege statute, and plaintiff could be ordered to answer interrogatories relating to the otherwise privileged information. Mattison v. Poulen, 134 Vt. 158, 353 A.2d 327, 1976 Vt. LEXIS 619 (1976).

Who may claim privilege.

Child opposing State’s petition to have him declared in need of supervision could not exclude his psychologist’s testimony about him and his mother by claiming doctor-patient privilege on his mother’s behalf; the doctor-patient privilege is personal to patient and may be claimed only by the patient, his guardian or conservator. In re C.I., 155 Vt. 52, 580 A.2d 985, 1990 Vt. LEXIS 127 (1990).

Cited.

Cited in State v. Percy, 149 Vt. 623, 548 A.2d 408, 1988 Vt. LEXIS 84 (1988); State v. Chenette, 151 Vt. 237, 560 A.2d 365, 1989 Vt. LEXIS 35 (1989); State v. Valley, 153 Vt. 380, 571 A.2d 579, 1989 Vt. LEXIS 259 (1989); State v. Curtis, 157 Vt. 275, 597 A.2d 770, 1991 Vt. LEXIS 176 (1991).

Law Reviews —

Cross-examination of psychiatric witnesses under the Vermont doctor-patient privilege when issue of insanity is raised, see 3 Vt. L. Rev. 191 (1978).

For note relating to post-traumatic stress disorder as an insanity defense, see 9 Vt. L. Rev. 69 (1984).

§ 1613. Lawyer-corporate client privilege.

Communications otherwise privileged under Rule 502 of the Vermont Rules of Evidence are privileged with respect to a corporation only if the representative client is a member of the control group of the corporation, acting in his or her official capacity. However, if the communications are with a representative client who is not a member of the control group, such communications are privileged only to the extent necessary to effectuate legal representation of the corporation. For purposes of this section, “control group” means:

  1. the officers and directors of a corporation; and
  2. those persons who:
    1. have the authority to control or substantially participate in a decision regarding action to be taken on the advice of a lawyer; or
    2. have the authority to obtain professional legal services or to act on advice rendered pursuant thereto, on behalf of the corporation.

HISTORY: Added 1993, No. 85 , § 4b, eff. Jan. 1, 1994.

History

Application. 1993, No. 85 , § 4, eff. Jan. 1, 1994, provided:

“(a) This act [which added this section] applies to all domestic corporations in existence on its effective date [Jan. 1, 1994] that were incorporated under any general statute of this state relating to incorporation of corporations for profit, where the power to amend or repeal the statute under which the corporation was incorporated was reserved by the general assembly.

“(b) A foreign corporation authorized to transact business in this state on the effective date of this act is subject to this act but is not required to obtain a new certificate of authority to transact business under this act.”

ANNOTATIONS

Communications necessary to effectuate legal representation.

In a negligence action brought by the family of a five-year-old boy who fell from a tree onto a metal spike fence, incurring injuries that resulted in his death, the communications between the caretaker of defendant-cemetery association and defendant’s lawyer were necessary for the lawyer to represent defendant and were covered by defendant’s attorney-client privilege. Baisley v. Missisquoi Cemetery Ass'n, 167 Vt. 473, 708 A.2d 924, 1998 Vt. LEXIS 9 (1998).

§ 1614. Victim and crisis worker privilege.

    1. “Crisis worker” means an employee or volunteer who: (a) (1) “Crisis worker” means an employee or volunteer who:
      1. provides direct services to victims of abuse or sexual assault for a domestic violence program or sexual assault crisis program incorporated or organized for the purpose of providing assistance, counseling, or support services;
      2. has undergone 20 hours of training;
      3. works under the direction of a supervisor of the program, supervises employees or volunteers, or administers the program; and
      4. is certified by the director of the program.
    2. A communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of services to the victim or those reasonably necessary for the transmission of the communication.
  1. A victim receiving direct services from a crisis worker has the privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made by the victim to the crisis worker, including any record made in the course of providing support, counseling, or assistance to the victim. The crisis worker shall be presumed to have authority to claim the privilege but only on behalf of the victim.

HISTORY: Added 1993, No. 228 (Adj. Sess.), § 8.

History

Revision note

—1994. This section, which was originally enacted as section 1613 of this title, was redesignated to avoid conflict with existing section 1613.

§ 1615. Journalist’s privilege.

  1. Definitions.   As used in this section:
    1. “Journalist” means:
      1. an individual or organization engaging in journalism or assisting an individual or organization engaging in journalism at the time the news or information sought to be compelled pursuant to subsection (b) of this section was obtained; or
      2. any supervisor, employer, parent company, subsidiary, or affiliate of an individual or organization engaging in journalism at the time the news or information sought to be compelled pursuant to subsection (b) of this section was obtained.
    2. “Journalism” means:
      1. investigating issues or events of public interest for the primary purpose of reporting, publishing, or distributing news or information to the public, whether or not the news or information is ultimately published or distributed; or
      2. preparing news or information concerning issues or events of public interest for publishing or distributing to the public, whether or not the news or information is ultimately published or distributed.
  2. Compelled disclosure.
    1. No court or legislative, administrative, or other body with the power to issue a subpoena shall compel:
      1. a journalist to disclose news or information obtained or received in confidence, including:
        1. the identity of the source of that news or information; or
        2. news or information that is not published or disseminated, including notes, outtakes, photographs, photographic negatives, video or audio recordings, film, or other data; or
      2. a person other than a journalist to disclose news or information obtained or received from a journalist if a journalist could not be compelled to disclose the news or information pursuant to subdivision (A) of this subdivision (1).
    2. No court or legislative, administrative, or other body with the power to issue a subpoena shall compel:
      1. a journalist to disclose news or information that was not obtained or received in confidence unless it finds that the party seeking the news or information establishes by clear and convincing evidence that:
        1. the news or information is highly material or relevant to a significant legal issue before the court or other body;
        2. the news or information could not, with due diligence, be obtained by alternative means; and
        3. there is a compelling need for disclosure; or
      2. a person other than a journalist to disclose news or information obtained or received from a journalist if a journalist could not be compelled to disclose the news or information pursuant to subdivision (A) of this subdivision (2).
  3. No implication of waiver.   The publication or dissemination of news or information shall not constitute a waiver of the protection from compelled disclosure as provided in subsection (b) of this section.

HISTORY: Added 2017, No. 40 , § 1, eff. May 17, 2017.

History

Revision note

—2017. This section was enacted as section 1616 of this title but was renumbered as § 1615 to conform to the V.S.A. numbering scheme.

Subchapter 2. Attendance

§§ 1621, 1622. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 1621, 1622. Former §§ 1621, 1622 related to subpoenas and attachments for witnesses.

Former § 1621 was derived from V.S. 1947, § 1761; P.L. § 1714; G.L. § 1904; 1917, No. 254 , § 1867; 1908, No. 62 ; P.S. § 1602; V.S. § 1251; 1884, No. 131 , § 1; R.L. § 1013; G.S. 31, § 25; G.S. 36, § 5; 1856, No. 11 ; 1851, No. 34 ; R.S. 26, § 65; R. 1797, p. 426, § 26.

Former § 1622 was derived from V.S. 1947, § 1762; P.L. § 1715; G.L. § 1905; P.S. § 1603; V.S. § 1252; R.L. § 1014; 1880, No. 25 .

§ 1623. Penalty for disobeying subpoena.

When a person upon whom a subpoena is legally served fails to appear according to such subpoena, without reasonable excuse, he or she shall forfeit to the party which issued the subpoena or on whose behalf it was issued a sum set by the court, but not exceeding $100.00 plus all costs of litigation incurred by that party as a result of the respondent’s noncompliance, including costs of issuing new subpoenas and incurring additional expenses for expert witnesses. Such person shall also pay such party all just damages, to be recovered in an action of tort on this statute.

HISTORY: Amended 1983, No. 230 (Adj. Sess.), § 6.

History

Source.

V.S. 1947, § 1763. P.L. § 1716. G.L. § 1906. P.S. § 1604. V.S. § 1253. R.L. § 1015. G.S. 36, § 18. R.S. 31, § 12. R. 1797, p. 117, § 85. R. 1787, p. 47.

References in text.

The reference to “an action of tort” is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

Amendments

—1983 (Adj. Sess.). Rewrote the first sentence.

CROSS REFERENCES

Enforcement of subpoenas issued by administrative agencies generally, see 3 V.S.A. § 809a .

Modification of subpoenas or discovery orders issued by administrative agencies, see 3 V.S.A. § 809b .

ANNOTATIONS

Improperly served subpoena.

Witness who attended one day and then left court was not liable for penalty where subpoena was served by an indifferent person who was not named in such subpoena. Mattocks v. Wheaton, 10 Vt. 493, 1838 Vt. LEXIS 95 (1838).

§ 1624. Mittimus to compel attendance.

When it appears to a court that a subpoena has been legally served on a person, and that such person has not obeyed the subpoena, the court may issue a mittimus to compel his or her attendance.

HISTORY: Amended 1983, No. 230 (Adj. Sess.), § 7.

History

Source.

V.S. 1947, § 1764. P.L. § 1717. G.L. § 1907. P.S. § 1605. V.S. § 1254. R.L. § 1016. G.S. 36, § 19. R.S. 31, § 13. R. 1797, p. 117, § 86.

Amendments

—1983 (Adj. Sess.). Substituted “mittimus” for “attachment” preceding “to compel” wherever it appeared.

CROSS REFERENCES

Enforcement of subpoenas issued by administrative agencies generally, see 3 V.S.A. § 809a .

Modification of subpoenas or discovery orders issued by administrative agencies, see 3 V.S.A. § 809b .

Subchapter 3. Examination

§ 1641. Repealed. 1959, No. 261, § 68.

History

Former § 1641. Former § 1641 related to adverse party as witness and was derived from V.S. 1947, § 1742; P.L. § 1701; G.L. § 1898; P.S. § 1596; V.S. § 1246; R.L. § 1009; G.S. 36, § 25; 1852, No. 13 , § 2.

§ 1641a. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 1641a. Former § 1641a related to adverse party and hostile witness and was derived from 1959, No. 261 , § 43. This section is now covered by V.R.E. 607, 611(b), 611(c).

§ 1642. Impeachment of own witness.

When, in the opinion of the court, a witness produced by a party is adverse, such party, by leave of court, may prove that such witness has made statements inconsistent with his or her testimony. Before such proof is given, the attention of the witness shall be called to the occasion of such supposed statements and he or she be asked whether or not he or she has made the same.

History

Source.

V.S. 1947, § 1743. P.L. § 1702. G.L. § 1899. P.S. § 1597. V.S. § 1247. 1886, No. 49 , § 1.

ANNOTATIONS

Finding that witness is adverse.

Where record shows that court merely found that plaintiff “had a right to cross-examine” witness called by him, it will be presumed that the court found that witness was hostile, the contrary not appearing. Jewell v. Hoosac Tunnel & W.R.R., 85 Vt. 64, 81 A. 238, 1911 Vt. LEXIS 207 (1911).

When court allows a party to impeach his own witness because witness’s “testimony is adverse,” that is tantamount to a finding by court that witness himself is adverse within this section. Hurlburt v. Hurlburt's Est., 63 Vt. 667, 22 A. 850, 1890 Vt. LEXIS 81 (1890).

Own witness adverse.

While it is general rule that party cannot impeach his own witness by showing that he has made previous statements at variance with his testimony; yet if a witness is adverse, in opinion of court, such statements may be shown by leave of court, under authority of section. Cross v. Passumpsic Fiber Leather Co., 90 Vt. 397, 98 A. 1010, 1916 Vt. LEXIS 295 (1916).

Cited.

Cited in Ford Motor Co. v. Darling's, 86 A.3d 35, 2014 Me. LEXIS 7 (Me. 2014).

Law Reviews —

Prior statement of one’s witness to counteract surprise testimony; hearsay and impeachment under damage test, see 62 Yale L.J. 650, 651 (1953).

§ 1643. Expert witness.

An expert witness may be asked to state his or her opinion based on the witness’ personal observation, or on evidence introduced at the trial and seen or heard by the witness, or on his or her technical knowledge of the subject, without first specifying hypothetically in the question the data on which this opinion is based. On direct or cross-examination, such expert witness may be required to specify the data on which his or her opinion is based.

History

Source.

V.S. 1947, § 1748. 1939, No. 47 , §§ 1, 2.

CROSS REFERENCES

Opinion and expert testimony generally, see Rule 701 et seq., Vermont Rules of Evidence.

ANNOTATIONS

Generally.

Under provision of this section that an expert witness may be asked to state his opinion based on his personal observation or on evidence seen or heard at the trial without first specifying the data upon which his opinion is based, supplying the specific data may be left to later direct or cross-examination, the form of the question and sufficiency of the information are left to the discretion of the trial judge, and a shortage in the basic facts is properly challenged by a subsequent motion to strike. Bean v. Sears, Roebuck & Co., 129 Vt. 278, 276 A.2d 613, 1971 Vt. LEXIS 256 (1971).

Basis of expert opinion.

A witness qualified as an expert may state an opinion without specifying the date on which it is based, and the underlying data may subsequently be developed through direct, cross, or redirect examination. Fox v. McLain, 142 Vt. 11, 451 A.2d 1122, 1982 Vt. LEXIS 590 (1982).

Opinion of an expert may properly result from a combination of what he learns from personal observation and from information gained at trial. Farr v. State Highway Board, 122 Vt. 156, 166 A.2d 187, 1960 Vt. LEXIS 119 (1960).

Opinion of expert must be based on facts disclosed by evidence in case and not in whole or in part on speculation of witness as to what might have been evidence. Bliss v. Moore, 112 Vt. 185, 22 A.2d 315, 1941 Vt. LEXIS 149 (1941).

Competency.

The question of competency of an expert witness is a preliminary one for the trial court to determine in its sound discretion, and the court’s action is not reversible on appeal unless it appears from the evidence to be erroneous or founded upon an error of law. Hall v. Miller, 143 Vt. 135, 465 A.2d 222, 1983 Vt. LEXIS 484 (1983).

Opinion of witness qualified in field of accident reconstruction as to path taken by auto of defendant sued for damages arising from two-car collision, based partly on his conversations with persons who had not testified and his consulting of statements of certain witnesses, was properly before the jury. Lambert v. Fuller, 131 Vt. 181, 303 A.2d 471, 1973 Vt. LEXIS 290 (1973).

Competency of a witness as an expert is a question for the trial court, and it was therefore error to instruct the jury that “. . . you must decide . . . whether he . . . has qualified in your opinion as an expert.” Campbell v. Beede, 124 Vt. 434, 207 A.2d 236, 1965 Vt. LEXIS 266 (1965).

The question of competency of an expert witness is a preliminary one for the trial court to determine in its sound discretion, and the court’s action is not revisable on appeal unless it appears from the evidence to be erroneous or founded upon an error of law. Cross v. Estate of Patch, 123 Vt. 11, 178 A.2d 393, 1962 Vt. LEXIS 186 (1962).

Hypothetical questions.

Answer to a hypothetical question may be admitted, in court’s discretion, although question may not embrace all facts necessary to arrive at a sound conclusion. Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 197 A.2d 799, 1964 Vt. LEXIS 66 (1964); Verchereau v. Jameson, 122 Vt. 189, 167 A.2d 521, 1961 Vt. LEXIS 55 (1961).

Hypothetical question, which does not include all facts relating to situation at issue, is not thereby rendered inadmissible, since omissions in some aspects of detail may affect only weight of opinion given. Verchereau v. Jameson, 122 Vt. 189, 167 A.2d 521, 1961 Vt. LEXIS 55 (1961).

Purpose of section was to exempt inquirer from requirement of using hypothetical question in examination but to accord him option of using it, both in discretion of court, and to permit opposing party to call for a hypothetical specification of data used as basis of opinion. Tinney v. Crosby, 112 Vt. 95, 22 A.2d 145, 1941 Vt. LEXIS 136 (1941).

Purpose.

Section did not enlarge scope of expert testimony or class of subjects upon which opinion evidence is receivable. Tinney v. Crosby, 112 Vt. 95, 22 A.2d 145, 1941 Vt. LEXIS 136 (1941).

Rate of speed.

A properly qualified expert may give his opinion as to the rate of speed an automobile is traveling in given circumstances when an adequate factual basis exists for such opinion. Cross v. Estate of Patch, 123 Vt. 11, 178 A.2d 393, 1962 Vt. LEXIS 186 (1962).

Relevancy.

Proffered testimony as to reasonable value of surveying services allegedly rendered was properly excluded where evidence of the work consisted of very general references to research or investigation and there were no particular descriptions of the work or hours spent. Dufresne-Henry Eng. Corp. v. Gilcris Ent., Inc., 136 Vt. 274, 388 A.2d 416, 1978 Vt. LEXIS 733 (1978).

Scope of examination.

The examiner may seek the witness’ opinion on any combination of facts within the tendency of the evidence. State v. Rollins, 141 Vt. 105, 444 A.2d 884, 1982 Vt. LEXIS 480 (1982).

Value or cost.

In architect’s suit to recover for preparation of plans and specifications under contract expert testimony by a licensed, practicing architect as to the measure of a reasonable fee where plans are prepared, but the building is not carried out was properly admitted on issue of damages. Koerber v. Middlesex College, 128 Vt. 11, 258 A.2d 572, 1969 Vt. LEXIS 196 (1969).

Cited.

Cited in State v. Towne, 142 Vt. 241, 453 A.2d 1133, 1982 Vt. LEXIS 635 (1982); In re T.L.S., 144 Vt. 536, 481 A.2d 1037, 1984 Vt. LEXIS 513 (1984); State v. Percy, 149 Vt. 623, 548 A.2d 408, 1988 Vt. LEXIS 84 (1988).

§ 1644. Witnesses may be examined separately.

On the trial of a civil cause, in its discretion, upon the application of either party, the Superior Court may order the witnesses of the adverse party examined separately and apart from each other.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 193 (Adj. Sess.), § 3; 2009, No. 154 (Adj. Sess.), § 70.

History

Source.

V.S. 1947, §§ 1733, 1734. P.L. §§ 1691, 1692. G.L. §§ 1888, 1889. 1917, No. 254 , § 1852. P.S. § 1587. V.S. § 1235. R.L. § 1000. G.S. 30, § 29. 1853, No. 11 .

Revision note

—1959. Reference to municipal court was inserted pursuant to V.S. 1947, § 1734.

Amendments

—2009 (Adj. Sess.) Deleted “or district court” following “superior court”.

—1973 (Adj. Sess.) Substituted “superior” for “county” preceding “court”.

—1965. Substituted “district” for “municipal” court.

ANNOTATIONS

Parties as witnesses.

Section does not include parties who may be witnesses. Streeter v. Evans, 44 Vt. 27, 1871 Vt. LEXIS 84 (1871).

§ 1645. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 1645. Former § 1645 related to motion on affidavits and was derived from 1959, No. 261 , § 44. This section is now covered by V.R.C.P. 43(e).

§ 1646. Evidence of sexual conduct.

  1. In a civil action arising from alleged wrongful sexual activity and in professional licensing board administrative hearings where alleged wrongful sexual activity is an issue:
    1. Neither opinion evidence of, nor evidence of the reputation of the complaining witness’ sexual conduct shall be admitted.
    2. Evidence shall be required as it is for all other civil actions.
    3. Evidence of prior sexual conduct of the complaining witness shall not be admitted; provided, however, where it bears on the credibility of the complaining witness or it is material to a fact at issue and its probative value outweighs its private character, the court may admit:
      1. evidence of the complaining witness’ past sexual conduct with the defendant;
      2. evidence of specific instances of the complaining witness’ sexual conduct showing the source of origin of semen, pregnancy, or disease;
      3. evidence of specific instances of the complaining witness’ past false allegations of wrongful sexual activity.
  2. In a civil action arising from alleged wrongful sexual activity, if a party proposes to offer evidence described in subdivision (a)(3) of this section, that party shall prior to the introduction of such evidence file written notice of intent to introduce that evidence, and the court shall order an in camera hearing to determine its admissibility. All objections to materiality, credibility, and probative value shall be stated on the record by the opposing party at the in camera hearing, and the court shall rule on the objections immediately, and prior to the taking of any other evidence.

HISTORY: Added 1995, No. 170 (Adj. Sess.), § 22, eff. Sept. 1, 1996.

Subchapter 4. Immunities

§ 1661. Attesting witnesses to wills and other instruments.

The provisions of sections 1601-1609 and 1642 of this title shall not affect the law relating to the attestation of the execution of last wills and testaments or of any other instrument.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 49, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1744. P.L. § 1703. G.L. § 1900. P.S. § 1598. V.S. § 1248. R.L. § 1010. G.S. 36, § 26. 1853, No. 13 . 1852, No. 13 , § 3.

Amendments

—1971 (Adj. Sess.). Substituted “1601-1609” for “1601-1608, 1641”.

Revision note—1959. V.S. 1947, § 1744, has been divided into two sections which are set out as §§ 1661 and 1662 of this title.

§ 1662. Self incrimination—generally.

The provisions of sections 1601-1609 and 1642 of this title shall not compel a person to subject himself or herself by his or her testimony to a prosecution for a criminal offense.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 50, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1744, and statutes cited under § 1661 of this title.

Amendments

—1971 (Adj. Sess.). Substituted “1601-1609” for “1601-1608, 1641”.

CROSS REFERENCES

Insurance trade practices, see 8 V.S.A. ch. 129.

Privilege against self incrimination, see constitution, ch. 1, art. 10.

ANNOTATIONS

Cited.

Cited in State v. Ely, 167 Vt. 323, 708 A.2d 1332, 1997 Vt. LEXIS 286 (1997).

§ 1663. Suits or prosecutions for fraudulent conveyances.

When a person testifies in a suit or proceeding at law, his or her testimony shall not be used as evidence to prove any fact in a suit or prosecution against him or her for a penalty for violation of a law in relation to fraudulent conveyance of property.

HISTORY: 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1745. P.L. § 1704. G.L. § 1901. P.S. § 1599. V.S. § 1249. R.L. § 1011. G.S. 36, § 28. 1854, No. 5 .

Revision note—

Reference to proceeding “in equity” was omitted in view of merger of law and equity. See 1971, No. 185 (Adj. Sess.), § 236 and note set out under 4 V.S.A. chapter 5 and § 219.

§ 1664. Immunity of witnesses.

  1. Whenever a witness refuses, on the basis of his or her privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to a court or grand jury of the State of Vermont, and the presiding judge communicates to the witness an order issued under subsection (b) of this section, the witness may not refuse to comply with the order on the basis of his or her privilege against self-incrimination; but no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used for any purpose, including impeachment and cross-examination, against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.  The State shall have the burden of proving beyond a reasonable doubt that any proffered evidence was derived from sources totally independent of the compelled testimony.  If the witness is subsequently charged with an offense, other than perjury, the court may order the return of all copies of his or her compelled testimony.  Nothing in this section shall preclude the Attorney General or a State’s Attorney from entering into an agreement with a witness, or from requesting an order from the presiding judge under subsection (b) of this section, under which the witness shall not be prosecuted or subject to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he or she may testify or produce evidence and no testimony given or procured pursuant to such agreement shall be received against him or her in any criminal investigation, proceeding, or trial, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with a court order.
  2. In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court or grand jury of the State of Vermont, the presiding judge may issue in accordance with subsection (c) of this section, upon the request of the Attorney General or a State’s Attorney, an order requiring such individual to give testimony or provide other information which he or she refuses to give or provide on the basis of his or her privilege against self-incrimination, such order to become effective as provided in subsection (a) of this section.
  3. The Attorney General or a State’s Attorney may request an order under subsection (a) of this section when in his or her judgment:
    1. the testimony or other information from such individual may be necessary to the public interest; and
    2. such individual has refused or is likely to refuse to testify or provide other information on the basis of his or her privilege against self-incrimination.

HISTORY: 1971, No. 199 (Adj. Sess.), § 17, eff. July 1, 1972; 1973, No. 109 , § 1, eff. July 1, 1973; 1981, No. 223 (Adj. Sess.), § 22.

History

Source.

V.S. 1947, §§ 1746, 1747. P.L. §§ 1705, 1706. 1933, No. 34 , § 1. 1931, No. 38 , § 1.

Revision note—

Reference, in subsec. (a), to “county jail or the house of correction” was omitted pursuant to 1971, No. 199 (Adj. Sess.), § 17.

Amendments

—1981 (Adj. Sess.). Subsec. (a): Amended generally.

—1973. Section amended generally.

ANNOTATIONS

Constitutionality.

The provision of use and derivative use immunity to a reluctant witness pursuant to 12 V.S.A. § 1664(a) is consistent with the self-incrimination privilege established by Vt. Const. ch. I, art. 10, as long as “derivative use” is defined sufficiently broadly to provide equivalent protection to that provided by the privilege and certain procedural protections, such as requiring the State to show nonuse of the compelled evidence, are afforded. State v. Ely, 167 Vt. 323, 708 A.2d 1332, 1997 Vt. LEXIS 286 (1997).

Construction.

In Vermont, the power to grant witness immunity lies exclusively within the discretion of the prosecutor, and the State is under no constitutional obligation to confer such immunity. State v. Haner, 2007 VT 49, 182 Vt. 7, 928 A.2d 518, 2007 Vt. LEXIS 71 (2007).

In the limited circumstances where an exception to prosecutors’ exclusive authority to grant use immunity has been recognized, defendant has been faced with the difficult choice of testifying and risking self-incrimination or remaining silent and forfeiting other important rights. This rule has not been extended, however, to defense witnesses who invoke the privilege against self-incrimination, and the court has likewise been cautious to limit its applicability, even to defendants, to situations where public policy demands the availability of immunity. State v. Haner, 2007 VT 49, 182 Vt. 7, 928 A.2d 518, 2007 Vt. LEXIS 71 (2007).

Immunity can attach to statements made at different times even if they relate to the same incident; argument was rejected that since language under subsection (a) of this section refers to “an” agreement immunity cannot be given twice. State v. Briggs, 152 Vt. 531, 568 A.2d 779, 1989 Vt. LEXIS 204 (1989).

Under this section, the power to grant witness immunity, or to request a court order requiring a witness to testify subject to such immunity, vests exclusively within the discretion of the Attorney General and the State’s attorneys, not in the courts. State v. Hamlin, 146 Vt. 97, 499 A.2d 45, 1985 Vt. LEXIS 338 (1985).

Subsection (b) applies only to one testifying in prosecution or investigation within terms of subsec. (a). State v. Howard, 108 Vt. 137, 183 A. 497, 1936 Vt. LEXIS 163 (1936).

Repeated offers of immunity.

Successive offers of immunity and ultimate grant of immunity to witness were within the parameters of the State’s attorney’s discretion under this section; contention was rejected that repeated offers of immunity could only produce perjured testimony. State v. Briggs, 152 Vt. 531, 568 A.2d 779, 1989 Vt. LEXIS 204 (1989).

Scope of immunity.

Contrary to defendant’s assertion that the mere proffer of his brother’s facially exculpatory testimony triggered the court’s inherent power to grant defense witness immunity, defendant was required to make a convincing showing that the testimony which would be forthcoming was both clearly exculpatory and essential to his case before the court might compel immunity. State v. Haner, 2007 VT 49, 182 Vt. 7, 928 A.2d 518, 2007 Vt. LEXIS 71 (2007).

In case where defendant sought the grant of use immunity to his brother who had previously made exculpatory statements, in light of the increased motive of close relatives to fabricate exculpatory evidence, the inconsistencies between defendant’s confession and witnesses’ testimony, and the general circumstances surrounding the confession, defendant failed to make a “convincing showing” that the proffered testimony was “clearly exculpatory.” Because defendant failed to meet the first element of the test for judicial use immunity that he advanced, the trial court did not err as a matter of law when it declined to grant immunity to defendant’s brother. State v. Haner, 2007 VT 49, 182 Vt. 7, 928 A.2d 518, 2007 Vt. LEXIS 71 (2007).

Where individuals, who are compelled to testify in court or grand jury proceedings, wish to invoke their right against self-incrimination, their testimony, and any evidence derived directly or indirectly from it, cannot be used in subsequent criminal proceedings against them; this immunity applies only to those called to testify in a proceeding before or ancillary to a court or grand jury, not to administrative proceedings. State v. Welch, 160 Vt. 70, 624 A.2d 1105, 1992 Vt. LEXIS 214 (1992).

Immunity can be granted only insofar as a privilege against self-incrimination exists; statement by witness which obviously did not subject her to any criminal liability was not a proper subject of a grant of immunity. State v. Briggs, 152 Vt. 531, 568 A.2d 779, 1989 Vt. LEXIS 204 (1989).

This section does not support a grant of immunity exceeding what is necessary to supplant the privilege against self-incrimination. State v. Couture, 146 Vt. 268, 502 A.2d 846, 1985 Vt. LEXIS 382 (1985).

Cited.

Cited in State v. Foy, 144 Vt. 109, 475 A.2d 219, 1984 Vt. LEXIS 419 (1984); State v. Chambers, 144 Vt. 377, 477 A.2d 974, 1984 Vt. LEXIS 485 (1984).

Notes to Opinions

Felonies.

This section does not require involuntary self-incrimination where the accused is charged with arson, since arson is a felony and crimes punishable by fine or imprisonment in the county jail or house of correction are only misdemeanors. State v. Reynolds, 193 A.3d 168, 2018 Me. LEXIS 127 (Me. 2018).

Chapter 63. Records and Other Documents

§ 1691. Production of books and papers; subpoena duces tecum.

  1. In the trial of actions at law, and on motion and due notice, Supreme and Superior Courts may require the parties to produce any books or writings in their possession or power which contain evidence pertinent to the issue or relative to the action, and if the party fails to comply with the order, the court may render judgment against such party by nonsuit or default.
  2. When an action is pending in court against a person as cashier, director, or other officer of a bank, for a violation of the provisions of the general banking laws of this State or on a bond for the performance of his or her duties as cashier, director, or other officer of a bank, such court may compel the production of the books, papers, and records of the bank, upon trial, by service of a subpoena duces tecum on the officers of the bank having the same in charge.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3; 2009, No. 154 (Adj. Sess.), § 71.

History

Source.

V.S. 1947, § 1907. P.L. § 1854. G.L. § 2044. P.S. § 1765. V.S. § 1410. R.L. §§ 1177, 1212. G.S. 30, § 51. G.S. 41, § 8. 1851, No. 17 . R.S. 25, § 13. R.S. 36, § 8. R. 1797, p. 102, § 57. R. 1797, p. 315, § 2. R. 1787, p. 20.

Amendments

—2009 (Adj. Sess.) Subsec. (a): Substituted “notice supreme and superior courts may require” for “notice thereof given, supreme, superior and district courts may require” and inserted “any” preceding “books”.

—1973 (Adj. Sess.). Subsec. (a): Substituted “superior” for “county” preceding “court”.

CROSS REFERENCES

For subpoenas of documents and other tangible things, see V.R.C.P. 45.

ANNOTATIONS

Book account.

In actions on book, it rests ordinarily in discretion of auditor and county court to determine whether parties ought to be required to produce their original books. Ward v. Baker, 16 Vt. 287, 1844 Vt. LEXIS 67 (1844).

Due notice.

Court will not on trial order a party to produce a writing instanter; there must be due notice. Hastings v. Powers, 1 Tyl. 272 (Vt. Dec. 1, 1801).

§ 1691a. Procedure for production of employee personnel records.

  1. Policy.   It is the policy of this State that an employee’s personnel records should not be discovered by a party in a civil action without first giving the employee notice and an opportunity to object to the discovery of the records.
  2. Definitions.   As used in this section:
    1. “Civil action” means any action commenced pursuant to Rule 3 of the Vermont Rules of Civil Procedure except an action in which employment discrimination is alleged.
    2. “Employee” means an individual who is or was an employee of the employer within the meaning of Chapter 24 of the Internal Revenue Code of 1986.
    3. “Employer” has the meaning given such term in Section 3401(d) of the Internal Revenue Code of 1986 and includes the State or any political subdivision or instrumentality of the State.
    4. “Personnel record” means any written or electronic record relating to an employee, including:
      1. information regarding the employee’s job description, compensation, and employment benefits;
      2. hiring, evaluation, work habits, promotion, and discipline records;
      3. employment records maintained in accordance with State and federal law;
      4. physical, medical, and psychological condition; and
      5. personal finances.
  3. Notice to employee.   A party in any civil action seeking the production of the personnel records of an employee in such action, shall notify the employee whose records are being sought. Upon request, pursuant to Rule 26 of the Vermont Rules of Civil Procedure, the employer shall furnish to the requesting party the name and last known address of the employee whose records are specifically being sought for production for the purpose of giving such notice.
  4. Service of notice.   The notice to the employee shall be served on the employee by first class mail at the employee’s last known address at the time such disclosure is sought. Service shall be complete upon mailing of the notice.
  5. Contents of notice.   The notice shall include a copy of the request and shall inform the employee:
    1. that a request for production of the employee’s personnel records has been made;
    2. the name, address, and telephone number of the party or attorney making the request;
    3. the name and address of the court in which the action is pending;
    4. the name of the employer to whom the request has been made; and
    5. an explanation of the employee’s rights under subsection (f) of this section.
  6. Employee right to respond and object.   Prior to the disclosure of the records to the requesting party, the employee whose records are being sought shall have 20 days after service of the notice to respond to the request. The response shall be filed with the court and may include an objection to the production of the records on the grounds that production of the records will cause the employee annoyance, embarrassment, oppression, undue burden or expense, or other grounds provided by law. A copy of the response shall be served on the requesting party.
  7. Employee right to be heard.   Before ruling on a request for a personnel record, upon request the court shall give the employee whose record is being sought an opportunity to be heard.
  8. Protective order.   If the court grants the party’s request for production of the records of the employee, the court may limit discovery as provided for in Rule 26(c) of the Vermont Rules of Civil Procedure (protective order).
  9. No employee response or objection.   The duty to produce personnel records shall be determined as provided by law without requiring the participation of the employee if:
    1. the employee does not respond to the notice by the requesting party within 20 days; or
    2. the employee notifies the requesting party in writing that he or she does not object to the production of the records.
  10. Employer’s independent basis to resist production; employee’s right to review and copy records.   The provisions of this section shall not preclude an employer from asserting any independent basis to resist the production of personnel records as provided by law and shall not limit the right of the employee to review and copy his or her personnel records pursuant to law.

HISTORY: Added 1997, No. 105 (Adj. Sess.), § 1.

History

References in text.

The Internal Revenue Code, cited in subsec. (b), is codified as Title 26 of the U.S. Code. Chapter 24 of the code is 26 U.S.C. § 3401 et seq.

ANNOTATIONS

Discovery.

Nothing in 12 V.S.A. 1691a creates a privilege for discovery purposes; under the statute, discovery may be compelled, denied, or limited by a protective order at the court’s discretion; instead of privileging such materials, the statute merely creates a process for considering any objections an employee might have to producing the files. Turner v. Vt. Ctr. for the Deaf & Hard of Hearing, Inc., 2003 U.S. Dist. LEXIS 20552 (D. Vt. Oct. 1, 2003).

§ 1692. Certified copies of public records admissible.

Unless otherwise provided, a certified or photographic copy of a record or document required by statute to be kept by a public official shall be competent evidence in a court in this State. Such official shall be a certifying officer for such purpose.

History

Source.

V.S. 1947, § 1749. 1945, No. 26 , § 1. P.L. § 1707. 1933, No. 157 , § 1547. 1923, No. 7 , § 8.

CROSS REFERENCES

For proof and authentication of records, see, see V.R.C.P. 44.

Lost court records, see 4 V.S.A. §§ 732-740 .

Successor in office, certification of records by, see 4 V.S.A. § 739 .

ANNOTATIONS

Certified copies of deeds as proof of title.

It may be regarded as the settled law and practice in this state, in making title to real estate, that party may prove various links in his chain of title by certified copies of deeds from records of deeds in town clerk’s office. Pratt v. Battles, 34 Vt. 391 (1861), same case 28 Vt. 685.

Conviction of crime.

Copies of records of burglary conviction of witness in murder trial, certified by the Commissioner of Public Safety and the Director of Public Records, were properly received in evidence. State v. Miner, 128 Vt. 55, 258 A.2d 815, 1969 Vt. LEXIS 202 (1969).

§ 1693. Weather record.

A copy of the record of weather observations, taken under the direction of any department of the U.S. government, may be received in evidence in a civil cause in any court, if certified under oath by the officer in charge thereof at the place where the same was taken and kept. Such certified copy shall be prima facie evidence of the facts stated therein.

History

Source.

V.S. 1947, § 1750. P.L. § 1708. G.L. § 1902. 1910, No. 86 . P.S. § 1600. V.S. § 1250. R.L. § 1012. 1880, No. 27 .

CROSS REFERENCES

Effect of statutes making one fact prima facie evidence of another fact, see V.R.E. 301(b).

§ 1694. Municipal ordinances; references in prosecutions.

In a prosecution for violation of an ordinance or bylaw of a municipal corporation, a copy thereof certified by its clerk to be a lawfully enacted and existing ordinance or bylaw of such municipal corporation shall be prima facie evidence thereof. The allegation that the acts constituting the offense charged are contrary to the form of such ordinance or bylaw, in such case made and provided, shall be a sufficient reference thereto.

HISTORY: Amended 1971, No. 228 (Adj. Sess.), § 28, eff. July 1, 1972.

History

Source.

V.S. 1947, § 1752. P.L. § 1710. 1923, No. 47 .

Amendments

—1971 (Adj. Sess.). Substituted “in such case made and provided” for “therein specified”.

CROSS REFERENCES

For proof and authentication of records, see V.R.C.P. 44.

ANNOTATIONS

Judicial notice.

Where the ordinances in question are not a part of the record, the court cannot take judicial notice of them. Eno v. City of Burlington, 125 Vt. 8, 209 A.2d 499, 1965 Vt. LEXIS 190 (1965).

A court cannot take judicial notice of a local ordinance. Hebert v. Stanley, 124 Vt. 205, 201 A.2d 698, 1964 Vt. LEXIS 84 (1964).

§ 1695. Records of births, civil marriages, and deaths.

  1. A record of births, civil marriages, or deaths required by law to be kept or any certified copy thereof, shall not be competent evidence in any trial to prove a fact stated therein, except the fact of birth, civil marriage, or death.
  2. “Fact of birth” shall include only the name of the child born, the sex thereof, the place and date of the birth, the name of the father, and the maiden name of the mother, except that in bastardy proceedings a birth certificate shall not be evidence to prove the identity of the father.
  3. “Fact of civil marriage” shall include only the name of the parties to the civil marriage, the place and date of the civil marriage ceremony, and the name of the clergy or magistrate officiating at such ceremony.
  4. “Fact of death” shall include only the names of the deceased person, his or her sex, and the date and place of his or her death.

History

Revision note

—2009. Substituted “civil marriage” for “marriage” throughout the section in accordance with 2009, No. 3 , § 12a.

Source.

V.S. 1947, § 1751. 1945, No. 27 , § 1. P.L. § 1709. G.L. § 1903. P.S. § 1601. 1902, No. 44 , § 1.

CROSS REFERENCES

For proof and authentication of records, see V.R.C.P. 44.

§ 1696. Foreign records—births, marriages, and deaths.

A copy of the record of a birth, death, or marriage in another state or foreign country, certified under oath to be a true copy thereof, by a person who certifies under oath that he or she is the legal custodian of such record and that the laws of such state or foreign country require such birth, death, or marriage to be recorded, shall be received in the courts of this State as prima facie evidence of such birth, death, or marriage.

History

Source.

V.S. 1947, § 1757. P.L. § 1711. 1919, No. 72 , § 1.

CROSS REFERENCES

For proof and authentication of records, see V.R.C.P. 44.

§ 1697. Deeds, mortgages, and other public records.

A copy of the record of a deed, mortgage, or public record of another state or foreign country shall be received by the courts of this State as prima facie evidence of such document, if such copy is certified under oath to be a true copy thereof by a person who certifies under oath that he or she is the legal custodian thereof, and that the laws of such state or foreign country require such document to be recorded.

History

Source.

V.S. 1947, § 1758. P.L. § 1712. 1919, No. 72 , § 2.

CROSS REFERENCES

For proof and authentication of records, see V.R.C.P. 44.

§ 1698. Judgments.

A copy of the record of a judgment of a court of another state or foreign country shall be received by the courts of this State as prima facie evidence of such judgment, if such copy is certified under oath by the clerk of the court rendering such judgment to be a true copy thereof, that he or she is the legal custodian thereof, that the laws of such state or foreign country require such judgment to be recorded, and with a certificate under the seal of such court that he or she is such clerk or if without a seal, to be so certified.

History

Source.

V.S. 1947, § 1759. P.L. § 1712. 1919, No. 72 , § 2.

CROSS REFERENCES

For proof and authentication of records, see V.R.C.P. 44.

§ 1699. Foreign laws and decisions; determination by court.

The statutes, laws, and decisions of another state may be evidenced, prima facie, in the courts of this State by a printed copy of the laws, which purports to be published by the authority of the other state. The determination of the laws shall be made by the court and not by the jury and shall be reviewable.

HISTORY: Amended 2021, No. 53 , § 3.

History

Source.

V.S. 1947, § 1760. 1937, No. 43 , § 1. P.L. § 1713. 1919, No. 72 , § 3.

Amendments

—2021. Section amended generally.

CROSS REFERENCES

For proof and authentication of records and determination of local and foreign law, see V.R.C.P. 44, 44.1.

ANNOTATIONS

Judicial notice.

Probate court of Vermont may take judicial notice of New Hampshire law. In re Estate of Holbrook, 138 Vt. 597, 420 A.2d 110, 1980 Vt. LEXIS 1373 (1980).

Under section, Supreme Court could take judicial notice of provisions of statute of another state. In re Estate of Holden, 110 Vt. 60, 1 A.2d 721, 53 Harv. L. Rev. 343, 50 Yale L.J. 1021, 53 Yale L.J. 267 (1938); Cukor v. Cukor, 114 Vt. 456, 49 A.2d 206, 1946 Vt. LEXIS 95 (1946).

Law governing.

In suit for money due on loan executed in Connecticut, it was error to allow introduction in evidence of Connecticut statute relating to interest recoverable, and to apply the statute, where the statute had not been plead. Fishbein v. Guerra, 131 Vt. 493, 309 A.2d 922, 1973 Vt. LEXIS 337 (1973).

Although law of Massachusetts, where notes sued on were made, delivered and payable, was applicable, absent any prima facie showing of Massachusetts authority, trial court was justified in turning to law of Vermont, where action was tried. Pioneer Credit Corp. v. Carden, 127 Vt. 229, 245 A.2d 891, 1968 Vt. LEXIS 212 (1968).

Testimony of witness.

Testimony of witness who swears to acquaintance with statute of another state is sufficient to prove same. Auto Owners Finance Co. v. Rock, 121 Vt. 194, 151 A.2d 292, 1959 Vt. LEXIS 107 (1959).

§ 1700. Uniform Business Records as Evidence Act.

  1. The term “business,” as used in subsection (b) of this section, shall include every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not.
  2. A record of an act, condition, or event shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the court, the sources of information, method, and time of preparation were such as to justify its admission.
  3. This section shall be so interpreted and construed as to effectuate the general purpose to make uniform the law of those states which enact it.

History

Source.

V.S. 1947, §§ 1753-1755. 1939, No. 48 , §§ 1-3.

Short title; Uniform laws. V.S. 1947, § 1756, derived from 1939, No. 48 , § 4, provided that §§ 1753-1756 thereof might be cited as the “Uniform Business Records as Evidence Act.”

This Uniform Act was promulgated by the National Conference of Commissioners on Uniform State Laws in 1936. Its substance is included in the Uniform Rules of Evidence adopted by the National Conference and the American Law Institute in 1953.

CROSS REFERENCES

Corporate records and reports, see 11A V.S.A. ch. 16.

ANNOTATIONS

Bill for services.

In action for value of surveying services rendered, bill stating it was for research, field inspection and survey to date, quoting prices for salaries through certain date, without further itemization, as to which witness stated it came from regular business records, the witness not stating whether the work was the work for which recovery was being sought or testifying as to mode of preparation of the bill, was inadmissible. Dufresne-Henry Eng. Corp. v. Gilcris Ent., Inc., 136 Vt. 274, 388 A.2d 416, 1978 Vt. LEXIS 733 (1978).

Common law.

So far as rules relating to admission of ledger entries as evidence, especially those made in book of a person not a party to action being tried, are set forth in section, they govern to the exclusion of common law on that subject. Crowley v. Goodrich, 114 Vt. 304, 44 A.2d 128, 1945 Vt. LEXIS 85 (1945).

Computer data.

For a business record to be admissible under the Uniform Business Records as Evidence Act no particular mode or form of record is required, and if entries are made into a computer data bank in the regular course of business and stored there, a printout containing the entries should not be excluded from evidence because it was made after the underlying events; the printout is as much a business record as would be a page from a ledger book bearing the same information. Westinghouse Electric v. B. L. Allen, Inc., 138 Vt. 84, 413 A.2d 122, 1980 Vt. LEXIS 1055 (1980).

Copies.

Exhibits, offered as business records of the department of health, which were true and accurate copies of reports on file in the department, normally and regularly prepared after evaluations of water systems, were within the ambit of business records and, therefore, subject to the strictures of this section and section 1701 of this title, the Uniform Photographic Copies of Business and Public Records as Evidence Act. Kinney v. Johnson, 142 Vt. 299, 454 A.2d 1238, 1982 Vt. LEXIS 638 (1982).

Discretion of court.

The qualifications of the qualified witness who must testify to identity and mode of preparation of a business record and whether it was made in regular course of business at or near time of what it records, and the sufficiency of the testimony of the witness, are for the trial court to determine in the exercise of its discretion and the light of the sources of information and the method and time of preparation, when admission of a business record in evidence is sought. Westinghouse Electric v. B. L. Allen, Inc., 138 Vt. 84, 413 A.2d 122, 1980 Vt. LEXIS 1055 (1980).

A trial court is vested with considerable discretion when passing on the admissibility of a business record. Dufresne-Henry Eng. Corp. v. Gilcris Ent., Inc., 136 Vt. 274, 388 A.2d 416, 1978 Vt. LEXIS 733 (1978).

Under Uniform Business Records as Evidence Act the trial court is vested with considerable discretion in passing on the qualification of the witness through whom the records are sought to be introduced, the sources of his information and the sufficiency of the identification. Colonial Plumbing Corp. v. Solar Heating, Inc., 133 Vt. 82, 329 A.2d 638, 1974 Vt. LEXIS 290 (1974).

Hospital admissions.

Records of two admissions of witness to Vermont State Hospital were properly excluded where they did not meet statutory requirement for admission of business records, they could not have been of evidentiary value to their claimed purpose of showing witness had mental problems both at the time of killing which defendant was accused of and at the time of witness’ testimony, and defendant showed no prejudice. State v. Berard, 132 Vt. 138, 315 A.2d 501, 1974 Vt. LEXIS 315, cert. denied, 417 U.S. 950, 94 S. Ct. 3078, 41 L. Ed. 2d 671, 1974 U.S. LEXIS 2010 (1974).

Hospital credit application.

Whether there was error in restricted admission of copy of hospital credit application was immaterial. De Goesbriand Mem. Hospital v. Alburg, 122 Vt. 275, 169 A.2d 360, 1961 Vt. LEXIS 70 (1961).

Ledger entries.

In action for materials supplied, salesman, though not the custodian of plaintiff’s ledger card and invoices showing defendant’s account, could identify them and the mode of their preparation as a foundation for their admission, under provision of this section providing that admissibility was conditioned on trial court’s opinion that “the sources of information, method and time of preparation were such as to justify its admission”. Colonial Plumbing Corp. v. Solar Heating, Inc., 133 Vt. 82, 329 A.2d 638, 1974 Vt. LEXIS 290 (1974).

Court has a reasonable discretion in matter of admitting or excluding ledger entries. Crowley v. Goodrich, 114 Vt. 304, 44 A.2d 128, 1945 Vt. LEXIS 85 (1945).

Memoranda.

Exhibits consisting of memoranda regarding telephone conversations were properly admitted where offered for the limited purpose of proving that the telephone calls were received, and the exhibits, being regularly filed and indexed memoranda on letterhead paper, were business records. Kinney v. Johnson, 142 Vt. 299, 454 A.2d 1238, 1982 Vt. LEXIS 638 (1982).

Mode of preparation.

Under this section, a qualified witness must testify to the identity of the record and its mode of preparation, testimony as to mode of preparation being required as another means of establishing reliability. Dufresne-Henry Eng. Corp. v. Gilcris Ent., Inc., 136 Vt. 274, 388 A.2d 416, 1978 Vt. LEXIS 733 (1978).

Police accident reports.

Police accident reports are not admissible in civil case under authority of uniform business records as evidence act. Vladyka v. Page, 135 Vt. 252, 373 A.2d 539, 1977 Vt. LEXIS 599 (1977).

Prisoner furloughs.

Where prisoner’s furlough record sheet, a log showing who had been released and on what terms, was admitted through desk officer at correctional center, who testified record was regularly prepared and that a number of checks were built into the preparation, and prisoner, tried for escape from work release, failed to adduce any proof throwing suspicion on genuineness of the record, it was not error to admit the record to show prisoner was released pursuant to valid work release order and that he violated that order. State v. Burclaff, 138 Vt. 461, 418 A.2d 38, 1980 Vt. LEXIS 1266 (1980).

Purpose.

Questions concerning the admissibility of business records such as a bill for services allegedly performed are governed by this section, the purpose of which is to ease the requirement that the person actually keeping the record testify as to its accuracy. Dufresne-Henry Eng. Corp. v. Gilcris Ent., Inc., 136 Vt. 274, 388 A.2d 416, 1978 Vt. LEXIS 733 (1978).

Uniform Business Records as Evidence Act provides relief from the stringent common law rules of evidence, which required testimony from the actual custodian of the records or the person who made the original entry as a sufficient foundation for the introduction of a business record into evidence. Colonial Plumbing Corp. v. Solar Heating, Inc., 133 Vt. 82, 329 A.2d 638, 1974 Vt. LEXIS 290 (1974).

Tests and standards.

Since the purpose of Uniform Business Records as Evidence Act is to provide relief from rigid common law rules on admissibility of business records, records offered in evidence ought to be received unless the trial court entertains serious doubt as to their dependability. Westinghouse Electric v. B. L. Allen, Inc., 138 Vt. 84, 413 A.2d 122, 1980 Vt. LEXIS 1055 (1980).

In absence of some proof throwing suspicion upon genuineness of a business record, it is sufficient, to establish its admissibility, if it is verified by a witness who can testify that records of that type have been regularly prepared under a routine warranting reliability and that the particular record in question is of that class; where reliability is questioned it is within court’s discretion to require a greater showing on the part of the proponent of the record. State v. Burclaff, 138 Vt. 461, 418 A.2d 38, 1980 Vt. LEXIS 1266 (1980).

Time of entry.

Entry in an account book is properly excluded when it is not shown that the entry was made at or near the time of the events which it purported to record. Wortheim v. Brace, 116 Vt. 9, 68 A.2d 719, 1949 Vt. LEXIS 95 (1949).

§ 1701. Uniform Photographic Copies of Business and Public Records as Evidence Act.

  1. If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation, or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless held in a custodial or fiduciary capacity or unless its preservation is required by law.  Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court.  The introduction of a reproduced record, enlargement, or facsimile does not preclude admission of the original.
  2. This section shall be so interpreted and construed as to effectuate its general purpose of making uniform the law of those states which enact it.

History

Source.

1953, No. 138 , §§ 1, 2.

Short title; Uniform laws. 1953, No. 138 , § 3, provided that such act (this section) may be cited as the “Uniform Photographic Copies of Business and Public Records as Evidence Act.”

This Uniform Act was promulgated by the National Conference of Commissioners on Uniform State Laws in 1949. Its substance is included in the Uniform Rules of Evidence adopted by the National Conference and the American Law Institute in 1953.

CROSS REFERENCES

Corporate records and reports, see 11A V.S.A. ch. 16.

ANNOTATIONS

Business records.

Exhibits, offered as business records of the department of health, which were true and accurate copies of reports on file in the department, normally and regularly prepared after evaluations of water systems, were within the ambit of business records and, therefore, subject to the strictures of section 1700 of this title, the Uniform Business Records as Evidence Act, and this section. Kinney v. Johnson, 142 Vt. 299, 454 A.2d 1238, 1982 Vt. LEXIS 638 (1982).

Construction.

This section does not require showing that original of item offered as evidence is unavailable; the only requirements are evidence that the record was made in the regular course of business and that the regular course of business was to make such records contemporaneously or within a reasonable time thereafter. State v. Colby, 139 Vt. 475, 431 A.2d 462, 1981 Vt. LEXIS 500 (1981).

§ 1702. Missing persons—finding of presumed death under Federal Missing Persons Act.

A written finding of presumed death, made by the officer or employee of the United States authorized to make such finding, pursuant to the Federal Missing Persons Act, as now or hereafter amended, or a duly certified copy of such finding, shall be received in any court, office, or other place in this State as evidence of the death of the person therein found to be dead, and of the date, circumstances, and place of his or her disappearance.

History

Source.

V.S. 1947, § 1794. 1945, No. 28 , § 1.

Revision note—

Words “the secretary of war, the secretary of the navy, or other officer or employee of the United States” were changed to “the officer or employee of the United States.” The secretary of war no longer exists and the general phrase will include any officer or employee included in the federal missing persons act.

V.S. 1947, § 1797, derived from 1945, No. 28 , § 4, contained a separability provision applicable to §§ 1702-1704 of this title.

§ 1703. Report as to status.

An official written report or a record or duly certified copy thereof, made by such officer or employee, that a person is missing, missing in action, interned in a neutral country, beleaguered, besieged, or captured by an enemy, or is dead or is alive, shall be received in any court, office, or other place in this State as evidence that such person’s status is as stated therein at the time of such report.

History

Source.

V.S. 1947, § 1795. 1945, No. 28 , § 2.

§ 1704. Finding or report as prima facie evidence.

For the purposes of sections 1702-1704 of this title any finding, report, or record, or duly certified copy thereof, purporting to have been signed by such an officer or employee of the United States as is described in section 1702 of this title, shall prima facie be deemed to have been signed and issued by such an officer or employee pursuant to law, and the person signing same shall prima facie be deemed to have acted within the scope of his or her authority. If a copy purports to have been certified by a person authorized by law to certify the same, such certified copy shall be prima facie evidence of his or her authority so to certify.

History

Source.

V.S. 1947, § 1796. 1945, No. 28 , § 3.

Revision note—

See note under § 1702 of this title.

§ 1705. HIV-related testing information.

  1. No court of this State shall issue an order requiring the disclosure of individually-identifiable HIV-related testing or counseling information unless the court finds that the person seeking the information has demonstrated a compelling need for it that cannot be accommodated by other means.  In assessing compelling need, the court shall weigh the need for disclosure against the privacy interest of the test subject and the public interest which may be disserved by disclosure which deters future testing or which may lead to discrimination.
  2. Pleadings pertaining to disclosure of HIV-related testing and counseling information shall substitute a pseudonym for the true name of the subject of the test.  The subject’s true name shall be communicated confidentially to the court and those parties who have a compelling need to know the subject’s true name.  All documents filed with the court which identify the subject’s true name shall not be disclosed to any person other than those parties who have a compelling need to know the subject’s true name and the subject of the test.  All such documents shall be sealed upon the conclusion of proceedings under this section.
  3. Before granting any such order, the court shall provide the individual whose test information is in question with notice and a reasonable opportunity to participate in the proceedings if he or she is not already a party.
  4. Court proceedings as to disclosure of counseling and testing information shall be conducted in camera unless the subject of the test agrees to a hearing in open court or unless the court determines that a public hearing is necessary to the public interest and the proper administration of justice.
  5. Upon issuance of an order to disclose test results, the court shall impose appropriate safeguards against unauthorized disclosure, which shall specify the persons who may have access to the information, the purposes for which the information shall be used, and appropriate prohibitions on future disclosure.

HISTORY: Added 1987, No. 194 (Adj. Sess.), § 3.

History

Notification to individuals for cases previously reported. 2007, No. 73 , § 4 provides: “The department shall collaborate with individuals living with HIV or AIDS, representatives of the Vermont AIDS service organizations, and health care providers, to notify individuals for whom HIV-positive test results were reported by unique identifier that a new report will be made to the health department using the individual’s name.”

CROSS REFERENCES

Human immunodeficiency virus (HIV) testing generally, see 18 V.S.A. §§ 1127 , 1128.

Part 5. Trial and Judgment

Chapter 81. Conduct of Trial

Subchapter 1. Generally

§ 1901. Exclusion of public.

When a cause of scandalous or obscene nature is on trial, the presiding judge or the justice shall exclude therefrom all minors, unless necessarily present as parties or witnesses, and in his or her discretion, may exclude all persons not so present.

History

Source.

V.S. 1947, § 1273. P.L. § 1241. G.L. § 1485. P.S. § 1229. V.S. § 906. 1886, No. 60 , § 1.

Editor’s note

—2002. The words “or the justice” are obsolete since justices of the peace no longer preside at trials.

§ 1902. Repealed. 1969, No. 222 (Adj. Sess.), § 5.

History

Former § 1902. Former § 1902 related to time for trial when member of General Assembly is party or attorney and was derived from 1955, No. 26 .

Annotations From Former § 1902

Constitutionality.

Section infringed upon the normal judicial processes delegated to the judiciary, and guaranteed to litigants under the Vermont Constitution, and was invalid because: (1) it granted to a member or official of the legislature, if a party or an attorney of record, a privilege or indulgence in the courts which no other person had or enjoyed; (2) the legislature had intruded itself into the internal administration reserved to the judiciary thereby depriving the courts of authority to decide when cases governed by statute may be called for trial; and (3) it deprived the courts of judicial discretion to grant a continuance of cases. Granai v. Witters, Longmoore, Akley & Brown, 123 Vt. 468, 194 A.2d 391, 1963 Vt. LEXIS 136 (1963).

§§ 1903, 1904. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 1903, 1904. Former §§ 1903, 1904 related to trial by court, assessment of damages by jury, judges.

Former § 1903 was derived from V.S. 1947, § 1402; P.L. § 1368; G.L. § 1606; P.S. § 1353; V.S. § 1011; R.L. § 800; G.S. 30, § 36; R.S. 26, § 20; 1821, p. 74; R. 1797, p. 108, § 72; R. 1787, p. 83, § 4.

Former § 1904 was derived from V.S. 1947, §§ 1908, 1909; P.L. §§ 1855, 1856; G.L. §§ 2045, 2046; P.S. §§ 1766, 1767; V.S. §§ 1411, 1412; R.L. §§ 1178, 1179; G.S. 30, §§ 48, 49; R.S. 25, § 32; 1846, No. 32 ; R. 1797, p. 100, § 54; R. 1787, p. 44.

§ 1905. Eminent domain; findings of damages; instructions to jury.

A trier of fact in proceedings to determine damages due the owner of land taken by a governmental body by eminent domain shall find separately the value of each element thereof specified in 19 V.S.A. § 501(2) . When a judge submits the determination thereof to a jury, he or she shall instruct the jury that they shall bring in a special verdict on each of those elements involved in the case.

HISTORY: 1961, No. 179 .

History

Revision note

—2011. The reference to 221(2) of Title 19 was changed to 19 V.S.A. § 501(2) for purposes of clarity and to correct the reference due to the recodification of Title 19.

This section was formerly set out as § 1904a.

Former § 1905, relating to exceptions to evidence has been repealed.

ANNOTATIONS

Separate findings.

If a jury, upon proper instructions, determines that the taking of a property owner’s lands did not totally destroy his business, it may compensate him for his consequential damages in a special verdict, brought pursuant to this section, for diminution in value of the business remaining, as provided in subdivision (2) of 19 V.S.A. § 221 . Sharp v. Transportation Board, 141 Vt. 480, 451 A.2d 1074, 1982 Vt. LEXIS 660 (1982).

Special verdicts are required to be returned by the jury for each element of damage involved in a case as specified in 19 V.S.A. § 221(2) , but on the other hand the highway board is only required to fix compensation to be paid to each person from whom land or rights are taken as provided in 19 V.S.A. § 230 . Fiske v. State Highway Board, 125 Vt. 17, 209 A.2d 482, 1965 Vt. LEXIS 191 (1965).

Cited.

Cited in Winooski Hydroelectric Co. v. Five Acres of Land, 769 F.2d 79, 1985 U.S. App. LEXIS 21901 (2d Cir. 1985).

§ 1906. Repealed. 1959, No. 261, § 68.

History

Former § 1906. Former § 1906 relating to exceptions to evidence and was derived from V.S. 1947, § 1628; 1947, No. 202 , § 1663; 1945, No. 30 , §§ 1-7.

§ 1907. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 1907. Former § 1907, relating to separate trials and was derived from 1959, No. 261 , § 28.

Such section is now covered by V.R.C.P. 42(b).

§ 1908. Burden of proof.

For the purpose of this section, malpractice shall mean professional medical negligence comprised of the elements listed herein. In a malpractice action based on the negligence of the personnel of a hospital, a physician licensed under 26 V.S.A. chapter 23, a dentist licensed under 26 V.S.A. chapter 13, a podiatrist licensed under 26 V.S.A. chapter 7, a chiropractor licensed under 26 V.S.A. chapter 9, a nurse licensed under 26 V.S.A. chapter 27, or an osteopathic physician licensed under 26 V.S.A. chapter 33, the plaintiff shall have the burden of proving:

  1. the degree of knowledge or skill possessed or the degree of care ordinarily exercised by a reasonably skillful, careful, and prudent health care professional engaged in a similar practice under the same or similar circumstances whether or not within the State of Vermont;
  2. that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
  3. that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

HISTORY: Added 1975, No. 250 (Adj. Sess.), § 2, eff. April 7, 1976.

History

References in text.

26 V.S.A. chapter 13, referred to in the introductory paragraph, consisting of subchapters 1 through 5, was repealed by multiple acts. Sections 721-724, 761, 763, 767, 801, 802, 804, 805, 808-812, 851, 853, 854, 856 and 861-867, were repealed by 2011, No, 116 (Adj. Sess.), § 12; § 725 was repealed by 2007, No. 29 , § 77; § 762 was repealed by 2005, No. 27 , § 117(1); § 813 was repealed by 1993, No. 108 (Adj. Sess.), § 21; §§ 764, 765, 806, and 807 were repealed by 1977, No. 255 (Adj. Sess.), § 9, § 766 were repealed by 1969, No. 81 , § 10; § 855 was repealed by 1969, No. 81 , § 24 and §§ 803 and 852 were repealed by 1961, No. 172 (Adj. Sess.), § 5.

Chapter 27 of Title 26, cited in this section, was repealed by 1979, No. 192 (Adj. Sess.), § 2. Present similar provisions may be found in chapter 28 of Title 26.

ANNOTATIONS

Cessation of treatment.

Whether or not a doctor has ceased treating a patient is irrelevant to whether he or she may be held liable for injuries resulting from his or her failure to exercise the proper degree of care while treating the patient. It is the doctor’s responsibility for the services provided that is significant here, and not simply the duration of the doctor-patient relationship itself. White v. Harris, 2011 VT 115, 190 Vt. 647, 36 A.3d 203, 2011 Vt. LEXIS 116 (2011).

Evidence.

In medical malpractice, as in tort law generally, plaintiff must prove that as a result of defendant’s conduct the injuries “would not otherwise have been incurred,” and therefore, an act or omission of defendant cannot be considered a cause of plaintiff’s injury if the injury would probably have occurred without it. Wilkins v. Lamoille County Mental Health Services, Inc., 2005 VT 121, 179 Vt. 107, 889 A.2d 245, 2005 Vt. LEXIS 298 (2005).

Where plaintiff must prove that as a result of the defendant’s conduct the injuries “would not otherwise have been incurred,” an act or omission of defendant cannot be considered a cause of the plaintiff’s injury if the injury would probably have occurred without it; accordingly, where this was the state of the evidence, summary judgment in favor of defendant was sound under the law. Smith v. Parrott, 2003 VT 64, 175 Vt. 375, 833 A.2d 843, 2003 Vt. LEXIS 154 (2003).

Testimony of plaintiff’s expert witness that plaintiff’s injury would not have happened but for the lack of requisite care, that the extent of plaintiff’s prior injury was not fully appreciated by defendant before surgery, that the surgery was performed without sufficient information, and as a result plaintiff suffered an injury that should have been avoided, was sufficient to allow a jury to find proximate cause. Jones v. Block, 171 Vt. 569, 762 A.2d 846, 2000 Vt. LEXIS 303 (2000) (mem.).

Although it is true that breach of standard of care cannot be based solely on a bad medical result, there was sufficient other evidence to permit a reasonable jury, drawing reasonable inferences from the evidence introduced, to conclude that defendant breached standard of care. Lockwood v. Lord, 163 Vt. 210, 657 A.2d 555, 1994 Vt. LEXIS 192 (1994).

Expert testimony.

The standard-of-care and causation elements of professional negligence claims ordinarily must be proved by expert testimony, and this is no less true of claims relating to the negligent treatment or assessment of patients at risk of committing suicide. Wilkins v. Lamoille County Mental Health Services, Inc., 2005 VT 121, 179 Vt. 107, 889 A.2d 245, 2005 Vt. LEXIS 298 (2005).

Where expert testimony suggested that, had physician either performed a diagnostic test or made a referral to a urologist, there was a significant chance that patient’s cancer would have been organ-confined and, therefore, could have been cured by radiation or radical prostatectomy, physician’s negligence deprived patient of a significant chance for recovery and under the loss of a chance doctrine, physician’s failure to diagnose was a proximate cause of patient’s harm. Short v. United States, 908 F. Supp. 227, 1995 U.S. Dist. LEXIS 18062 (D. Vt. 1995).

Trial court in a medical malpractice action need not charge the jury that the plaintiff must introduce expert testimony to prove each element of medical malpractice. Deyo v. Kinley, 152 Vt. 196, 565 A.2d 1286, 1989 Vt. LEXIS 167 (1989).

Ordinarily, elements of malpractice set out in this section must be proved by expert testimony. Begin v. Richmond, 150 Vt. 517, 555 A.2d 363, 1988 Vt. LEXIS 201 (1988).

Evidence was sufficient for jury under this section where plaintiffs’ expert testified that the standard of care for urologist was to inform patient that a vasectomy can recanalize at any time, that defendant’s actions fell below standard of care, and that pregnancy was caused by recanalization. Begin v. Richmond, 150 Vt. 517, 555 A.2d 363, 1988 Vt. LEXIS 201 (1988).

Normally the burden of proof imposed by this section will be satisfied only by expert testimony. Larson v. Candlish, 144 Vt. 499, 480 A.2d 417, 1984 Vt. LEXIS 511 (1984).

An exception to the rule requiring expert testimony in medical malpractice cases exists where the alleged violation of the standard of care is so apparent that it may be understood by a lay trier of fact without the aid of an expert. Larson v. Candlish, 144 Vt. 499, 480 A.2d 417, 1984 Vt. LEXIS 511 (1984).

Plaintiff in professional malpractice action, who alleged that dentist violated applicable standards of care by administering novocaine, rather than nitrous oxide gas, during root canal procedure, but offered no evidence except for her own unsubstantiated opinion that the dentist had failed properly to perform the procedure, failed to carry her burden of proof, since alleged deviation from accepted practices was not so obvious as to preclude the requirement of expert testimony. Larson v. Candlish, 144 Vt. 499, 480 A.2d 417, 1984 Vt. LEXIS 511 (1984).

Jury instructions.

Trial court’s improper instructions on standard of care were not cured by context in which they appeared because, although beginning and end of standard-of-care instruction correctly stated law, “mere error of judgment” language may even have misled jury to think that selection of appropriate course of treatment absolves doctor from liability regardless of administration of that treatment. Rooney v. Medical Center Hospital of Vermont, Inc., 162 Vt. 513, 649 A.2d 756, 1994 Vt. LEXIS 107 (1994).

Trial court’s instruction on proper standard of care improperly permitted jury to conclude that physician who lacked requisite skill or knowledge was not liable as long as she used her best judgment and reasonable care in exercise of whatever skill or knowledge she did possess, however limited. Rooney v. Medical Center Hospital of Vermont, Inc., 162 Vt. 513, 649 A.2d 756, 1994 Vt. LEXIS 107 (1994).

Trial court’s error in suggesting subjective standard of care in medical malpractice case was compounded by reiteration of best judgment language in rest of instruction, which referred to level of knowledge, skill and care previously described. Rooney v. Medical Center Hospital of Vermont, Inc., 162 Vt. 513, 649 A.2d 756, 1994 Vt. LEXIS 107 (1994).

Trial court’s standard of care instruction did not meet court’s often stated standard of review by breathing true spirit and doctrine of law. Rooney v. Medical Center Hospital of Vermont, Inc., 162 Vt. 513, 649 A.2d 756, 1994 Vt. LEXIS 107 (1994).

Standards.

Where the issue in a medical malpractice case was whether plaintiffs established a genuine issue of material fact such that the case could not be resolved on summary judgment, the usual V.R.C.P. 56 standard applied. Provost v. Fletcher Allen Health Care, Inc., 2005 VT 115, 179 Vt. 545, 890 A.2d 97, 2005 Vt. LEXIS 259 (2005) (mem.).

Where an expert’s affidavit stated that “among other things, [defendant] failed to exercise the appropriate degree of care during that injection by inserting the needle to the point it made contact with the bone of the arm and injured the radial nerve,” it could reasonably be inferred that, in plaintiffs’ view, the requisite standard of care was to not insert the needle so deeply that it contacts the bone and injures the radial nerve. Although the better practice is for the affiant to expressly articulate the standard of care, the affidavit satisfied plaintiffs’ burden under 12 V.S.A. § 1908(1) . Provost v. Fletcher Allen Health Care, Inc., 2005 VT 115, 179 Vt. 545, 890 A.2d 97, 2005 Vt. LEXIS 259 (2005) (mem.).

The loss-of-chance theory of recovery is fundamentally at odds with the settled common-law and statutory standard for establishing a causal link between plaintiff’s injury and defendant’s tortious conduct. Smith v. Parrott, 2003 VT 64, 175 Vt. 375, 833 A.2d 843, 2003 Vt. LEXIS 154 (2003).

A physician is not required to be infallible; a bad medical result does not automatically require the court to find a breach of the standard of care. Short v. United States, 908 F. Supp. 227, 1995 U.S. Dist. LEXIS 18062 (D. Vt. 1995).

This section imposes an objective standard, and measures the defendant doctor’s conduct against what a reasonable doctor would have done in the same or similar circumstances. Short v. United States, 908 F. Supp. 227, 1995 U.S. Dist. LEXIS 18062 (D. Vt. 1995).

12 V.S.A. § 1908(1) imposes objective standard of care and measures defendant doctor’s conduct against what reasonable doctor would have done in same or similar circumstances. Rooney v. Medical Center Hospital of Vermont, Inc., 162 Vt. 513, 649 A.2d 756, 1994 Vt. LEXIS 107 (1994).

Doctor’s alleged statements as to inadequacy of surgery were insufficient to establish applicable standard of care or to show breach of that standard, or causation, and trial court in malpractice action properly granted summary judgment for doctor. Phinney v. Vinson, 158 Vt. 646, 605 A.2d 849, 1992 Vt. LEXIS 20 (1992) (mem.).

“Gross” error in judgment is not required for recovery in medical malpractice action. Domina v. Pratt, 111 Vt. 166, 13 A.2d 198, 1940 Vt. LEXIS 139 (1940).

Cited.

Cited in Senesac v. Associates in Obstetrics and Gynecology, 141 Vt. 310, 449 A.2d 900, 1982 Vt. LEXIS 530 (1982); Perkins v. Windsor Hospital Corp., 142 Vt. 305, 455 A.2d 810, 1982 Vt. LEXIS 645 (1982); Connors v. University Associates in Obstetrics & Gynecology, Inc., 769 F. Supp. 578, 1991 U.S. Dist. LEXIS 9702 (D. Vt. 1991), Brooks v. Brattleboro Memorial Hospital, 958 F.2d 525, 1992 U.S. App. LEXIS 4524 (2d Cir. 1992); Christman v. Davis, 2005 VT 119, 179 Vt. 99, 889 A.2d 746, 2005 Vt. LEXIS 299 (2005).

§ 1909. Limitation of medical malpractice action based on lack of informed consent.

  1. For the purpose of this section, “lack of informed consent” means:
    1. the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation; or
    2. the failure to disclose the information required by subsection (d) of this section.
  2. The right of action to recover for medical malpractice based on a lack of informed consent shall not apply in the case of an emergency.
  3. It shall be a defense to any action for medical malpractice based upon an alleged failure to obtain such an informed consent that:
    1. the risk not disclosed is too commonly known to require disclosure and that the risk is not substantial;
    2. the patient assured the medical practitioner he or she would undergo the treatment, procedure or diagnosis regardless of the risk involved, or the patient indicated to the medical practitioner that he or she did not want to be informed of the matters to which he or she would be entitled to be informed;
    3. consent by or on behalf of the patient was not reasonably possible; or
    4. a reasonably prudent person in the patient’s position would have undergone the treatment or diagnosis if he or she had been fully informed.
  4. A patient shall be entitled to a reasonable answer to any specific question about foreseeable risks and benefits, and a medical practitioner shall not withhold any requested information.
  5. A motion for judgment for the defendant at the end of plaintiff’s case must be granted as to any cause of action for medical malpractice based solely on lack of informed consent if the plaintiff has failed to adduce expert medical testimony in support of the allegation that he or she was not provided sufficient information as required by subdivision (a)(1) of this section.

HISTORY: Added 1975, No. 250 (Adj. Sess.), § 3, eff. April 7, 1976; 2009, No. 25 , § 5.

History

Revision note

—1976. This section was enacted as “§ 1910” but was renumbered as “§ 1909” to conform to V.S.A. style.

Amendments

—2009. Subsec. (d): Deleted “except to the extent that a reasonable medical practitioner would withhold the information because the manner and extent of such disclosure could reasonably be expected to adversely and substantially affect the patient’s condition, in which case the medical practitioner shall provide the information to a member of the immediate family, if reasonably available, notwithstanding the provisions of 12 V.S.A. § 1612(a) ” after “information.”

ANNOTATIONS

Battery claim.

Generally, battery occurs only when a physician performs an operation for which there was no consent. If the patient does provide consent for the procedure employed, but receives inadequate disclosures of the alternatives and foreseeable risks and benefits of the alternatives, liability must be based on lack of informed consent and a claim of medical malpractice in failing to provide the necessary disclosures. Christman v. Davis, 2005 VT 119, 179 Vt. 99, 889 A.2d 746, 2005 Vt. LEXIS 299 (2005).

This section did not preempt a plaintiff’s battery claim. Christman v. Davis, 2005 VT 119, 179 Vt. 99, 889 A.2d 746, 2005 Vt. LEXIS 299 (2005).

Construction.

A prerequisite to liability under this section is a finding that a reasonable patient would not have given consent to the medical procedure had he fully known of the risks; however, it does not impose on a physician a general duty to inform a patient of each and every possible risk or treatment. Short v. United States, 908 F. Supp. 227, 1995 U.S. Dist. LEXIS 18062 (D. Vt. 1995).

Defenses.

Since a reasonable patient presented with physician’s preliminary diagnosis of benign prostatic hyperplasia would have chosen watchful waiting and since at the time practitioners varied in their practice of using and informing patients of the availability of prostate specific antigen tests, physician was not liable under the Vermont informed consent statute. Short v. United States, 908 F. Supp. 227, 1995 U.S. Dist. LEXIS 18062 (D. Vt. 1995).

Plaintiffs’ failure to show that a reasonable patient would not have consented to the vasectomy if fully informed of risks precluded recovery under this section. Begin v. Richmond, 150 Vt. 517, 555 A.2d 363, 1988 Vt. LEXIS 201 (1988).

Expert testimony.

Medical malpractice plaintiff was required to produce expert testimony to meet his burden of production on issue of lack of informed consent. Mello v. Cohen, 168 Vt. 639, 724 A.2d 471, 1998 Vt. LEXIS 480 (1998) (mem.).

Instructions.

In medical malpractice action, the trial court erred in refusing to fully charge this section where the basis of the action was the claim that the plaintiff had not knowingly and intelligently consented to treatment with a particular drug because plaintiff had not been made aware of the reasonably foreseeable risks, in particular a potential adverse reaction when combined with alcohol, where the defendant testified that, although he did not recall actually warning plaintiff of this risk, it nevertheless was his “custom” to give such an oral warning, and where an expert testified that, even if the physician had given his customary warning, it would not have provided plaintiff with sufficient information concerning the dangers to permit plaintiff to make a knowledgeable evaluation to undergo the treatment. Perkins v. Windsor Hospital Corp., 142 Vt. 305, 455 A.2d 810, 1982 Vt. LEXIS 645 (1982).

Purpose.

Doctrine of informed consent made extent of what patient needed to know and ought to be told in order to intelligently consent to proposed treatment a matter resolvable by jury without expert medical testimony, and was intended to add to theories of liability and eliminate proof barriers, not to restrict liability. Begin v. Richmond, 150 Vt. 517, 555 A.2d 363, 1988 Vt. LEXIS 201 (1988).

Cited.

Cited in Fercenia v. Guiduli, 2003 VT 50, 175 Vt. 541, 830 A.2d 55, 2003 Vt. LEXIS 95 (2003) (mem.).

§§ 1910, 1911. [Reserved for future use.]

§ 1912. Expression of regret or apology by health care provider inadmissible.

  1. An oral expression of regret or apology, including any oral good faith explanation of how a medical error occurred, made by or on behalf of a health care provider or health care facility, that is provided within 30 days of when the provider or facility knew or should have known of the consequences of the error, does not constitute a legal admission of liability for any purpose and shall be inadmissible in any civil or administrative proceeding against the health care provider or health care facility, including any arbitration or mediation proceeding.
  2. In any civil or administrative proceeding against a health care provider or health care facility, including any arbitration or mediation proceeding, the health care provider, health care facility, or any other person who makes an oral expression of regret or apology, including any oral good faith explanation of how a medical error occurred, on behalf of the provider or facility, that is provided within 30 days of when the provider or facility knew or should have known of the consequences of the potential adverse outcome, may not be examined by deposition or otherwise with respect to the expression of regret, apology, or explanation.
  3. As used in this section:
    1. “Health care facility” shall have the same meaning as in 18 V.S.A. § 9402(6) .
    2. “Health care provider” shall have the same meaning as in 18 V.S.A. § 9402(7) .
  4. The liability protections afforded by subsections (a) and (b) of this section shall not be construed to limit access to information that is otherwise discoverable.
  5. This section shall apply only to medical errors that occur on or after July 1, 2006.

HISTORY: Added 2005, No. 142 (Adj. Sess.), § 1.

History

Sorry Works! Pilot Program. 2005, No. 142 (Adj. Sess.), § 2 provides: “(a) For purposes of this section:

“(1) ‘Commissioner’ means the commissioner of banking, insurance, securities, and health care administration.

“(2) ‘Department’ means the department of banking, insurance, securities, and health care administration.

“(b) The Sorry Works! pilot program is established under the oversight of the commissioner. Any hospital that voluntarily chooses to participate shall be eligible for the program beginning on January 1, 2007. Hospitals may participate only with the approval of the hospital administration and the hospital’s medical staff.

“(c)(1) Under the program, participating hospitals and physicians shall promptly acknowledge and apologize for mistakes in patient care that result in harm and promptly offer fair settlements. If a settlement is accepted, further litigation with respect to the mistake shall be prohibited.

“(2) Participating hospitals shall provide to the patient written notification of the patient’s right to legal counsel. The notification shall include an affirmative declaration that no action was taken to dissuade a patient from using counsel for the negotiations.

“(3) A communication between parties engaged in negotiation pursuant to this program is privileged and is not subject to discovery or admissible in evidence in any civil or administrative proceeding. Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in negotiations pursuant to this program.

“(4) Participation in Sorry Works! shall toll the applicable statute of limitations in cases where such negotiations are unsuccessful. The commissioner shall establish guidelines for determining when negotiations under the Sorry Works! program begin and end for purposes of tolling the statute of limitations.

“(d) Participating hospitals shall report to the department their total costs for medical malpractice verdicts, settlements, and defense litigation for the preceding five years to enable the department to determine average costs for that hospital during that period. The department shall develop standards and protocols to compare costs for cases handled by traditional means and cases handled under the Sorry Works! program for purposes of reporting to the General Assembly as to the financial impact of the program.

“(e) The commissioner shall establish criteria for the program, including the criteria under which hospitals shall be selected to participate. A program participant may withdraw from the program by notifying the commissioner. Any mistakes in patient care that result in harm that occurred prior to the program participant notifying the commissioner shall continue to be subject to this section and the terms of the program.

“(f) In consultation with hospitals, providers, and other interested parties, the department shall adopt rules to implement the pilot program no later than October 1, 2006.

“(g) The department shall initiate a dialogue with insurers and encourage them to participate in the Sorry Works! pilot program with any hospital that is willing to commit to the program. The department shall use all of the methods at its disposal to gain the participation of insurers necessary to enable hospitals to participate and the program to be implemented.

“(h) The department shall report to the General Assembly on or before January 15, 2009 on the implementation and administration of the program, including the value of extending the program and any recommendations to facilitate participation.

“(i) This pilot program shall sunset on June 30, 2009.”

§ 1913. Blockchain enabling.

  1. As used in this section:
    1. “Blockchain” means a cryptographically secured, chronological, and decentralized consensus ledger or consensus database maintained via Internet, peer-to-peer network, or other interaction.
    2. “Blockchain technology” means computer software or hardware or collections of computer software or hardware, or both, that utilize or enable a blockchain.
  2. Authentication, admissibility, and presumptions.
    1. A digital record electronically registered in a blockchain shall be self-authenticating pursuant to Vermont Rule of Evidence 902, if it is accompanied by a written declaration of a qualified person, made under oath, stating the qualification of the person to make the certification and:
      1. the date and time the record entered the blockchain;
      2. the date and time the record was received from the blockchain;
      3. that the record was maintained in the blockchain as a regular conducted activity; and
      4. that the record was made by the regularly conducted activity as a regular practice.
    2. A digital record electronically registered in a blockchain, if accompanied by a declaration that meets the requirements of subdivision (1) of this subsection, shall be considered a record of regularly conducted business activity pursuant to Vermont Rule of Evidence 803(6) unless the source of information or the method or circumstance of preparation indicate lack of trustworthiness. For purposes of this subdivision (2), a record includes information or data.
    3. The following presumptions apply:
      1. A fact or record verified through a valid application of blockchain technology is authentic.
      2. The date and time of the recordation of the fact or record established through such a blockchain is the date and time that the fact or record was added to the blockchain.
      3. The person established through such a blockchain as the person who made such recordation is the person who made the recordation.
      4. If the parties before a court or other tribunal have agreed to a particular format or means of verification of a blockchain record, a certified presentation of a blockchain record consistent with this section to the court or other tribunal in the particular format or means agreed to by the parties demonstrates the contents of the record.
    4. A presumption does not extend to the truthfulness, validity, or legal status of the contents of the fact or record.
    5. A person against whom the fact operates has the burden of producing evidence sufficient to support a finding that the presumed fact, record, time, or identity is not authentic as set forth on the date added to the blockchain, but the presumption does not shift to a person the burden of persuading the trier of fact that the underlying fact or record is itself accurate in what it purports to represent.
  3. Without limitation, the presumption established in this section shall apply to a fact or record maintained by blockchain technology to determine:
    1. contractual parties, provisions, execution, effective dates, and status;
    2. the ownership, assignment, negotiation, and transfer of money, property, contracts, instruments, and other legal rights and duties;
    3. identity, participation, and status in the formation, management, record keeping, and governance of any person;
    4. identity, participation, and status for interactions in private transactions and with a government or governmental subdivision, agency, or instrumentality;
    5. the authenticity or integrity of a record, whether publicly or privately relevant; and
    6. the authenticity or integrity of records of communication.
  4. The provisions of this section shall not create or negate:
    1. an obligation or duty for any person to adopt or otherwise implement blockchain technology for any purpose authorized in this section; or
    2. the legality or authorization for any particular underlying activity whose practices or data are verified through the application of blockchain technology.

HISTORY: Added 2015, No. 157 (Adj. Sess.), § I.1; amended 2017, No. 205 (Adj. Sess.), § 1.

History

Amendments

—2017 (Adj. Sess.). Subsec. (a): Amended generally.

Subchapter 2. Jury Trials

§ 1941. Jury challenges; peremptory and for cause.

Upon the trial of a cause in any court, each party, including the State, may peremptorily challenge six jurors and any further number for cause.

History

Source.

V.S. 1947, § 1726. P.L. § 1684. 1933, No. 157 , § 1524. 1927, No. 43 . G.L. §§ 1652, 1686, 1880, 2552, 2553, 2569. 1917, No. 254 , §§ 1613, 2532. 1915, No. 91 , §§ 6, 12. P.S. §§ 1580, 1642, 2274, 2275. 1904, No. 59 , § 1. 1896, No. 33 , § 1. V.S. §§ 1228, 1291, 1913, 1914. R.L. §§ 993, 1054, 1653, 1654. 1872, No. 28 . 1870, No. 5 , § 10. 1869, No. 39 . G.S. 31, § 44. G.S. 120, §§ 4, 5. R.S. 26, § 34. R.S. 102, §§ 4, 5. 1818, p. 20. R. 1797, p. 174, §§ 37, 38, p. 420, § 15. R. 1787, p. 83.

CROSS REFERENCES

Disqualifications of jurors, see ch. 3 of this title.

Right to trial by jury, see Constitution, ch. I, arts. 10.

ANNOTATIONS

Constitutionality.

Statute permitting peremptory challenge of jurors by State in criminal cases is constitutional. State v. Ward, 61 Vt. 153, 17 A. 483 (1888), same case (1887) 60 Vt. 142, 14 A. 187.

Bias as ground for disqualification.

If the examination of a juror clearly exposes a state of mind evincing a fixed opinion, bias, or prejudice, such juror is properly subject to challenge for cause. Lattrell v. Swain & Swain, 127 Vt. 33, 239 A.2d 195, 1968 Vt. LEXIS 170 (1968).

An expressed opinion, founded on reports in newspapers of evidence given at a preliminary examination of respondent, did not disqualify juror, when his opinion was dependent upon the correctness of the reports; to disqualify there must be an abiding bias in the mind, based upon the substantial facts in the case, in the existence of which the juror believes. State v. Meyer, 58 Vt. 457, 3 A. 195, 1886 Vt. LEXIS 51 (1886), 52 Harv. L. Rev. 593.

Fact that challenged juror admitted he had formed opinion but was not aware of any prejudice against respondent and had no recollection of having expressed an opinion in the premises was not legal cause for challenge. State v. Tatro, 50 Vt. 483, 1878 Vt. LEXIS 15 (1878).

That a juror had formed but not expressed an opinion as to guilt or innocence of respondent, did not disqualify him in criminal case. State v. Phair, 48 Vt. 366, 1875 Vt. LEXIS 99 (1875).

Where a juror said, upon inquiry by counsel, as he was called, that he had expressed an opinion as to the guilt of the respondent, on reading a newspaper account of the examination before the magistrate, a few weeks before, but that he had no opinion, and had formed none, and could try case impartially on evidence, he was disqualified. State v. Clark, 42 Vt. 629, 1870 Vt. LEXIS 19 (1870).

Challenge as constitutional right.

A liberal, though not unlimited, opportunity to examine jurors drawn, to test and consider their respective qualifications, and to assert and exercise right of challenge, is essential to full enjoyment of constitutional right to jury trial. State v. Mercier, 98 Vt. 368, 127 A. 715, 1925 Vt. LEXIS 140 (1925).

Challenge for cause.

Plaintiff against whom verdict was rendered had burden of showing that he had been prejudiced by trial court’s overruling of challenges to respective jurors. Lattrell v. Swain & Swain, 127 Vt. 33, 239 A.2d 195, 1968 Vt. LEXIS 170 (1968).

Respondent was not obliged to exhaust his peremptory challenges before challenging for cause. State v. Fuller, 39 Vt. 74, 1866 Vt. LEXIS 65 (1866).

Challenges by several respondents.

Under prior law which allowed State same number of peremptory challenges as were allowed respondents, where there were several respondents, State was allowed as many as respondents together. State v. Noakes, 70 Vt. 247, 40 A. 249, 1897 Vt. LEXIS 39 (1897); State v. Marsh, 70 Vt. 288, 40 A. 836, 1898 Vt. LEXIS 42 (1898).

Every respondent, whether indicted and tried alone or with others, was entitled to statutory number of peremptory challenges; and, if indicted with others, he did not waive that right by consenting to be tried with them. State v. Stoughton, 51 Vt. 362, 1879 Vt. LEXIS 91 (1879); State v. Fournier, 68 Vt. 262, 35 A. 178, 1896 Vt. LEXIS 81 (1896).

Conscientious scruples against capital punishment.

Declaration of a juror that he had conscientious scruples against rendering a verdict of guilty where punishment was death, sincerely made, was sufficient to excuse him from serving as juror in such case. State v. Ward, 39 Vt. 225, 1867 Vt. LEXIS 7 (1867); State v. Shaw, 73 Vt. 149, 50 A. 863, 1901 Vt. LEXIS 146 (1901).

Where in murder trial one of jurors declared he had conscientious scruples against rendering verdict of guilty where punishment was death, and stated he believed law inflicting punishment of death was wrong, but if compelled to sit as juror, if he was fully satisfied respondent was guilty, he would render verdict of guilty, but felt he was not proper person to sit as juryman in such case, and that it would require more evidence to induce him to render a verdict of guilty in a case where punishment was death than where it was imprisonment, question whether he should be excused or not was one of fact for decision of the county court, and not revisable in Supreme Court. State v. Ward, 39 Vt. 225, 1867 Vt. LEXIS 7 (1867).

Jury competence.

Jury competence is an individual rather than a group or class matter. Lattrell v. Swain & Swain, 127 Vt. 33, 239 A.2d 195, 1968 Vt. LEXIS 170 (1968).

The competency of a juror will be presumed until the contrary is shown, and the burden is upon the challenging party to establish the disqualification of the juror. Lattrell v. Swain & Swain, 127 Vt. 33, 239 A.2d 195, 1968 Vt. LEXIS 170 (1968).

Order of challenges.

Order in which peremptory challenges shall be exercised rests in discretion of trial court. State v. Flint, 60 Vt. 304, 14 A. 178, 1888 Vt. LEXIS 146 (1888).

Passing or waiving.

Where there were multiple defendants and court directed plaintiffs to exercise their first peremptory challenge, each of the defendants to then one by one successively exercise a challenge, and each party had the right to six peremptory challenges, and at one point plaintiffs, with four challenges left when their turn came, stated “plaintiff passes without waiving,” and each defendant then expressed content with the jury as it then stood, trial court properly ruled that a jury had been impanelled, and plaintiffs could not successfully complain that they were left deprived of the remainder of their challenges, for plaintiffs accepted the panel and none of the defendants changed the panel thereafter by exercising a challenge. Masterson v. State, 139 Vt. 106, 423 A.2d 845, 1980 Vt. LEXIS 1494 (1980).

Refusal of challenge for cause.

Plaintiff in negligence action would not be heard to complain of error in the overruling of his challenges for cause since it did not force him to exhaust his peremptory challenges. Lattrell v. Swain & Swain, 127 Vt. 33, 239 A.2d 195, 1968 Vt. LEXIS 170 (1968).

Where plaintiff did exercise his right of peremptory challenge to remove three jurors whom he challenged for cause but he did not exhaust his peremptory challenges, plaintiff waived alleged error committed by trial court in previously ruling adversely on the challenge of such jurors for cause. Lattrell v. Swain & Swain, 127 Vt. 33, 239 A.2d 195, 1968 Vt. LEXIS 170 (1968).

Respondent in a criminal trial had no ground of complaint, when he challenged a juror for cause and was refused, and then challenged peremptorily, if he had challenges left when panel was filled. State v. Gaffney, 56 Vt. 451, 1884 Vt. LEXIS 68 (1884).

Time of making challenge.

Section did not require that right of challenge must be exercised at very time a juror’s name is drawn. State v. Mercier, 98 Vt. 368, 127 A. 715, 1925 Vt. LEXIS 140 (1925).

Respondent’s right to challenge peremptorily continues until the juror is sworn—even if he had accepted juror. State v. Spaulding, 60 Vt. 228, 14 A. 769, 1887 Vt. LEXIS 89 (1887).

Cited.

Cited in State v. Schaefer, 157 Vt. 339, 599 A.2d 337, 1991 Vt. LEXIS 193 (1991).

§ 1942. Repealed. 1973, No. 118, § 25, eff. Oct. 1, 1973.

History

Former § 1942. Former § 1942, relating to alternate jurors in criminal cases, was derived from V.S. 1947, § 1596; 1947, No. 36 , § 1; 1935, No. 46 , § 1 and amended by 1971, No. 185 (Adj. Sess.) § 51.

§ 1943. Confinement and care of jury.

When the court has committed a cause to its consideration, the jury shall be confined until it agrees on a verdict or is discharged. While so confined, the jury shall be under the care of an officer appointed by the court and sworn for that purpose.

History

Source.

V.S. 1947, § 1727. P.L. § 1685. G.L. § 1881. P.S. § 1581. V.S. § 1229. R.L. § 994. G.S. 30, § 34. R.S. 25, § 18. R. 1797, p. 107, § 66. R. 1787, p. 83.

ANNOTATIONS

Care of jury.

When the court has committed a cause to its consideration, the jury shall be confined until it agrees on a verdict or is discharged; while so confined, the jury shall be under the care of an officer appointed by the court and sworn for that purpose. State v. Allocco, 162 Vt. 59, 644 A.2d 835, 1994 Vt. LEXIS 49 (1994).

Construction.

This section is merely directory. Downer v. Baxter, 30 Vt. 467, 1857 Vt. LEXIS 93 (1857).

Length of deliberation.

The law does not attempt to prescribe the length of time which a jury should take to arrive at a verdict. State v. Lumbra, 122 Vt. 467, 177 A.2d 356, 1962 Vt. LEXIS 121 (1962).

The trial court should cause the jury to reconsider its verdict if it considers that their decision is so hasty as to indicate, in the circumstances, either a flippant disregard or a perfunctory performance of their duties. State v. Lumbra, 122 Vt. 467, 177 A.2d 356, 1962 Vt. LEXIS 121 (1962).

Misconduct.

The party seeking corrective action because of alleged misconduct by the jurors, or those who attend them, has the burden of establishing the essential facts by adequate oral testimony or written affidavits. State v. Bogie, 125 Vt. 414, 217 A.2d 51, 1966 Vt. LEXIS 203 (1966).

Separation of jury.

In a prosecution for a misdemeanor mere separation of one of the jurors from his fellow jurymen does not require a mistrial as a matter of law. State v. Bogie, 125 Vt. 414, 217 A.2d 51, 1966 Vt. LEXIS 203 (1966).

The rules governing the separation of juries are based upon a difference of degree. State v. Brisson, 124 Vt. 211, 201 A.2d 881, 1964 Vt. LEXIS 85 (1964).

In misdemeanor cases, just as civil cases, the trial court’s discretion in the propriety of separation of juries, is operative. State v. Brisson, 124 Vt. 211, 201 A.2d 881, 1964 Vt. LEXIS 85 (1964).

Where the discretionary power of trial courts to allow juries to separate is questioned, each case involving this issue will be decided on its own facts. State v. Brisson, 124 Vt. 211, 201 A.2d 881, 1964 Vt. LEXIS 85 (1964).

In exercising its discretion as to the propriety of separation of the jury, it is for the trial court to weigh concern for the prompt, orderly administration of criminal law against the possibility of jury prejudice in a given case. State v. Brisson, 124 Vt. 211, 201 A.2d 881, 1964 Vt. LEXIS 85 (1964).

A ten-day separation of the jury between impanelling and the presentation of evidence is not an abuse of discretion and prejudicial to the respondent as a matter of law. State v. Brisson, 124 Vt. 211, 201 A.2d 881, 1964 Vt. LEXIS 85 (1964).

Where respondent had insisted that the jury be allowed to separate while court was not in session, he could not thereafter object as a matter of law, without proof of actual prejudice, that the jurors had disobeyed the court’s direction that while separated they avoid all matters that might touch upon their ability to render a verdict impartially. State v. Woodmansee, 124 Vt. 387, 205 A.2d 407, 1964 Vt. LEXIS 119 (1964).

Complete dispersion of jury in case of felony, defendant not having consented thereto, was ground for setting aside verdict. State v. Anderson, 119 Vt. 355, 125 A.2d 827, 1956 Vt. LEXIS 117 (1956).

Fact that a jury separated without leave of court after case had been committed to them, and afterwards came together and agreed, afforded no reason per se and as mere matter of law for a new trial. Downer v. Baxter, 30 Vt. 467, 1857 Vt. LEXIS 93 (1857).

Jurors may not separate after being sworn in a capital case. State v. Godfrey, Brayt. 170 (1817).

Witness as officer in charge.

Fact that officer having charge of jury in case in which he was witness was present during their deliberations after it had been submitted to them, was not sufficient cause for setting aside verdict, although it was an impropriety, and another officer ought to have been selected. State v. Flint, 60 Vt. 304, 14 A. 178, 1888 Vt. LEXIS 146 (1888).

It was not legal error to put sheriff who was also material witness in charge of jury where no injury was shown in consequence. State v. Lockwood, 58 Vt. 378, 3 A. 539, 1886 Vt. LEXIS 73 (1886).

§ 1944. Appointment of jury foreman.

In the trial of a cause in the Superior Court by jury, the court shall appoint one of the jurors foreman at the time such cause is submitted.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1728. P.L. § 1686. G.L. § 1882. 1910, No. 83 .

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

§ 1945. Return of jury for further consideration.

If the judges of the Superior Court before whom a cause is tried consider that the jury has mistaken the law or evidence material to the issue or has not paid proper attention thereto, they may cause it to return to a second and third consideration of the cause. If the jury does not alter or retract its verdict, the same shall be received.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1729. P.L. § 1687. G.L. § 1883. P.S. § 1582. V.S. § 1230. R.L. § 995. G.S. 30, § 33. R.S. 25, § 17. R. 1797, p. 107, § 66. R. 1787, p. 83.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

ANNOTATIONS

Instructions upon resubmission.

Recharging a jury on the matter of damages, calling its attention to this section, raised questions analogous to those arising upon motion to set aside a verdict for inadequacy of damages. Goldberg v. Gintoff, 112 Vt. 43, 20 A.2d 114, 1941 Vt. LEXIS 131 (1941).

No error appeared in court’s resubmission of verdict pursuant to this section when section was read to jury and court specifically directed that matter was wholly in jury’s control and court added that a duplicate form for verdict would be available if needed. Goldberg v. Gintoff, 112 Vt. 43, 20 A.2d 114, 1941 Vt. LEXIS 131 (1941).

Propriety of action.

When trial court requires jury to reconsider its verdict under this section, because of amount of award, propriety of action taken presents substantially same question that arises when verdict is set aside for insufficiency of damages, and discretionary ruling of trial court will not be disturbed, nor first assessment be reinstated, unless evidence is so strongly in its favor as to leave no room for contrary verdict. Bessette v. Humiston, 121 Vt. 325, 157 A.2d 468, 1960 Vt. LEXIS 123 (1960).

Time for raising issue.

Where, following return of verdict later questioned on appeal as being insufficient in that it either ignored damages figures on each side, or awarded no damages at all, court inquired of counsel whether there were any matters to be taken up before discharge of jury, and neither counsel suggested anything, that was the appropriate time to settle any concern as to the manner in which the verdict was reached. Thorburn v. State Highway Board, 130 Vt. 11, 285 A.2d 755, 1972 Vt. LEXIS 329 (1972).

§ 1946. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 1946. Former § 1946 related to special verdict and was derived from V.S. 1947, § 1730; P.L. § 1688; G.L. § 1884; P.S. § 1583; V.S. § 1231; R.L. § 996; G.S. 30, § 35; R.S. 25, § 19; R. 1797, p. 107, § 67; R. 1787, p. 28. This section is now covered by V.R.C.P. 49(a).

§ 1947. Treating jurors; new trial.

A verdict shall be set aside and a new trial granted on proof that a party in whose favor such verdict is rendered and during the same term of court, gives to a juror, knowing him or her to be a juror in the cause, victuals or drink or procures it to be done by way of treat either before or after such verdict.

History

Source.

V.S. 1947, § 1731. P.L. § 1689. G.L. § 1885. P.S. § 1584. V.S. § 1232. R.L. § 997. G.S. 37, § 16. R.S. 32, § 16. R. 1797, p. 108, § 71. 1791, p. 12.

ANNOTATIONS

Application to criminal cases.

Although section had no application in criminal cases, respondent should have been granted a new trial where there was sufficient reason to believe that a verdict had been returned against him in consequence of corruption practiced upon jurymen by an officer or by someone else. State v. Costa, 78 Vt. 198, 62 A. 38, 1905 Vt. LEXIS 100 (1905).

New trial.

Fact that jurors, during trial, were allowed to have liquor with their meals that was paid for by officers in charge of jury, coupled with contradictory and confusing instructions given to jurors at opening of term of court as to function of jurors as law enforcement officers, constituted circumstances capable of influencing jurors favorable to State, and required new trial. State v. Ovitt, 126 Vt. 320, 229 A.2d 237, 1967 Vt. LEXIS 192 (1967).

Where party during trial gave drinks of intoxicating liquor to jurors by way of treat, verdict should be set aside and a new trial granted, not only under express provisions of section, but for reasons of public policy independent of the statute. Parkhurst v. Healy, 95 Vt. 357, 115 A. 491 (1921), same case 96 Vt. 180, 118 A. 585, 97 Vt. 295, 122 A. 895.

Tobacco.

Treating jurors with cigars has been held an act within intendment of this section. Austin & McCargar v. Langlois, 81 Vt. 223, 69 A. 739 (1908), same case 83 Vt. 104, 74 A. 489.; Shattuck v. Wrought Iron Range Co., 69 Vt. 468, 38 A. 72, 1897 Vt. LEXIS 85 (1897); Baker v. Jacobs, 64 Vt. 197, 23 A. 588, 1891 Vt. LEXIS 82 (1891).

Treating where town a party.

Where town was party to suit, mere furnishing of food and drink by inhabitants of town, confined within limits of ordinary hospitality, without improper design, and where it had no improper influence on verdict, was not fairly within mischief which statute was designed to guard against. Carlisle v. Sheldon, 38 Vt. 440, 1866 Vt. LEXIS 10 (1866).

Inhabitant of town was not such a “party” as the statute contemplated; treating must be at expense of town, or act of its authorized agents. Carlisle v. Sheldon, 38 Vt. 440, 1866 Vt. LEXIS 10 (1866).

§ 1948. View of premises by jury.

When on the trial of a cause in the Superior Court for damages to real estate, or in an action in which the title to land is concerned, it is necessary that a view be had of the premises, on motion of either party, the court may grant such view at the expense of the party making the motion.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1732. P.L. § 1690. G.L. § 1887. P.S. § 1586. V.S. § 1234. R.L. § 999. 1869, No. 35 .

Amendments—

Substituted “superior” for “county” preceding “court”.

§ 1949. Repealed. 2009, No. 154 (Adj. Sess.), § 238.

History

Former § 1949. Former § 1949, relating to the district court jury, was derived from V.S. 1947, § 1734; P.L. § 1692; G.L. § 1889; 1917, No. 254 , § 1852 and amended by 1965, No. 194 , § 10.

Subchapter 3. Trial of Civil Causes Before Justices

§§ 1981-1989. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 1981-1989. Former § 1981, relating to time set for trial, was derived from V.S. 1947, § 1493; P.L. § 1459; G.L. § 1679; P.S. § 1635; V.S. § 1284; R.L. § 1047; G.S. 31, § 30; R.S. 26, § 40; 1803, p. 54.

Former § 1982, relating to requirement that justice must be present within two hours, was derived from V.S. 1947, § 1494; P.L. § 1460; G.L. § 1680; P.S. § 1636; V.S. § 1285; R.L. § 1048; G.S. 31, § 37; R.S. 26, § 41; 1803, p. 54.

Former § 1983, relating to the time limit for appearance and nonsuit or default, was derived from V.S. 1947, § 1495; P.L. § 1461; G.L. § 1681; P.S. § 1637; V.S. § 1286; R.L. § 1049; G.S. 31, § 38; R.S. 26, § 42; 1803, p. 54.

Former § 1984, relating to striking off nonsuit or default, was derived from V.S. 1947, § 1496; P.L. § 1462; G.L. § 1682; P.S. § 1638; V.S. § 1287; R.L. § 1050; G.S. 31, § 39; 1847, No. 45 , § 2; R.S. 26, § 43; 1803, p. 54; R. 1797, p. 416, § 6.

Former § 1985, relating to costs on failure to return writ and judgment for defendant, was derived from V.S. 1947, § 1497; P.L. § 1463; G.L. § 1683; P.S. § 1639; V.S. § 1288; R.L. § 1051; G.S. 31, § 40; 1855, No. 10 , § 1.

Former § 1986, relating to continuance in absence of justice, was derived from V.S. 1947, § 1498; P.L. § 1464; G.L. § 1684; P.S. § 1640; V.S. § 1289; R.L. § 1052; G.S. 31, § 42; 1850, No. 10 ; R.S. 26, § 19; 1832, No. 1 .

Former § 1987, relating to trial by jury and number of jurors, was derived from V.S. 1947, § 1499; P.L. § 1465; G.L. § 1685; P.S. § 1641; V.S. § 1290; R.L. § 1053; G.S. 31, § 43; R.S. 26, § 33; R. 1797, p. 420, § 14.

Former § 1988, relating to verdict for balance due, was derived from V.S. 1947, § 1503, P.L § 1469; G.L. § 1689; P.S. § 1645; V.S. § 1294; R.L. § 1057; G.S. 31, § 47; R.S. 26, § 37. R. 1797, p. 421, § 16; 1792, p. 62.

Former § 1989, relating to the return of jury for further consideration, was derived from V.S. 1947, § 1504; P.L. § 1470; G.L. § 1690; P.S. § 1646; V.S. § 1295; R.L. § 1058; G.S. 31, § 48; R.S. 26, § 38; R. 1797, p. 422, § 17; R. 1787, p. 83.

Chapter 83. Reference of Causes

Subchapter 1. Reference by Supreme or County Court

§§ 2041-2044. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 2041-2044. Former §§ 2041-2044 related to reference of causes. These sections are now covered by V.R.C.P. 53.

Subchapter 2. Reference by Justices and Municipal Judges

§§ 2061-2063. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 2061-2063. Former §§ 2061-2063 related to reference of causes. For derivation of such sections reference should be made to former Volume 3 V.S.A. These sections are now covered by V.R.C.P. 53.

Subchapter 3. General Provisions as to Auditors, Referees, and Commissioners

§§ 2081-2084. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 2081-2084. Former §§ 2081-2084 related to reference of causes. These sections are now covered by V.R.C.P. 53.

Chapter 85. Costs

§ 2131. Costs in Supreme Court.

In all causes of a civil nature disposed of in the Supreme Court, the prevailing party shall be entitled to costs, unless in its discretion, the Court shall apportion costs as equity may require.

History

Source.

V.S. 1947, § 2189. P.L. § 2137. 1933, No. 155 , § 1.

CROSS REFERENCES

Taxation of costs, see ch. 17 of Title 32.

ANNOTATIONS

Taxation against prevailing party.

Where defendant could not be enjoined from violating a restrictive covenant contained in the parties’ employment contract because by its express terms it had terminated, but defendant’s conduct after he left his employment with plaintiff constituted a clear and unconscionable breach of the contract, costs would be taxed against defendant even though he was the prevailing party. Roy's Orthopedic, Inc. v. Lavigne, 145 Vt. 324, 487 A.2d 173, 1985 Vt. LEXIS 288 (1985).

§§ 2132-2135. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former §§ 2132-2135. Former § 2132, relating to costs in justice court, was derived from V.S. 1947, § 2181; G.L. § 2319; P.S. § 2041; V.S. § 1686; R.L. § 1444; 1878, No. 39 ; G.S. 125, §§ 18, 22; 1857, No. 30 ; R.S. 106, § 17; 1822, p. 3; 1805, p. 30; 1802, p. 106.

Former § 2133, relating to costs on appeals from justice on appeal by plaintiff, was derived from V.S. 1947, § 2182; P.L. § 2130; G.L. § 2320; 1917, No. 254 , § 2283; 1915, No. 91 , § 17; P.S. § 2042; V.S. § 1687; R.L. § 1445; G.S. 125, § 20; R.S. 106, § 20; 1822, p. 3; 1805, p. 31.

Former § 2134, relating to circumstances when appellant does not recover more, was derived from V.S. 1947, § 2183; P.L. § 2131; G.L. § 2321; 1915, No. 91 , § 17; P.S. § 2043; V.S. § 1688; R.L. § 1446; G.S. 125, § 19; R.S. 106, § 18; 1821, p. 77; R. 1797, p. 73, § 3.

Former § 2135, relating to appeal by defendant, was derived from V.S. 1947, § 2184; P.L. § 2132; G.L. § 2322; 1915, No. 91 , § 17; P.S. § 2044; V.S. § 1689; R.L. § 1447; 1878, Nos. 39, 40; G.S. 125, § 18; R.S. 106, § 17; 1822, p. 3; 1805, p. 31; 1802, p. 106.

§ 2136. Costs in Supreme and Superior Courts when nominal damages are recovered.

When the plaintiff in an action in Superior or Supreme Court recovers judgment for a nominal sum for debt or damages, in its discretion, the court may make such order in respect to plaintiff’s costs as is equitable, but not to exceed his or her taxable costs.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 72.

History

Source.

V.S. 1947, § 2171. P.L. § 2119. G.L. § 2309. P.S. § 2031. V.S. § 1675. R.L. § 1436. G.S. 33, § 18. 1856, No. 8 , § 5.

Amendments

—2009 (Adj. Sess.) Deleted “county” following “supreme” and substituted “superior” for “district” preceding “courts” in the section catchline, and deleted “district” preceding “superior” and inserted “or her” preceding “taxable costs”.

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1965. Substituted “district” for “municipal” court.

CROSS REFERENCES

Taxation of costs, see ch. 17 of Title 32.

ANNOTATIONS

Construction with other laws.

The exception in § 2137 of this title which allows plaintiff full costs in trespass on the freehold, when the right of title or possession of real estate comes in question, although he recovers no more than seven dollars damages, does not withdraw the subject from the scope and effect of this section. Clary v. McGlynn, 46 Vt. 347, 1874 Vt. LEXIS 4 (1874).

Nominal damages.

Where damages were practically nominal, the case as to costs was within the provisions of this section giving the court discretion in matter of costs. Pierce v. Spafford, 53 Vt. 394, 1881 Vt. LEXIS 15 (1881).

Review.

No exception having been taken to the action of the county court in not restricting costs, that question will not be considered in the Supreme Court. Collins v. St. Peters, 65 Vt. 618, 27 A. 425, 1893 Vt. LEXIS 103 (1893).

§ 2137. Costs exceeding damages.

Unless the plaintiff recovers more than $7.00 damages in actions for trespass on the freehold, other than those in which the right of title or possession of real estate comes in question, actions for slanderous words, actions for assault and battery and actions for false imprisonment, commenced before a District or Superior Court, he or she shall not recover more costs than damages. In such actions for trespass on the freehold or for assault and battery, if the court is of opinion that the trespass was willful and malicious, and so certifies, the plaintiff shall recover full costs.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2172. P.L. § 2120. G.L. § 2310. P.S. § 2032. V.S. § 1676. R.L. § 1437. G.S. 125, § 22. R.S. 106, §§ 22, 23. R. 1797, p. 123, § 97.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1965. Substituted “district” for “municipal” court.

ANNOTATIONS

Assault and battery.

Right of a plaintiff, after review by defendant in action of assault and battery, to recover full costs upon recovery of sum in damages not exceeding seven dollars, is restricted under this section to cases in which damages in the judgment reviewed from, did not exceed seven dollars. Plumley v. Marsh, 15 Vt. 306, 1843 Vt. LEXIS 45 (1843).

Construction with other laws.

Exception in this section which allows plaintiff full costs in trespass on the freehold, when the right of title or possession of real estate comes in question, although he recovers no more than seven dollars damages, does not withdraw the subject from the scope and effect of § 2136 of this title, which provides that when plaintiff recovers only nominal damages, the court may in its discretion make such order in respect to allowance of costs to plaintiff as shall be just and equitable. Clary v. McGlynn, 46 Vt. 347, 1874 Vt. LEXIS 4 (1874).

Right of title or possession.

Where plaintiff owned a piece of land and defendant an adjacent piece, the division line being in dispute, and defendant, claiming that it ran by a line of spotted trees, built a fence there, and so committed the act complained of while plaintiff claimed that it ran ten or twelve feet further south, the right of title or possession thereby came in question within the meaning of this section. Long v. Ober, 51 Vt. 73, 1878 Vt. LEXIS 124 (1878).

Where in county court action the jury found that defendant had committed trespass by cutting trees to the value of $ 3.50 on plaintiff’s side of the line, plaintiff under this section could recover no more costs than damages. Brainerd v. Casey, 37 Vt. 479, 1865 Vt. LEXIS 14 (1865).

To entitle plaintiff, in an action of trespass quare clausum fregit, to recover full costs, when costs exceed damages, plaintiff’s right of title, or right of possession, must be brought in question upon trial. Powers v. Leach, 22 Vt. 226, 1850 Vt. LEXIS 19 (1850).

Slanderous words.

Action for written slander is an action for “slanderous words,” within meaning of this section. Parsons v. Young, 2 Vt. 434, 1830 Vt. LEXIS 9 (1830).

Where appeal is taken from judgment exceeding seven dollars in an action of slander and plaintiff finally recovered no greater sum than seven dollars, he was restricted to no more costs than damages. Robinson v. Whitcher, 2 Vt. 563 (1829); Harris v. Lawrence, 1 Tyl. 164 (1801), same case 1 Tyl. 156.

Where, in action for defamatory words, plaintiff in county court recovered under seven dollars, and on repeal recovered above seven dollars damages, he had full costs in both courts. Dwinells v. Aikin, 2 Tyl. 75 (Vt. Feb. 1, 1802).

When, in action for slanderous words, verdict was found in county court for plaintiff, for a sum which did not surmount seven dollars, the county court on review could not tax the costs until the ratio of taxation was found, i.e., until judgment. Dwinells v. Aikin, 2 Tyl. 75 (Vt. Feb. 1, 1802).

Willful and malicious trespass.

Determination of whether trespass is willful and malicious and should be so certified is left to sound judicial discretion of trial court, and within such limits is not revisable; but either granting the certificate without evidence or refusing to grant the certificate when trespass was willful and malicious as a matter of law, would be reversible error. Severance v. Gage, 97 Vt. 33, 121 A. 753, 1923 Vt. LEXIS 212 (1923).

§ 2138. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 2138. Former § 2138 related to costs on discontinuance, abatement or nonsuit and was derived from V.S. 1947, § 1900; P.L. § 1847; G.L. § 2037; P.S. § 1758; V.S. § 1403; R.L. § 1170; G.S. 30, § 42; R.S. 25, § 33; 1830, No. 11 ; R. 1797, p. 99, § 52; R. 1787, pp. 28, 85. These sections are now covered by V.R.C.P. 41.

§ 2139. Tender of confession of judgment.

When a debtor, before or after an action is commenced, tenders to the creditor or to his or her agent or attorney holding the obligation or account against such debtor, a confession of judgment before a district judge for the amount of the debt and costs then accrued, and such tender is refused, the creditor shall not recover the costs made after such tender in procuring judgment for his or her debt.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 249 (Adj. Sess.), § 17, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2185. P.L. § 2133. G.L. § 2323. 1908, No. 62 . P.S. § 2045. V.S. § 1690. R.L. § 1448. G.S. 125, § 4. R.S. 106, § 4. R. 1797, p. 424, § 21. 1789, p. 12. R. 1787, p. 87.

Amendments

—1973 (Adj. Sess.). Omitted reference to justice of the peace.

—1965. Substituted “district” for “municipal” judge.

ANNOTATIONS

Confession of judgment.

Judgment based on a confession made by a debtor without the request or consent of creditor, and entered at the instance of debtor alone, was void unless creditor ratified or accepted it. Mason v. Ward, 80 Vt. 290, 67 A. 820, 1907 Vt. LEXIS 103 (1907).

Judgments on confession without antecedent process being based exclusively on the statute, full compliance with the statutory requirements was necessary to their validity and the provisions authorizing them were strictly construed. Mason v. Ward, 80 Vt. 290, 67 A. 820, 1907 Vt. LEXIS 103 (1907).

§§ 2140, 2141. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 2140, 2141. Former §§ 2140, 2141 related to tender of demand and costs and tender of amends. These sections are now covered by V.R.C.P. 68.

Former § 2140 was derived from V.S. 1947, § 2186; P.L. § 2134; G.L. § 2324; 1915, No. 91 , §§ 11, 17; P.S. § 2046; V.S. § 1691; R.L. § 1449; 1878, No. 37 ; G.S. 125, § 7; R.S. 106, § 6; 1802, No. 74 .

Former § 2141 was derived from V.S. 1947, § 2187; P.L. § 2135; G.L. § 2325; P.S. § 2047; V.S. § 1692; R.L. § 1450; G.S. 25, § 44; 1856, No. 15 , § 1; 1848, No. 33 .

§ 2142. Apportioning costs in case of several issues or claims.

When an action pending in a District or Superior Court or in the Supreme Court involves the trial of several and distinct issues or of several and distinct claims, in taxing the costs, the court shall allow to each party the costs accruing upon the issues or claims upon which he or she prevails.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2188. P.L. § 2136. G.L. § 2326. 1917, No. 254 , § 2289. P.S. § 2048. V.S. § 1693. R.L. § 1451. G.S. 33, § 17. 1856, No. 8 , § 4.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1965. Substituted “district” for “municipal” court.

ANNOTATIONS

Discretion of court.

Allowance of costs as a matter of discretion in the county court. Gilbert v. Earl, 47 Vt. 9, 1874 Vt. LEXIS 66 (1874).

Several issues or claims.

Where in trespass for cutting and drawing away trees, the original declaration was for treble damages but before trial plaintiff, without objection and without terms being either claimed or imposed, filed a new count for the same acts of the defendant declaring for single damages only, the issue on each count was the same and defendant was not entitled to costs to the time of the filing of the new count. Hathaway v. Goslant, 77 Vt. 199, 59 A. 835, 1905 Vt. LEXIS 110 (1905).

In an action of trover for the conversion of several articles where the plaintiff failed to recover all that he sued for, the defendant was not entitled under this section to an apportionment of the costs, as only a single issue was made by the pleadings. Ross v. White, 60 Vt. 558, 15 A. 184, 1888 Vt. LEXIS 179 (1888).

Section applied in cases where the issues and claims were several and distinct or to issues and claims made by the pleadings and had no reference to the constituent parts of a single general issue or claim or to those arising on the testimony on trial. Brainerd v. Casey, 37 Vt. 479, 1865 Vt. LEXIS 14 (1865).

In book account the county court had a discretionary power to deny full costs to the plaintiff if he failed to sustain his whole claim. Watts v. Kavanagh, 35 Vt. 34, 1861 Vt. LEXIS 112 (1861).

§ 2143. Actions which might have been joined.

If more than one action founded on a joint and several contract, or on different contracts between the same parties, are pending in a court at the same time, in its discretion, the court shall allow only such costs as are equitable between the parties.

History

Source.

V.S. 1947, § 2176. P.L. § 2124. G.L. § 2314. P.S. § 2036. V.S. § 1680. R.L. § 1441. G.S. 25, § 1. R.S. 106, § 1. 1798, p. 15.

§ 2144. Two judgments at one term; motion to chancer or redeem.

Unless there is a hearing on motion for a new trial, costs shall not be taxed for two judgments in one action at the same term nor shall costs be taxed on a motion to chancer or redeem, other than as provided by law.

History

Source.

V.S. 1947, § 2192. P.L. § 2140. G.L. § 2329. P.S. § 2051. V.S. § 1696. R.L. § 1454. G.S. 125, § 14. R.S. 106, § 13. 1821, p. 29.

§ 2145. Action on receipt for property levied upon.

Costs shall not be allowed the plaintiff in an action founded upon a receipt given to an officer for property taken by virtue of a writ of execution, unless the defendant delays final judgment by obtaining a continuance or entering an appeal.

History

Source.

V.S. 1947, § 2173. P.L. § 2121. G.L. § 2311. P.S. § 2033. V.S. § 1677. R.L. § 1438. G.S. 125, § 24. R.S. 106, § 25. 1802, p. 127.

§ 2146. Account which might have been adjusted in former action.

In an action founded on book account, a defendant who has personal notice of the action and neglects to present his or her account against the plaintiff and have it adjusted in such action, shall not recover costs in an action to recover the amount of such account against such plaintiff.

History

Source.

V.S. 1947, § 2174. P.L. § 2122. G.L. § 2312. P.S. § 2034. V.S. § 1678. R.L. § 1439. G.S. 125, § 23. R.S. 106, § 24. 1819, p. 13. R. 1787, p. 86.

ANNOTATIONS

Default judgments.

Party was not precluded by judgment against him by default from claiming, in a subsequent action brought by him against plaintiff in the former suit, certain items of indebtedness which existed before the rendition of the default judgment, because it was his privilege either to place these items in offset in the first suit, or to make them the basis of a later one, although if the former suit had been book account, the matter of costs might be affected by the course taken. Hutchins v. George, 92 Vt. 371, 104 A. 108, 1918 Vt. LEXIS 184 (1918).

Mistake.

Where, through mistake of auditor, an item in set-off was left and party was, in a subsequent action to recover on that item, unable to recover costs. Post v. Smilie, 48 Vt. 185, 1876 Vt. LEXIS 7 (1876).

Notice.

Where the defendant, in a book account action, had personal notice of the suit, not personal service of the writ, and neglected to present matters of account that he may then have had against the plaintiff, the provisions of this section denying him costs in a further action to recover such matters of account applied. Scott v. Niles, 40 Vt. 573, 1868 Vt. LEXIS 49 (1868).

§ 2147. Action on judgment upon which execution might have issued.

A person commencing an action founded on a judgment rendered in this State, upon which at the time of bringing his or her action execution might issue, shall not recover costs, if the court before whom it is brought considers that it was commenced without sufficient cause and that the creditor might as well have recovered his or her demand by execution.

History

Source.

V.S. 1947, § 2175. P.L. § 2123. G.L. § 2313. P.S. § 2035. V.S. § 1679. R.L. § 1440. G.S. 125, § 21. R.S. 106, § 21. R. 1797, p. 123, § 96.

§ 2148. Consolidation of actions against directors.

  1. In all causes brought to the same Superior Court in favor of different creditors of a corporation against the directors thereof, or some of them jointly, based upon the provisions of the act or articles of incorporation, or a statute, to recover for loss sustained by such creditors by reason of the incompetency, neglect or remissness of such directors, and where the same parties are defendants in each action, such causes may be consolidated by the court, upon request of the defendants or upon request of such of the several plaintiffs as shall join in a motion therefor, and proceed to final judgment as one cause, and only one bill of costs shall be allowed to the successful party in court.
  2. If such judgment is for the plaintiffs, it shall show the amount of damages awarded to each.  Separate executions shall issue thereon, with full costs in one cause and costs of writ, service and court fees in the others.  If such judgment is for the defendants, the execution shall run against all the plaintiffs; but, as between themselves, they shall bear the costs in proportion to the amount of their respective claims.
  3. When actions are brought by several plaintiffs against the same defendants, as provided in subsection (a) of this section and any of such causes are continued by the term without the fault of either party, or to await the result of similar pleadings in another cause, costs shall not be taxed at such term in favor of either party, except court fees.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, §§ 2177-2179. P.L. §§ 2125-2127. G.L. §§ 2315-2317. 1917, No. 254 , § 2278. P.S. §§ 2037-2039. R. 1906, §§ 1934, 1935. V.S. §§ 1681-1683. 1884, No. 100 , §§ 1-3.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

§ 2149. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 2149. Former § 2149, relating to ejectment and contract actions by mortgagee, was derived from V.S. 1947, § 2180; P.L. § 2128; G.L. § 2318; P.S. § 2040; V.S. § 1684; R.L. § 1442; G.S. 125, § 2; R.S. 106, § 2; 1798, p. 15.

Such section is now covered by V.R.C.P. 80.1.

§ 2150. Actions on negotiable paper or nonnegotiable choses in action.

In an action brought on a negotiable note or bill or on a nonnegotiable chose in action, the plaintiff shall not recover more costs than would have been taxed if the action had been brought in the name of the original payee or assignor.

History

Source.

V.S. 1947, § 2191. P.L. § 2139. G.L. § 2328. 1917, No. 254 , § 2291. 1915, No. 90 , § 6. P.S. § 2050. V.S. § 1695. R.L. § 1453. G.S. 125, § 10. R.S. 106, § 9. 1798, p. 17.

§ 2151. When defendant pleads bankruptcy and prevails.

In actions in which the bankruptcy of the defendant is set up in defense, and the defendant prevails solely by reason of such answer, the court may allow or disallow costs against the plaintiff.

History

Source.

V.S. 1947, § 2193. P.L. § 2141. G.L. § 2330. P.S. § 2052. V.S. § 1697. R.L. § 1455. G.S. 125, § 25. 1843, No. 3 , § 2.

§ 2152. Penalty for taxing or taking illegal costs or fees.

A clerk of a court who, in taxing costs, knowingly includes a greater sum than is provided for by law, or a person practicing before a court who knowingly makes up, takes, or receives a greater sum in costs than is provided for by law, or a person who knowingly receives greater fees than the law provides, shall pay to the person aggrieved 10 times such excess, to be recovered with costs in an action of tort on this statute.

History

Source.

V.S. 1947, § 2194. P.L. § 2142. G.L. § 2331. P.S. § 2053. V.S. § 1698. R.L. § 1456. G.S. 125, §§ 15-17. R.S. 106, §§ 14-16. 1821, p. 29. 1802, p. 76.

ANNOTATIONS

Knowledge and intent.

In this section “knowingly” is used in the sense of “intentionally,” meaning that the party charged was aware of the illegality of his conduct. Crawford v. Joslyn, 83 Vt. 361, 76 A. 108, 1910 Vt. LEXIS 204 (1910).

Where defendant had taxed and received fees for twenty miles travel, when there was evidence tending to show that the charge should have been for nineteen miles, the defendant was entitled to a directed verdict in the absence of any evidence tending to show that the overcharge was knowingly made. Weightman v. Jones, 73 Vt. 353, 50 A. 1101, 1901 Vt. LEXIS 190 (1901).

Where sheriff charged and received fees for services not enumerated in the statute, in good faith and with no intent to violate the law, he was not liable to the penalty imposed by this section. Haynes v. Hall, 37 Vt. 20, 1864 Vt. LEXIS 48 (1864).

An officer who received illegal fees was not liable to the penalty imposed by this section, unless he received such illegal fees knowingly. Henry v. Tilson, 17 Vt. 479, 1845 Vt. LEXIS 63 (1845).

Liability when costs taxed to other party.

An officer was liable for the penalty imposed for receiving illegal fees to the party from whom he received the illegal fees notwithstanding that that party subsequently obtained judgment in his favor in which the fees charged by the officer were taxed in the bill of cost and paid to him by the other party to that suit. Johnson v. Burnham, 22 Vt. 639, 1850 Vt. LEXIS 95 (1850).

Statute of limitations.

Section is a penal statute for purposes of determining the appropriate statute of limitations. Wheelock v. Sears, 19 Vt. 559, 1847 Vt. LEXIS 82 (1847).

Part 6. Proceedings After Verdict or Judgment

Chapter 101. New Trials; Appeals for Fraud, Accident, or Mistake

§§ 2351-2356. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 2351-2356. Former §§ 2351-2356 related to motions for new trials and appeals.

Former § 2351 was derived from V.S. 1947, § 2155; 1945, No. 29 , § 23; P.L. § 2103; G.L. § 2293; P.S. § 2016; V.S. § 1660; R.L. § 1421; G.S. 38, § 1; R.S. 33, § 1; 1819, p. 13; R. 1797, p. 615, § 1.

Former § 2352 was derived from V.S. 1947, § 2156; P.L. § 2104; G.L. § 2294; 1917, No. 254 , § 2257.

Former § 2353 was derived from V.S. 1947, § 2157; P.L. § 2105; G.L. § 2295; 1917, No. 254 , § 2258; P.S. § 2017; V.S. § 1661; R.L. § 1422; 1878, No. 21 , §§ 1, 3.

Former § 2354 was derived from V.S. 1947, § 2158; P.L. § 2106; G.L. § 2296; 1917, No. 254 , § 2259; P.S. § 2018; V.S. § 1662; R.L. § 1423; G.S. 38, § 2; R.S. 33, § 2; 1825, No. 1 , § 17; R. 1797, p. 615, § 1; 1793, p. 10.

Former § 2355 was derived from V.S. 1947, § 2159; 1945, No. 29 , § 24; P.L. § 2107; G.L. § 2297; 1917, No. 254 , § 2260; P.S. § 2019; V.S. § 1663; R.L. § 1424; G.S. 38, § 3; R.S. 33, § 3; R. 1797, p. 615, § 2; 1793, p. 10.

Former § 2356 was derived from V.S. 1947, § 2160; P.L. § 2108; G.L. § 2298; P.S. § 2020; V.S. § 1664; R.L. § 1425; G.S. 38, § 4; R.S. 33, § 4; R. 1797, p. 615, § 2.

§ 2357. Appeals in probate proceedings—Fraud, accident, or mistake.

When the petitioner has been prevented from taking or entering an appeal in a probate proceeding by fraud, accident, or mistake, on petition and proof thereof, the Supreme or Superior Court in its discretion may grant leave to file a notice of appeal from an order, sentence, decree, or denial of the Probate Division of the Superior Court or from a determination of commissioners on the estate of a deceased person in those cases which are by law appealable.

HISTORY: Amended 1959, No. 261 , § 55; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 73, eff. Feb. 1, 2011.

History

Source.

V.S. 1947, § 2161. P.L. § 2109. G.L. § 2299. P.S. § 2021. V.S. § 1665. R.L. § 1426. G.S. 38, § 5. R.S. 33, § 6. 1822, p. 13.

Amendments

—2009 (Adj. Sess.) Substituted “in probate proceedings” for “from probate court” in the section catchline, and inserted “in a probate proceeding” preceding “by fraud” and “division of the superior” preceding “court or from a determination” and made minor stylistic changes throughout the section.

—1973 (Adj. Sess.) Reference to “county court” was changed to “superior court”.

—1959. Changed provision for entering appeal to filing notice of appeal and deleted provision relating to security and costs.

CROSS REFERENCES

Appeals from probate court generally, see ch. 107 of this title.

ANNOTATIONS

Construction.

Petition for leave to enter appeal under this section is addressed to sound discretion of court to which it is preferred and is governed by equitable principles, so far as positive provisions of law will allow, for the statute is remedial in character and is to be construed liberally. Horicon v. Langlois, 115 Vt. 81, 52 A.2d 888, 1947 Vt. LEXIS 82 (1947); In re Corey's Est., 113 Vt. 449, 35 A.2d 377, 1944 Vt. LEXIS 100 (1944); Vilas v. Estate of Wortheim, 111 Vt. 152, 11 A.2d 264, 1940 Vt. LEXIS 136 (1940); In re Estate of Prouty, 107 Vt. 496, 181 A. 134, 1935 Vt. LEXIS 205 (1935); In re Walker's Est., 100 Vt. 366, 137 A. 321, 1927 Vt. LEXIS 166 (1927).

Demurrer.

When petition was challenged by demurrer, strict rules of common law pleading were not applied, but allegations were construed liberally, with view to substantial justice. In re Walker's Est., 100 Vt. 366, 137 A. 321, 1927 Vt. LEXIS 166 (1927).

Where petitionee claimed that petition did not set forth facts which entitled petitioner to relief, he should have demurred and not moved to dismiss. Marsh v. Graves, 68 Vt. 400, 35 A. 335, 1896 Vt. LEXIS 91 (1896).

Demurrer to petition for leave to enter appeal because petitioner was deprived of the right of appeal by fraud, accident, or mistake, admitted the facts stated in the petition to be true, and the judgment overruling the demurrer and granting the appeal was not reversed, where fraud, accident, or mistake could be inferred from the facts stated. Rutherford v. Allen, 62 Vt. 260, 19 A. 714, 1890 Vt. LEXIS 110 (1890).

Evidence.

On petition for leave to appeal from allowance of claim against decedent’s estate, it was not error to admit evidence which not only negatived petitioner’s claim that petitionee’s case is disputable, but showed that petitioner had no defense thereto. In re Brown's Est., 87 Vt. 465, 89 A. 872, 1914 Vt. LEXIS 260 (1914).

—Generally.

Decision of the Superior Court in the exercise of its discretion on a petition under this section is not reviewable unless its findings are unsupported by the evidence or it treats as accident or mistake that which as a matter of law is not. In re Estate of Gardner, 152 Vt. 597, 568 A.2d 401, 1989 Vt. LEXIS 198 (1989).

Action of court on petition under this section is not reviewable, unless its findings are unsupported by evidence or it treats as accident or mistake that which as matter of law is not. In re Walker's Est., 100 Vt. 366, 137 A. 321, 1927 Vt. LEXIS 166 (1927); Fitzgerald Land & Lumber Co. v. Prouty & Miller, 90 Vt. 363, 98 A. 918, 1916 Vt. LEXIS 288 (1916).

Where failure to enter appeal within time limited was wholly due to misunderstanding between the petitioner and his attorneys, and not to petitioner’s laches, the county court, in its discretion, granted the relief sought, and its decision was not revisable. Thayer v. Thayer's Est., 97 Vt. 23, 121 A. 439, 1923 Vt. LEXIS 209 (1923).

Where failure to perfect appeal was due to mistake of probate judge, belated appeal was allowed by lower court and its decision, in the exercise of its discretion, was not reviewable. Lillie v. Lillie’s Est., 56 Vt. 714 (1884), same case 55 Vt. 470.

County court decision to grant leave to creditor to enter appeal when his appeal was dismissed because of some defect in the bond, which he filed with the probate court, was not revisable. Burton v. Estate of Barlow, 55 Vt. 434, 1883 Vt. LEXIS 61 (1883).

Extent.

On appeal excepting party was required to produce record that made it appear that reversible error had been committed; the record was construed against him on review; and the Supreme Court was bound by record which imported absolute verity, and anything not shown by it was out of the case. Horicon v. Langlois, 115 Vt. 81, 52 A.2d 888, 1947 Vt. LEXIS 82 (1947).

Failure to act.

Even though will contestant was not given required notice under V.R.P.P. 77(d), Superior Court properly denied petition under this section, where contestant did not act promptly after being placed on actual or inquiry notice of the order allowing the will. In re Estate of Gardner, 152 Vt. 597, 568 A.2d 401, 1989 Vt. LEXIS 198 (1989).

Grounds for relief.

Where claimant did not receive notice required by 14 V.S.A. § 1160 through no fault of his own or one chargeable to him, he was entitled to appeal under this section. Vilas v. Estate of Wortheim, 111 Vt. 152, 11 A.2d 264, 1940 Vt. LEXIS 136 (1940).

Where acting judge intended to give petitioners notice of all his proceedings in case, but failed to notify them of his final findings and entry of final order, leave to enter appeal was granted. In re Estate of Prouty, 107 Vt. 496, 181 A. 134, 1935 Vt. LEXIS 205 (1935).

Where petitionee opposed probate of decedent’s will in New York proceedings, took out administration in Vermont and, after he had been allowed a large and fraudulent claim and the time for appeal had passed, discontinued his opposition in New York, appeal was properly allowed. Rutherford v. Allen, 62 Vt. 260, 19 A. 714, 1890 Vt. LEXIS 110 (1890).

Widow living in another state, where her husband died, leaving an estate there and also a farm in this State, was entitled to an appeal from the decision of the probate court, when the widow did not know that administration had been taken here, was not wanting in reasonable diligence and was justified in supposing that nothing was necessary to be done to protect her interest. Congdon v. Congdon, 59 Vt. 597, 10 A. 732, 1887 Vt. LEXIS 163 (1887).

Where petitioner resided out of State and did not hear of testator’s death, nor of probate of his will, until after it had been probated and time for appeal had elapsed, although notice of probate was duly published, there was no accident and petition could not be maintained. Burbeck v. Little, 50 Vt. 713, 1878 Vt. LEXIS 41 (1878).

Denial of appeal by the probate court to which appellant is entitled, was a mistake which entitled appellant to relief. Sabine v. Rounds, 50 Vt. 74, 1877 Vt. LEXIS 63 (1877).

Supreme Court had no power to grant new trial where cause alleged was that petitioner, by reason of accident, failed to enter bail for review in county court. Beckwith v. Middlesex, 20 Vt. 593, 1848 Vt. LEXIS 82 (1848).

Necessity of recognizance.

Petition to county court for leave to appeal from decree of probate court allowing supplemental account of special administrator, not having recognizance required by § 2362 of this title, was void. Holden v. Campbell, 101 Vt. 474, 144 A. 455, 1929 Vt. LEXIS 192 (1929).

Negligence.

Where facts relied upon in petition under this section showed negligence, the alleged negligence was such that the court in its discretion gave relief. In re Corey's Est., 113 Vt. 449, 35 A.2d 377, 1944 Vt. LEXIS 100 (1944).

§ 2358. Service of petition; time limitation.

The petition shall be filed and served on the adverse party like a summons and complaint. The adverse party shall file and serve an answer. The petition shall not be sustained unless it is preferred within two years after the alleged fraud, accident, or mistake happened, provided that the petition shall be brought before the estate is fully settled in the Probate Division of the Superior Court.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 52, eff. March 29, 1972; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source.

V.S. 1947, § 2162. 1945, No. 29 , § 25. P.L. § 2110. 1925, No. 46 . G.L. § 2300. P.S. § 2022. V.S. § 1666. R.L. § 1427. G.S. 38, § 6. R.S. 33, § 7. 1822, p. 13.

Amendments

—2009 (Adj. Sess.) Substituted “probate division of the superior court” for “probate court”.

—1971 (Adj. Sess.). Rephrased, provided for filing and serving of summons and complaint and provided for filing and serving answer.

ANNOTATIONS

Time limitations.

Petition for appeal from probate court under this section was required to be brought to the next term, or the next term but one after the happening of the fraud, accident or mistake, and not after the same became known to the petitioner. Cilley v. Flanders' Est., 62 Vt. 82, 19 A. 116, 1889 Vt. LEXIS 112 (1889).

§§ 2359-2361. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former §§ 2359-2361. Former § 2359, relating to appeals from justice’s judgment, fraud, accident or mistake, was derived from V.S. 1947, § 2163; P.L. § 2111; G.L. § 2301; P.S. § 2023; V.S. § 1667, R.L. § 1428; G.S. 38, § 7; 1856, No. 10 ; R.S. 33, § 8; 1829, No. 1 , § 2.

Former § 2360, relating to time limitations and service of petition, was derived from V.S. 1947, § 2164; 1945, No. 29 , § 26; P.L. § 2112; G.L. § 2302; P.S. § 2024; V.S. § 1668; R.L. § 1429; G.S. 38, § 8; 1843, No. 5 ; R.S. 33, § 9; 1829, No. 1 , § 2.

Former § 2361, requiting a copy of record to be filed, was derived from V.S. 1947, § 2165; P.L. § 2113; G.L. § 2303; P.S. § 2025; V.S. § 1669; R.L. § 1430; G.S. 38, § 13, R.S. 33, § 12.

Judgments; right of review preserved. 1973, No. 249 (Adj. Sess.), § 105, provided: “A defendant or trustee against whom judgment was rendered by a justice of the peace, and who would be entitled to relief under 12 V.S.A. § 917 or 2359 shall be entitled to the same relief in the same manner within the same time in the Supreme Court or in the district court for the same county wherein the judgment was rendered, as the case may be.”

§ 2362. Recognizance on petition to enter an appeal.

A petition to enter an appeal shall not issue until a Justice of the Supreme Court, the presiding judge, or a district judge of the court having jurisdiction of the same, as the case may be, has taken sufficient security by way of recognizance to the adverse party, which shall be minuted on the summons or petition, conditioned that, if the petitioner fails to prosecute his or her petition to effect or finally to recover in the action, he or she will pay the adverse party the intervening damages and costs accruing to him or her by reason of such petition.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 54, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2166. P.L. § 2114. G.L. § 2304. 1917, No. 254 , § 2267. P.S. § 2026. V.S. § 1670. R.L. § 1431. 1878, No. 21 , § 2. G.S. 38, § 9. R.S. 33, § 10. 1829, No. 1 , § 2.

Amendments

—1971 (Adj. Sess.). Rephrased and limited section to appeals.

CROSS REFERENCES

New trials, see V.R.C.P. 59; D.C.C.R. 59.

Relief from judgment or order, see V.R.C.P. 60(b); D.C.C.R. 60.

ANNOTATIONS

Application.

Section, which provides for security by way of recognizance on appeal, is applicable only to proceedings authorized by this chapter. First National Bank of Boston v. Harvey, 111 Vt. 281, 16 A.2d 184, 1940 Vt. LEXIS 158 (1940).

Construction with other laws.

Section 657 of this title concluding with “if a writ is otherwise issued, it shall, on motion, abate” is thereby distinguished from this section and the lack of recognizance required becomes merely abatable matter. Wescott v. Briere, 111 Vt. 403, 17 A.2d 244, 1941 Vt. LEXIS 170 (1941).

Recognizance conditioned upon prosecuting an appeal to effect and to pay the intervening damages and costs if unsuccessful as required by this section is unnecessary in an appeal under 32 V.S.A. § 6070 . First National Bank of Boston v. Harvey, 111 Vt. 281, 16 A.2d 184, 1940 Vt. LEXIS 158 (1940).

On petition to county court under § 2357 of this title for allowance of an appeal from a decree of probate court allowing supplemental account of special administrator recognizance complying with § 657 of this title, providing for writs of summons, but not with this section, was void, provisions of latter section applying to all petitions mentioned in this chapter. Holden v. Campbell, 101 Vt. 474, 144 A. 455, 1929 Vt. LEXIS 192 (1929).

Recognizance.

Where recognizance attached to petition for new trial was conditioned only for payment of costs and prosecution of petition, process was void and petition should have been dismissed, since section requires that such recognizance also be conditioned for payment of intervening damages. Ford v. Smead, 109 Vt. 129, 194 A. 369, 1937 Vt. LEXIS 124 (1937).

Under this section, recognizance on petition for a new trial must be entered into before a Justice of the Supreme Court; and a master in chancery, not being an “officer duly authorized for that purpose,” recognizance entered into before him is void, and being void nothing done by justice, court, or party could make it valid. Capital Garage Co. v. Gordon, 99 Vt. 83, 130 A. 756, 1925 Vt. LEXIS 172 (1925).

Recognizance taken upon a petition to the county court for a new trial in a justice suit became, where the new trial was granted, security in the principal action and a matter of record in the Supreme Court where the suit was finally determined. Shumway v. Sargeant, 27 Vt. 440, 1855 Vt. LEXIS 53 (1855).

In petition for new trial of action tried in county court, it was not necessary that petitioner give security for costs to adverse party, on issuing citation, as was required on issuing of writs of summons. Durkee v. Marshall, 14 Vt. 559, 1842 Vt. LEXIS 98 (1842).

Where recognizance, taken for the prosecution of a petition for a new trial, was defective, the petition was not for that reason dismissed, but further security was ordered. Houghton v. Slack, 10 Vt. 520, 1838 Vt. LEXIS 103 (1838).

§ 2363. Stay of proceedings; bail and liens not affected.

In his or her discretion, a justice or judge of the court having jurisdiction of such petition, by an order signed by him or her, may direct a stay of proceedings on the judgment, whether execution has issued or not, until a final decision is made upon such petition. Such stay of proceedings shall not operate to discharge or release bail or extinguish or prevent the perfecting of a lien which the petitionee has acquired upon the property of the petitioner by attachment or levy of execution.

History

Source.

V.S. 1947, § 2167. P.L. § 2115. G.L. § 2305. 1915, No. 1 , § 87. P.S. § 2027. V.S. § 1671. R.L. § 1432. 1878, No. 21 , § 1. G.S. 38, § 10. R.S. 33, § 11. 1829, No. 1 , § 2.

Superseded by rule. This section is superseded by V.R.C.P. 62(a); V.R.A.P. 4(a), as to new trial only.

ANNOTATIONS

Failure to observe supersedeas.

Where execution in hands of officer, after a levy upon personal property but before sale, was superseded by the order of a judge under this section and, the supersedeas being made known to the sheriff, he still compelled the party to pay the money, he acted without authority and the money was recovered of the sheriff in an action for money had and received. Hopkinson v. Sears, 14 Vt. 494, 1842 Vt. LEXIS 87 (1842).

§ 2364. Repealed. 1971, No. 185 (Adj. Sess.), § 237 eff. March 29, 1972.

History

Former § 2364. Former § 2364 related to stay of proceedings and was derived from V.S. 1947, § 2168; P.L. § 2116; G.L. § 2306; P.S. § 2028; 1906, No. 63 , § 35; V.S. § 1672; R.L. § 1433; 1878, No. 21 , § 1.

§ 2365. Copy of process and recognizance to be filed.

The magistrate ordering a stay of proceedings shall take a copy of the process and recognizance, and file the same in the office of the clerk of the court to which the petition is made returnable or with the judge of the court, if it has no clerk.

History

Source.

V.S. 1947, § 2169. P.L. § 2117. G.L. § 2307. 1915, No. 1 , § 88. P.S. § 2029. V.S. § 1673. R.L. § 1434. G.S. 38, § 11. 1848, No. 27 . 1847, No. 38 , § 3.

Superseded by rule. This section is superseded by V.R.C.P. 62(a); V.R.A.P. 4(a), as to new trial only.

§ 2366. Failure to prosecute petition.

If the petition is not served or filed within such time as the Supreme Court may by rule provide for the service or filing of the complaint in a civil action in a Superior Court, the action may be dismissed on motion and notice. The Court shall thereupon render judgment for the petitionee to recover his or her costs, and, if the Court is of opinion that the petition was brought to delay the collection of an execution, it shall award to the original creditor 12 percent interest on the original debt, with double costs.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 55, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2170. 1945, No. 29 , § 27. P.L. § 2118. G.L. § 2308. 1917, No. 254 , § 2271. P.S. § 2030. V.S. § 1674. R.L. § 1435. G.S. 38, § 12. 1847, No. 38 , § 4.

Revision note—

Reference to “county court” was changed to “superior court” pursuant to 1973, No. 193 (Adj. Sess.), § 3. See note under 4 V.S.A. § 71 .

Amendments

—1971 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

New trials, see V.R.C.P. 59.

Relief from judgment or order, see V.R.C.P. 60(b).

Chapter 102. Appellate Procedure

ANNOTATIONS

Cited.

Cited in West v. Village of Morrisville, 728 F.2d 130, 1984 U.S. App. LEXIS 25445 (2d Cir. 1984).

§§ 2381, 2382. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 2381-2382. Former §§ 2381, 2382 related to exceptions and notice of appeal and were derived from 1959, No. 261 , §§ 45, 46; 1961, No. 181 , § 1. These sections are now covered by V.R.C.P. 46 and V.R.A.P. 3.

§ 2383. Time for filing notice of appeal.

Except as otherwise provided by law, a notice of appeal shall be filed within 30 days from the date of the entry of any appealable judgment, order, ruling, decree or sentence of any court, commission, board, agency, or department of the State or any political subdivision thereof. The Supreme Court may by rule provide for extension of the time for appeal to allow a cross appeal or for cause.

HISTORY: 1959, No. 261 , § 47; amended 1961, No. 181 , § 2; 1971, No. 185 (Adj. Sess.), § 56, eff. March 29, 1972.

History

Amendments

—1971 (Adj. Sess.). Section amended generally.

—1961. Changed the computation of time for and method of filing notice of appeal; the time was formerly 30 days after the appealing party received notice of rendition of the judgment, etc., and the clerk was required to send the appealing party a conformed copy of the judgment, etc.; and added provisions as to death sentence or life imprisonment.

Derivation. Rule 73 of Federal Rules of Civil Procedure.

CROSS REFERENCES

Appeals as of right, how and when taken, see V.R.A.P. 3, 4.

ANNOTATIONS

Constitutionality.

A prisoner convicted of arson and denied appellate review because of failure to comply with notice of appeal requirements of this section was not deprived of his constitutional rights particularly when there was a showing that prisoner was treated no different from others and the requirements of this section are neither unreasonable or discriminatory. United States ex rel. Brown v. Smith, 306 F.2d 596, 1962 U.S. App. LEXIS 4459 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S. Ct. 1012, 10 L. Ed. 2d 11, 1963 U.S. LEXIS 1894 (1963).

Construction.

Enactment of this section and sections 2381, 2382 of this title was intended to simplify the rules of practice and procedure in accordance with the federal rules of civil procedure, and these sections should be construed in a manner which is consistent with the accomplishment of the intended purpose to expedite appeals and guard against dilatory tactics. In re Estate of Davis, 125 Vt. 446, 218 A.2d 390, 1966 Vt. LEXIS 206 (1966).

Construction with other laws.

Thirty-day period for appeal under 32 V.S.A. § 9817 from a decision or action of the Commissioner of Taxes is a special statute concerning a specific subject, and the period may not be extended under this section providing for extension of time for appeal for cause or under rule so providing. F. M. Burlington Co. v. Commissioner of Taxes, 134 Vt. 515, 365 A.2d 531, 1976 Vt. LEXIS 716 (1976).

Where findings and judgment were simultaneously filed, objections to findings, filed under chancery rule, could not operate to stay entry of judgment, a result which could be accomplished only by prevailing upon chancellor to strike the entry of judgment, and where such relief was not requested and had, the judgment entry stood and the time requirements of this section for appeal applied. Village of Northfield v. Chittenden Trust Co., 128 Vt. 240, 260 A.2d 406, 1969 Vt. LEXIS 232 (1969).

County courts.

The several county courts are within the specification of this section. Rice Lumber Co. v. Baslow, 123 Vt. 443, 194 A.2d 65, 1963 Vt. LEXIS 105 (1963).

Final order.

In divorce action, husband’s appeal of March 2, 1995 order striking the parties’ final stipulation was not untimely, despite wife’s contention that this decision constituted, for purposes of V.R.A.P. 4 and 12 V.S.A. § 2383 , a “final order” and that, therefore, husband should have appealed within 30 days of the order. To be final and appealable an order must end litigation on the merits or conclusively determine the rights of the parties, leaving nothing for the court to do but execute the judgment. After the court set aside the stipulation, because the issues of parental rights and responsibilities and property distribution remained for further consideration, this order was not final, and husband’s appeal, filed within 30 days of the September 15, 1995 order awarding parental rights and responsibilities and $7500 to wife, was timely. Putnam v. Putnam, 166 Vt. 108, 689 A.2d 446, 1996 Vt. LEXIS 125 (1996).

Necessity for writing.

Under this section, delivery by mail or by hand must necessarily refer to written document as notice of entry of judgment, and implied notice, or notice by word of mouth, cannot supply delivery of notice by mail or hand made mandatory by statute. Harlow v. State Highway Board, 123 Vt. 176, 184 A.2d 547, 1962 Vt. LEXIS 217 (1962).

Perfection of appeal.

Superior Court lacked jurisdiction to review an order of the division of rate setting of the agency of human services, which demanded payment representing recaptured depreciation from the sale of a nursing home, where nursing home owner filed its complaint nearly one year after the recapture decision was made. LD & MD, Inc. v. State, 154 Vt. 384, 576 A.2d 1244, 1990 Vt. LEXIS 84 (1990).

If a litigant desires a review of his case in Supreme Court he must apply for it in time and manner prescribed by this section. Poulin v. Town of Danville, 127 Vt. 421, 250 A.2d 842, 1969 Vt. LEXIS 249 (1969).

Failure to file a notice of appeal within the period specified by this section ends Supreme Court’s authority to grant review under its provisions. Village of Northfield v. Chittenden Trust Co., 128 Vt. 240, 260 A.2d 406, 1969 Vt. LEXIS 232 (1969).

The method and time for perfecting appeals is governed by this section. Rice Lumber Co. v. Baslow, 123 Vt. 443, 194 A.2d 65, 1963 Vt. LEXIS 105 (1963).

When a party has performed all acts required by statute to transfer jurisdiction of a matter to the Appellate Court, the appeal is perfected. Anderson v. Vermont Electric Power Co., 122 Vt. 43, 164 A.2d 156, 1960 Vt. LEXIS 98 (1960).

Time.

A complaint seeking de novo review in superior court of an order of the division of rate setting of the agency of human services must be filed within 30 days from the date of entry of the order; claims that the division’s actions were improper may not be cited to excuse untimely filing. LD & MD, Inc. v. State, 154 Vt. 384, 576 A.2d 1244, 1990 Vt. LEXIS 84 (1990).

A letter from the division of rate setting of the agency of human services, which demanded payment representing recaptured depreciation from the proceeds of the sale of a nursing home, was an agency order which triggered the running of the appeal period. LD & MD, Inc. v. State, 154 Vt. 384, 576 A.2d 1244, 1990 Vt. LEXIS 84 (1990).

Where judgment was filed on September 5 and appellant received notice of it on September 8, notice of appeal filed on October 9 was too late to preserve Supreme Court’s appellate jurisdiction. Village of Northfield v. Chittenden Trust Co., 128 Vt. 240, 260 A.2d 406, 1969 Vt. LEXIS 232 (1969).

The jurisdictional demands of an appeal statute must be fully complied with within the time prescribed. Badger v. Rice, 124 Vt. 82, 196 A.2d 503, 1963 Vt. LEXIS 35 (1963).

In computing the thirty-day period, the date when the judgment was entered is not included. Rice Lumber Co. v. Baslow, 123 Vt. 443, 194 A.2d 65, 1963 Vt. LEXIS 105 (1963).

The thirty-day period specified in this section is determined by the time of recording the judgment rather than the time of rendition of judgment. Rice Lumber Co. v. Baslow, 123 Vt. 443, 194 A.2d 65, 1963 Vt. LEXIS 105 (1963).

The record on appeal should clearly and definitely indicate the date when the clerk mails or delivers copies of the judgment order and the date when the appellant mails or delivers his notice of appeal. Rice Lumber Co. v. Baslow, 123 Vt. 443, 194 A.2d 65, 1963 Vt. LEXIS 105 (1963).

There is a distinction between the rendition of a judgment and the entry of judgment in the official record of the court, the first being a judicial act of the court and the second a ministerial act of the clerk in recording what has been adjudicated. Rice Lumber Co. v. Baslow, 123 Vt. 443, 194 A.2d 65, 1963 Vt. LEXIS 105 (1963).

The requirement as to time of filing notice of appeal is mandatory, and, once time has expired, court is left without authority to act. State v. Brown, 121 Vt. 459, 160 A.2d 879, 1960 Vt. LEXIS 144 (1960).

Prior to 1961 amendment to this section, notice of appeal had to be filed within 30 days after conformed copy of any appealable judgment, order, ruling, decree or sentence had been mailed or delivered by hand to attorney of record for appealing party, or to appealing party if he had no attorney of record. Murphy Motor Sales v. First National Bank, 121 Vt. 404, 159 A.2d 94, 1960 Vt. LEXIS 137 (1960).

Cited.

Cited in Cattle Investors Management Corp. v. Poutre, 148 Vt. 508, 535 A.2d 787, 1987 Vt. LEXIS 533 (1987); Powers v. Hayes, 170 Vt. 639, 751 A.2d 781, 2000 Vt. LEXIS 47 (2000) (mem.).

§§ 2384, 2385. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 2384-2385. Former §§ 2384, 2385 related to question passing and findings of fact and were derived from 1959, No. 261 , §§ 48, 49. These sections are now covered by V.R.C.P. 52, 72(c), (d), 74(c), (d); V.R.A.P. 3(a).

§ 2386. Passing causes before final judgment.

  1. Before final judgment in civil actions or proceedings in the Superior Courts, an appeal to the Supreme Court for the determination of questions of law may be taken in such manner and under such conditions as the Supreme Court may by rule provide.
  2. In its discretion and before final judgment, a Superior Court may permit an appeal to be taken by the respondent or the State in a criminal cause to the Supreme Court for determination of questions of law. The Supreme Court shall hear and determine the questions and render final judgment thereon or remand the proceedings as justice and the state of the cause may require.

HISTORY: Added 1959, No. 261 , § 50; amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1971, No. 185 (Adj. Sess.), § 57, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), §§ 74, 74a, eff. Feb. 1, 2011.

History

Revision note

—2002. In subsec. (a), substituted “an appeal to the supreme court” for “on appeal to the supreme court” to correct apparent typographical error.

Amendments

—2009 (Adj. Sess.) Act 154, § 74 inserted “or” preceding “the probate courts” and deleted “or the district court” thereafter in subsec. (a), and deleted “or the district court” following “superior court” and made minor changes in punctuation in the first sentence of subsec. (b).

Act 154, § 74a deleted “or the probate courts” following “superior courts” in subsec. (a), effective February 1, 2011.

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “courts” in subsec. (a) and “court” in subsec. (b).

—1971 (Adj. Sess.). Subsec. (a): Added.

Subsec. (b): Original section designated as subsec. (b), rephrased, omitted reference to chancery and probate court, omitted “by any party in a civil cause or proceeding”.

—1965. Substituted “county” for “municipal” court.

CROSS REFERENCES

Appeals before final judgment, see V.R.A.P. 5.

ANNOTATIONS

Abstract answers.

Questions certified before final judgment must be answered in the context of the particular case and not in the abstract. Dubie v. Cass-Warner Corp., 125 Vt. 476, 218 A.2d 694, 1966 Vt. LEXIS 214 (1966).

Abstract or indefinite questions.

A certified question is improper and will not be answered where it is broad and indefinite and admits of one answer under one set of circumstances and a different answer under another. Swanton Village v. Town of Highgate, 128 Vt. 401, 264 A.2d 804, 1970 Vt. LEXIS 242 (1970).

However broad the language of a certified question, any answer by Supreme Court must be given in light of the factual situation of the case from which the question arises. State v. Woodmansee, 128 Vt. 398, 264 A.2d 802, 1970 Vt. LEXIS 241, cert. denied, 400 U.S. 847, 91 S. Ct. 94, 27 L. Ed. 2d 85, 1970 U.S. LEXIS 1177 (1970).

Abstract questions are not to be answered in a proceeding of the type allowed by this section. State v. Woodmansee, 128 Vt. 398, 264 A.2d 802, 1970 Vt. LEXIS 241, cert. denied, 400 U.S. 847, 91 S. Ct. 94, 27 L. Ed. 2d 85, 1970 U.S. LEXIS 1177 (1970).

Question certified before final judgment should be carefully and precisely framed to clearly present the distinct and critical issues of law; questions which are broad and indefinite, that permit varying and unprecise answers are not properly before Supreme Court. Wilbur v. U.V.M. & S.A.C., 127 Vt. 283, 247 A.2d 897, 1968 Vt. LEXIS 224 (1968).

Amending pleading in passed cause.

Supreme Court would, in its discretion, deny amendment in substance of pleading where the amendment could be better handled in the trial court, especially since the case was in Supreme Court only for determination of certified questions submitted under this section. Swanton Village v. Town of Highgate, 128 Vt. 401, 264 A.2d 804, 1970 Vt. LEXIS 242 (1970).

Appeal from probate court.

On direct appeal from final probate decree, Supreme Court will review only “pure” questions of law, resolution of which does not depend upon factual distinctions and does not require review of record. In re Estate of Johnson, 158 Vt. 557, 613 A.2d 703, 1992 Vt. LEXIS 88 (1992).

Where factual distinctions could control resolution of issue presented from probate proceeding, issue is not appropriate for review by Supreme Court. In re Estate of Johnson, 158 Vt. 557, 613 A.2d 703, 1992 Vt. LEXIS 88 (1992).

Where resolution of issues presented on appeal from final probate decree, which involved admission of character evidence, waiver of dead man’s statute, and rebuttable presumption of revocation of lost will, required consideration of particular procedural and substantive facts of case, they were more appropriately addressed in Superior Court than in Supreme Court. In re Estate of Johnson, 158 Vt. 557, 613 A.2d 703, 1992 Vt. LEXIS 88 (1992).

The provisions of this section were not intended to deprive an interested litigant in probate court of his right of direct appeal to the Supreme Court on questions of law, rather only the method for transferring the question has been changed. In re Estate of Davis, 125 Vt. 446, 218 A.2d 390, 1966 Vt. LEXIS 206 (1966).

Basis of appeal.

This section contemplates certification of those questions of law which trial court conceives to be dispositive of the action and which will perhaps alleviate burden of a needless trial, not abstract or formulated questions. State v. Lane, 129 Vt. 436, 282 A.2d 796, 1971 Vt. LEXIS 286 (1971).

Statutes authorizing certification of questions by a trial court before final judgment may not be used as a substitute for a final appeal or to secure an advisory opinion. State v. Lane, 129 Vt. 436, 282 A.2d 796, 1971 Vt. LEXIS 286 (1971).

If an order is not a final order, it could come to the Supreme Court only under the authority and procedures provided by section 2382 of this title and this section. Walker v. Walker, 123 Vt. 430, 192 A.2d 460, 1963 Vt. LEXIS 111 (1963).

Before a question is certified to the Supreme Court under this section it must be developed to a point susceptible of a determination which has actual application to the existing situation of the parties, and only those questions should be so certified which bring with them a framework sufficient to enable the Supreme Court to render a decision which will be pertinent and inevitable in the disposition of the case below. Powers v. State Highway Board, 123 Vt. 1, 178 A.2d 390, 1962 Vt. LEXIS 184 (1962).

Certifying evidentiary question.

Questions addressed to the admission as exclusion of evidence are neither suitable nor amenable to interlocutory appeals; the resolution of such questions by interlocutory appeal seldom materially advances the termination of the litigation. State v. Blondin, 128 Vt. 613, 270 A.2d 165, 1970 Vt. LEXIS 286 (1970).

This section contemplates the certification of those questions of law which the trial court conceives to be dispositive of the action and which will perhaps alienate the burden of needless trial. State v. Blondin, 128 Vt. 613, 270 A.2d 165, 1970 Vt. LEXIS 286 (1970).

Denial of defendant’s pre-trial motion to suppress or exclude confession was tentative only, subject to revision at trial and not reviewable at that stage of the proceedings. State v. Blondin, 128 Vt. 613, 270 A.2d 165, 1970 Vt. LEXIS 286 (1970).

Discretion of county court, under this section, did not extend to certifying question whether or not part or all of testimony of witness as to value of land involved in condemnation case should have been stricken. Miller Automobile Co. v. State Highway Board, 126 Vt. 389, 233 A.2d 48, 1967 Vt. LEXIS 206 (1967).

Discretionary matters.

The action of a trial court on a motion addressed to its discretion is not reversible unless based on grounds or for reasons clearly untenable or to an extent clearly unreasonable. John v. Fernandez, 124 Vt. 346, 205 A.2d 552, 1964 Vt. LEXIS 111 (1964).

Courts will not interfere with zoning or administrative action unless clearly unreasonable, irrational, arbitrary or discriminatory. City of Rutland v. Keiffer, 124 Vt. 357, 205 A.2d 400, 1964 Vt. LEXIS 114 (1964).

Failure to brief.

Failure to brief certified questions waived their determination. Swanton Village v. Town of Highgate, 128 Vt. 401, 264 A.2d 804, 1970 Vt. LEXIS 242 (1970).

Failure to object to review.

If plaintiff was aggrieved by order allowing interlocutory appeal by defendant, plaintiff should have made known the objection when permission for appeal was granted. Town of Putney v. Town of Brookline, 126 Vt. 194, 225 A.2d 388, 1967 Vt. LEXIS 166 (1967).

Where intermediate review of county court’s ruling on stipulated question of law had been contemplated and court preserved that right in two orders without objection by plaintiff, Supreme Court would not entertain protest by plaintiff on ground that it had not been afforded hearing on the permissive action passing case to Supreme Court before final judgment. Town of Putney v. Town of Brookline, 126 Vt. 194, 225 A.2d 388, 1967 Vt. LEXIS 166 (1967).

Failure to preserve.

Where claimed defects appropriate for raising by pre-trial motion under this section are not preserved by such motion, and a guilty plea is made, failure to preserve justifies a holding by the court concerned that the guilty plea operates as waiver of those claims of error subject to waiver. In re Provencher, 127 Vt. 558, 255 A.2d 180, 1969 Vt. LEXIS 276 (1969).

Until the requirements of instant case with respect to the preservation, by one who pleads guilty, of claimed defects appropriate for raising by pre-trial motion, by making such motion become known and understood, the courts may review application of the doctrine that a guilty plea waives defects not preserved; and thereafter, the courts may also review application of the doctrine where manifest wrong or injustice overbears any justification for relying on the doctrine. In re Provencher, 127 Vt. 558, 255 A.2d 180, 1969 Vt. LEXIS 276 (1969).

The court would review the lawfulness of the confinement of post-conviction relief petitioner who plead guilty and did not, by pre-trial motion, preserve for review claimed defects appropriately raised by such motion, in light of unfamiliarity of the requirements set by instant case with respect to the preservation, by one who pleads guilty, of claimed defects appropriately raised by pre-trial motion and in light of broad scope of review in post-conviction relief proceedings and the attendant discretionary powers. In re Provencher, 127 Vt. 558, 255 A.2d 180, 1969 Vt. LEXIS 276 (1969).

One who fails to preserve by motion those claimed defects which are appropriate for raising by pre-trial motion exposes himself to an allegation of waiver and must, in the usual case, abide the consequence. In re Provencher, 127 Vt. 558, 255 A.2d 180, 1969 Vt. LEXIS 276 (1969).

Final judgment.

In general, a defendant in a criminal case should not be permitted to appeal until after a final judgment adverse to him has been entered in trial court, and practice of certifying, before judgment, appropriate questions on agreement of the parties and in the discretion of the presiding judge and where the disposition thereof would in at least one alternative finally dispose of the action, will be most strictly applied. State v. Lane, 129 Vt. 436, 282 A.2d 796, 1971 Vt. LEXIS 286 (1971).

A decree adjudging a bill insufficient and sustaining a demurrer thereto, is not a final order or decree. Poulin v. Town of Danville, 127 Vt. 421, 250 A.2d 842, 1969 Vt. LEXIS 249 (1969).

Merely sustaining a demurrer without dismissing the bill is not a final judgment. Poulin v. Town of Danville, 127 Vt. 421, 250 A.2d 842, 1969 Vt. LEXIS 249 (1969).

Denial, at conclusion of plaintiff’s evidence, of defendants’ motion to dismiss, was not a “final judgment.” Chester v. Drake, 126 Vt. 472, 236 A.2d 664, 1967 Vt. LEXIS 223 (1967).

The test of whether a decree or judgment is final is whether it makes a final disposition of the subject matter before the court. Woodard v. Porter Hospital, Inc., 125 Vt. 264, 214 A.2d 67, 1965 Vt. LEXIS 236 (1965).

Joinder of parties.

The issue presented to this court for review under this section is whether or not trial court’s refusal to grant the motion to permit the joinder of additional parties was an abuse of discretion as a matter of law, and it is answered in the negative. John v. Fernandez, 124 Vt. 346, 205 A.2d 552, 1964 Vt. LEXIS 111 (1964).

Judicial discretion.

Permission of the lower court to appeal interlocutory orders, though essential to jurisdiction of Supreme Court, is a matter of discretion with court below. Wilbur v. U.V.M. & S.A.C., 127 Vt. 283, 247 A.2d 897, 1968 Vt. LEXIS 224 (1968).

Unlike appeals from final judgment, which are available as a matter of right, the time for certifying questions may be enlarged by Supreme Court; and there is equivalent discretion in the court in which question arises to extend the time for perfecting the appeal in order to afford adequate hearing on the request. Wilbur v. U.V.M. & S.A.C., 127 Vt. 283, 247 A.2d 897, 1968 Vt. LEXIS 224 (1968).

Discretion of county court, under this section and related Supreme Court Rule 2A [2] is judicial, not absolute. Miller Automobile Co. v. State Highway Board, 126 Vt. 389, 233 A.2d 48, 1967 Vt. LEXIS 206 (1967).

Order prior to final judgment.

It is a general rule that an appeal should not be permitted in criminal causes until a final verdict adverse to defendant has been rendered, but under this section, courts have discretion to permit an appeal before judgment for the determination of questions of law. State v. Blondin, 128 Vt. 613, 270 A.2d 165, 1970 Vt. LEXIS 286 (1970).

Order assessing against defendant certain charges and expenses allegedly brought about by necessity of a mistrial was clearly interlocutory and, there having been no certification by the trial court, Supreme Court lacked jurisdiction to hear the appeal. Cote v. White, 127 Vt. 210, 243 A.2d 797, 1968 Vt. LEXIS 205 (1968).

The trial court’s failure to rule on defendant’s motion to appeal before judgment within 30-day period did not require rejection of interlocutory appeal, where delay resulted from plaintiff’s request for hearing on motion and trial court was unable to conduct a hearing within a 30-day period. Wilbur v. U.V.M. & S.A.C., 127 Vt. 283, 247 A.2d 897, 1968 Vt. LEXIS 224 (1968).

This section requires a discretionary ruling by the court below to enable the Supreme Court to review an interlocutory order. Town of Putney v. Town of Brookline, 126 Vt. 194, 225 A.2d 388, 1967 Vt. LEXIS 166 (1967).

Where party appealed a probate court order to county court and upon affirmance there appealed to the Supreme Court, the jurisdictional defect present where the order was not final was fatal to the appeal and could not be overlooked, nor cured by waiver, concession or agreement. In re Estate Pierce, 125 Vt. 340, 215 A.2d 505, 1965 Vt. LEXIS 251 (1965).

Under the provisions of this section appeals before final judgment can only be taken by permission of the court whose order is sought to be reviewed, and where no permission was obtained there is no appellate jurisdiction. Woodard v. Porter Hospital, Inc., 125 Vt. 264, 214 A.2d 67, 1965 Vt. LEXIS 236 (1965).

A municipal court has no jurisdiction of a prosecution after nolle prosequi has been entered and cannot thereafter certify such case for appeal before final judgment pursuant to this section. State v. Robinson, 124 Vt. 225, 204 A.2d 163, 1964 Vt. LEXIS 91 (1964).

Appeals before final judgment can only be taken by permission of the court whose order is sought to be reviewed, and without such permission there is no appellate jurisdiction. Lyons v. Ross, 124 Vt. 86, 196 A.2d 576, 1963 Vt. LEXIS 36 (1963); State v. Benjamin, 124 Vt. 20, 196 A.2d 507, 1963 Vt. LEXIS 23 (1963); Poulin v. Town of Danville, 127 Vt. 421, 250 A.2d 842, 1969 Vt. LEXIS 249 (1969).

The Supreme Court is without jurisdiction to hear an appeal until final judgment has been entered, unless permission under this section has been asked and given. Roy v. Roy, 123 Vt. 92, 182 A.2d 337, 1962 Vt. LEXIS 198 (1962).

Appellate review of an issue under the authority of this section cannot be granted in the absence of an order or record of a ruling permitting review. American Oil Co. v. State Highway Board, 122 Vt. 496, 177 A.2d 358, 1962 Vt. LEXIS 127 (1962).

Appellate review in the Supreme Court cannot be granted until final judgment has been entered in trial court, unless permission to review is first obtained by tribunal whose action is sought to be reviewed. Murphy Motor Sales v. First National Bank, 121 Vt. 404, 159 A.2d 94, 1960 Vt. LEXIS 137 (1960).

This section requires a discretionary ruling by court from which appeal is taken to enable a review of any order prior to final judgment. Brown v. Brown, 121 Vt. 283, 155 A.2d 748, 1959 Vt. LEXIS 120 (1959).

Disposition of a demurrer is not a final order under this section. Brown v. Brown, 121 Vt. 283, 155 A.2d 748, 1959 Vt. LEXIS 120 (1959).

Procedure.

Statute regarding passing causes before final judgment does not require the Vermont Supreme Court to decide interlocutory appeals. State v. Haynes, 2019 VT 44, 210 Vt. 417, 215 A.3d 1094, 2019 Vt. LEXIS 86 (2019).

This section does not require as prerequisites to an appeal that a hearing be held on the drafting of questions of law and that appellee receive notice of the questions proposed for review. Wilbur v. Univ. of Vermont, 129 Vt. 33, 270 A.2d 889, 1970 Vt. LEXIS 198 (1970).

That the facts underlying some of the questions presented on review of refusal to dismiss complaint were put in issue by defendant’s answer did not prevent review; in reviewing the order refusing dismissal, the facts alleged and exhibited with the complaint are taken as true, and likewise, the answers to the certified questions are to be given in the context of the facts stated in the complaint. Wilbur v. Univ. of Vermont, 129 Vt. 33, 270 A.2d 889, 1970 Vt. LEXIS 198 (1970).

Under this section, claimed defects appropriate for raising by pre-trial motion should be preserved by such motion, thus making them available for testing by certification, if warranted by their nature and contents. In re Provencher, 127 Vt. 558, 255 A.2d 180, 1969 Vt. LEXIS 276 (1969).

There are two steps involved in bringing questions to the Supreme Court before final judgment. The first is to obtain recorded permission from the court concerned to bring up to the Supreme Court the questions to be decided, and failure to do this means failure to confer the jurisdiction necessary to deal with the case at all at that point. The second step, required by Supreme Court Rule 2A[2], is to obtain from the certifying court a signed statement of the questions to be presented in the Supreme Court for review. Even though jurisdiction may have been conferred by step one, if the statement of questions is lacking, the Supreme Court may refuse to accept the attempted certification. State v. Mahoney, 126 Vt. 258, 227 A.2d 401, 1967 Vt. LEXIS 180 (1967).

Questions for Court.

In cases appealed to Supreme Court under this section, Supreme Court is limited to determination of questions of law. Miller Automobile Co. v. State Highway Board, 126 Vt. 389, 233 A.2d 48, 1967 Vt. LEXIS 206 (1967).

Certified questions should be carefully and precisely framed to present distinctly and clearly question or proposition of law involved, and certificate should contain proper statement of ultimate facts upon which question arises and should clearly show in what respect instruction or decision of appellate court is desired. Miller Automobile Co. v. State Highway Board, 126 Vt. 389, 233 A.2d 48, 1967 Vt. LEXIS 206 (1967).

Clear statement of certified questions is necessary inasmuch as omission cannot be supplied by reference to record. Miller Automobile Co. v. State Highway Board, 126 Vt. 389, 233 A.2d 48, 1967 Vt. LEXIS 206 (1967).

It is crucial that exact nature and scope of certified questions relied upon be made evident, and such can be accomplished only when law questions have been formulated and framed by court below and certified as required by statute, as Supreme Court, as well as parties, are then apprised or defined and precise issues to be answered and sufficiently so to enable Supreme Court to render its decision and dispose of such questions. Miller Automobile Co. v. State Highway Board, 126 Vt. 389, 233 A.2d 48, 1967 Vt. LEXIS 206 (1967).

Rules of Court.

Jurisdictional scheme for appeals in Vermont is that a final judgment is a prerequisite to appellate jurisdiction unless the narrow circumstances authorizing an interlocutory appeal are present, and Supreme Court has broad authorization to adopt rules regarding the procedure for taking appeals from orders that are not final judgments. In re J.G., 160 Vt. 250, 627 A.2d 362, 1993 Vt. LEXIS 50 (1993).

Where substantial rights were at stake, Supreme Court enlarged rule 2 to enable the appellant to procure permission to appeal before final judgment and obtained proper certification of the specific questions of law to be reviewed in Supreme Court. Poulin v. Town of Danville, 127 Vt. 421, 250 A.2d 842, 1969 Vt. LEXIS 249 (1969).

If a litigant desires a review of questions of law before final judgment, he must comply not only with the statutes authorizing the appeal but also with Supreme Court Rule 2A [2]. Davis v. Albany Discount, 125 Vt. 330, 215 A.2d 519, 1965 Vt. LEXIS 248 (1965).

Scope of appeal.

Serious constitutional questions not raised and presented in trial court would not be considered on cause passed to Supreme Court before final judgment. State v. Lane, 129 Vt. 436, 282 A.2d 796, 1971 Vt. LEXIS 286 (1971).

It is neither expedient nor good practice for an appellate court to answer certified questions concerning admission or rejection of evidence pending trial. State v. Lane, 129 Vt. 436, 282 A.2d 796, 1971 Vt. LEXIS 286 (1971).

Where the true facts underlying questions certified prior to final judgment had not all been judicially determined below, Supreme Court could not make a definitive response to the certified questions and would dismiss the appeal. State v. Lane, 129 Vt. 436, 282 A.2d 796, 1971 Vt. LEXIS 286 (1971).

Supreme Court is limited to the question certified, and will not consider such other questions as might be properly considered at some other point in the case. Central Vt. Medical Ctr. v. Town of Plainfield, 128 Vt. 557, 268 A.2d 788, 1970 Vt. LEXIS 272 (1970).

Contention that accused was denied a speedy trial in prior case wherein State had charged accused with manslaughter and had entered a nolle prosequi was improperly urged, and would not be considered, on appeal from denial of motion to quash information filed by State in subsequent case, in which State charged accused with manslaughter and four other offenses; and opinion on appeal in prior case disposed of the questions in that case. State v. Dopp, 127 Vt. 567, 255 A.2d 186, 1969 Vt. LEXIS 278 (1969).

Supreme Court was confined to the record on interlocutory appeal from denial of motion to quash information, and would not consider facts and evidence outside the record or issues for which no subordinate facts were found below. State v. Dopp, 127 Vt. 567, 255 A.2d 186, 1969 Vt. LEXIS 278 (1969).

Where lower court did not certify issues to be settled on appeal before final judgment, there were no questions before the Supreme Court for review. Davis v. Albany Discount, 125 Vt. 330, 215 A.2d 519, 1965 Vt. LEXIS 248 (1965).

Jurisdiction of the Supreme Court with respect to appeals before final judgment under this section is limited to the questions certified and aspects of the litigation which are not certified to the Supreme Court remain in the court of origin. Avery v. Bender, 124 Vt. 309, 204 A.2d 314, 1964 Vt. LEXIS 105 (1964).

The doctrines of revivor and judgment nunc pro tunc are not applicable to an appeal before final judgment where the main cause remains in the court of origin. Avery v. Bender, 124 Vt. 309, 204 A.2d 314, 1964 Vt. LEXIS 105 (1964).

A party is required to present all his claims arising out of his cause of action, and having elected not to raise an issue forecloses himself in that connection. Lash Furniture Co. of Barre, Inc. v. Norton, 124 Vt. 58, 196 A.2d 506, 1963 Vt. LEXIS 30 (1963).

The Supreme Court will not consider questions which are not raised by the substance of the proceedings below. Powers v. State Highway Board, 123 Vt. 1, 178 A.2d 390, 1962 Vt. LEXIS 184 (1962).

Supreme Court’s power to correct lower tribunals extends no further than to keep inferior jurisdictions within the limits of their jurisdiction and to see that they exercise it with regularity. In re Heath, 128 Vt. 519, 266 A.2d 812, 1970 Vt. LEXIS 265 (1970).

Sufficiency of showing on appeal.

In absence of affirmative showing to the contrary. Supreme Court was required to conclude that motion to quash information on the ground of denial of speedy trial was properly denied. State v. Dopp, 127 Vt. 567, 255 A.2d 186, 1969 Vt. LEXIS 278 (1969).

Tax matters.

The question of whether inheritance taxes were assessable on value of legacies to remaindermen as of one year after testator’s death, without regard to any subsequent invasion of the principal reducing the remainder over, or whether the remaindermen’s tax should be based on amount finally distributed, can be certified to the Supreme Court, prior to probate court’s judgment, under authority of this section. In re Estate Pierce, 125 Vt. 340, 215 A.2d 505, 1965 Vt. LEXIS 251 (1965).

Cited.

Cited in In re Pyramid Co., 141 Vt. 294, 449 A.2d 915, 1982 Vt. LEXIS 543 (1982); State v. Jacobs, 144 Vt. 70, 472 A.2d 1247, 1984 Vt. LEXIS 416 (1984); Hospitality Inns v. South Burlington R.I., Inc., 149 Vt. 653, 547 A.2d 1355, 1988 Vt. LEXIS 90 (1988); Bloomberg v. Edlund Co., 151 Vt. 559, 563 A.2d 995, 1989 Vt. LEXIS 106 (1989).

§ 2387. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 2387. Former § 2387, relating to stay of execution in civil actions, was derived from 1959, No. 261 , § 51. This section is now covered by V.R.C.P. 62.

§ 2388. Repealed. 1973, No. 118, § 25, eff. Oct. 1, 1973.

History

Former § 2388. Former § 2388, relating to criminal actions and stay of execution, was derived from 1959, No. 261 , § 52.

§§ 2389, 2390. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 2389, 2390. Former §§ 2389, 2390, relating to record and transcript on appeal, were derived from 1959, No. 261 , §§ 53, 54. These sections are now covered by V.R.A.P. 10, 11.

Chapter 103. Passing Causes to Supreme Court

§ 2421. Repealed. 1959, No. 261, § 68.

History

Former § 2421. Former § 2421 related to what questions may pass and was derived from V.S. 1947, § 2117; P.L. § 2065; 1933, No. 157 , § 1905; G.L. § 2255; P.S. § 1978; V.S. § 1623; R.L. § 1385; G.S. 30, § 56; R.S. 25, § 36; 1826, No. 2 , § 1; 1824, p. 22; R. 1797, p. 107, § 68.

§ 2422. Appeal by State.

In a suit or prosecution in the name of the State, tried in the Superior Court, the determination of which may affect the title to the property or right of property of the State or a right or franchise of the State or of the public, an appeal may be taken by the State from the opinion of the court on questions of law arising on the trial, and the cause shall pass to the Supreme Court for determination, as in civil causes.

HISTORY: Amended 1959, No. 261 , § 57; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2118. P.L. § 2066. G.L. § 2256. P.S. § 1979. V.S. § 1624. R.L. § 1386. 1878, No. 18 .

Amendments

—1973 (Adj. Sess.). Reference to “county court” was changed to “superior court”.

—1959. Changed provision relating to exceptions to appeal.

§§ 2423-2428. Repealed. 1959, No. 261, § 68.

History

Former §§ 2423-2428. Former §§ 2423-2428 related to passing causes to Supreme Court.

Former § 2423 was derived from V.S. 1947, § 2119; P.L. § 2067; G.L. § 2257; P.S. § 1980; V.S. § 1625; 1882, No. 90 ; R.L. § 1387; 1872, No. 38 .

Former § 2424 was derived from 1949, No. 57 ; V.S. 1947, § 2120; 1945, No. 29 , § 20; P.L. § 2068; 1933, No. 157 , § 1908; G.L. § 2258; 1915, No. 90 , § 12; P.S. § 1981; 1906, No. 70 , § 1; V.S. § 1626; R.L. § 1388; G.S. 30, § 57; R.S. 25, § 37; R. 1797, p. 107, § 68.

Former § 2425 was derived from V.S. 1947, § 2121; P.L. § 2069; G.L. § 2259; P.S. § 1982; V.S. § 1627; 1888, No. 56 .

Former § 2426 was derived from 1949, No. 58 , § 1; V.S. 1947, § 2122; P.L. § 2070; G.L. § 2260; P.S. § 1983; V.S. § 1628; R.L. § 1389; G.S. 30, § 58; 1861, No. 22 .

Former § 2427 was derived from 1949, No. 58 , § 2; V.S. 1947, § 2123; P.L. § 2071; G.L. § 2261; 1912, No. 93 ; P.S. § 1984; 1906, No. 63 , § 32; 1902, No. 35 , § 1.

Former § 2428 was derived from V.S. 1947, § 2124; P.L. § 2072; G.L. § 2262; P.S. § 1985; 1900, No. 35 , § 1; V.S. § 1629; R.L. § 1390; 1876, No. 111 .

§ 2429. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 2429. Former § 2429 related to questions of variance and was derived from 1959, No. 261 , § 58. This section is now covered by V.R.C.P. 15(b), 61.

§ 2430. Repealed. 1959, No. 261, § 68.

History

Former § 2430. Former § 2430 related to transfer of files and was derived from V.S. 1947, § 2126; P.L. § 2074; G.L. § 2264; P.S. § 1987; V.S. § 1631; R.L. § 1392; G.S. 30, § 62; R.S. 25, § 40.

§ 2431. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 2431. Former § 2431, relating to judgment on affirmance, was derived from 1959, No. 261 , § 63. This section is now covered by V.R.A.P. 37.

§ 2432. Passing causes to Supreme Court; recognizance in ejectment cases.

In actions brought under the provisions of sections 4851-4853 of this title, within three business days after judgment, the appealing party shall give security to the other party by way of recognizance or bond approved by the Court to pay the costs as the other party shall finally recover against him or her. If the appealing party is the defendant, he or she shall also give the security for rents then due and intervening rent. If final judgment is for the plaintiff, the costs, damages, and rents may be recovered by an action upon the recognizance or an action on contract founded on the judgment.

HISTORY: Amended 1959, No. 261 , § 64; 1971, No. 185 (Adj. Sess.), §§ 58, 237, eff. March 29, 1972; 2017, No. 11 , § 15.

History

Source.

V.S. 1947, §§ 1465, 1466. P.L. §§ 1431, 1432. 1933, No. 32 , §§ 29, 30. G.L. § 1647. 1917, No. 75 . 1915, No. 91 , § 16.

Amendments

—2017. Inserted “business” following “within three” and “or her” following “him” in the first sentence; inserted “or she” following “he” and deleted “as above provided” preceding “for rents” in the second sentence.

—1971 (Adj. Sess.). Section 58 amended section by omitting former subsec. (a), designating former subsec. (b) as the new text and rephrased that former subsec.

Section 237 repealed former subsec. (a).

—1959. Subsec. (a): Changed provision relating to exceptions to appeal, and deleted provision relating to powers and duties of judge of municipal court.

CROSS REFERENCES

Rules of appellate procedure, see V.R.A.P. 1 et seq.

ANNOTATIONS

Ejectment.

Exception as to cases not exceeding $20 is applicable only where some money claim is basis of action, and not to actions of so-called justice ejectment where possession of premises is primarily sought and rent is recovered only as an incident. Ackerman v. French, 90 Vt. 324, 98 A. 921, 1916 Vt. LEXIS 280 (1916).

§ 2433. Repealed. 1959, No. 261, § 68.

History

Former § 2433. Former § 2433, relating to appeals from various courts, was derived from 1949, No. 58 , § 3; V.S. 1947, § 2128; 1947, No. 202 , § 2162; 1941, No. 34 , § 1.

Chapter 105. Writs of Error

§§ 2491-2496. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 2491-2496. Former §§ 2491-2496 related to writs of error. These sections are now covered by V.R.A.P. 1.

Former § 2491 was derived from V.S. 1947, § 2129; P.L. § 2077; G.L. § 2267; P.S. § 1990; V.S. § 1634; R.L. § 1395; G.S. 42, § 1; R.S. 37, § 1; R. 1797, p. 77, § 8.

Former § 2492 was derived from V.S. 1947, § 2130; P.L. § 2078; G.L. § 2268; P.S. § 1991; V.S. § 1635; R.L. § 1396; G.S. 42, § 2; R.S. 37, § 2; R. 1797, p. 77, § 8.

Former § 2493 was derived from V.S. 1947, § 2131; P.L. § 2079; G.L. § 2269; P.S. § 1992; V.S. 1936; R.L. § 1397; G.S. 42, § 3; R.S. 37, § 3; 1809, p. 40; R. 1797, p. 77, § 8.

Former § 2494 was derived from V.S. 1947, § 2132; P.L. § 2080; G.L. § 2270; P.S. § 1993; V.S. § 1637; R.L. § 1398; G.S. 42, § 4; R.S. 37, § 4; R. 1797, p. 78, § 9.

Former § 2495 was derived from V.S. 1947, § 2133; P.L. § 2081; G.L. § 2271; P.S. § 1994; V.S. § 1638; R.L. § 1399; G.S. 42, § 5; R.S. 37, § 5; R. 1797, p. 78, § 10.

Former § 2496 was derived from V.S. 1947, § 2134; P.L. § 2082; G.L. § 2272; P.S. § 1995; V.S. § 1639; R.L. § 1400; G.S. 42, § 13; R.S. 37, § 11; 1809, p. 41.

§ 2497. Limitation of time for proceedings in certiorari.

Proceedings in certiorari shall be commenced within one year after the rendition of the judgment or order to review which proceedings are commenced. If a person entitled to bring proceedings is, at the time the judgment or order is rendered, a minor, or a person who lacks capacity to protect his or her interests due to a mental condition or psychiatric disability, or imprisoned, he or she may bring them within one year after the disability is removed.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 59, eff. March 29, 1972; 2013, No. 96 (Adj. Sess.), § 47.

History

Source.

V.S. 1947, § 2135. P.L. § 2083. G.L. § 2273. P.S. § 1996. V.S. § 1640. R.L. § 1401. 1878, No. 27 . G.S. 42, § 14. R.S. 37, §§ 12, 13. R. 1797, p. 598, § 11. 1794, p. 75.

Amendments

—2013 (Adj. Sess.). Deleted “such” twice following “review which” and “to bring”, substituted “the” for “such” following “at the time”, substituted “a person who lacks capacity to protect his or her interests due to a mental condition or psychiatric disability,” for “insane”, inserted “or she” following “he”, and made minor stylistic changes.

—1971 (Adj. Sess.). Rephrased and omitted references to writ of error.

CROSS REFERENCES

Rules of appellate procedure, see V.R.A.P. 1 et seq.

ANNOTATIONS

Certiorari.

Certiorari does not lie for the correction of errors which might have been set right by appeal. Sowles v. Bailey, 69 Vt. 277, 37 A. 751, 1897 Vt. LEXIS 46 (1897).

Section confines certiorari to the reversal of final judgments or decrees. Sowles v. Bailey, 69 Vt. 277, 37 A. 751, 1897 Vt. LEXIS 46 (1897).

Disabilities.

When infant is coupled in judgment as defendant with others of full age, and error is brought by all after expiration of year from judgment rendered, but within a year from time impediment of infancy is removed, writ of error is not barred by statute of limitations, but is within purview of saving clause. State v. Harrington, 2 Tyl. 44 (Vt. July 1, 1802).

Chapter 107. Appeals from Probate Court

§ 2551. Supreme Court jurisdiction of probate proceedings in Superior Courts.

The Supreme Court shall have jurisdiction of questions of law arising in the course of the proceedings of the Superior Courts in probate matters, as in other causes.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 154 (Adj. Sess.), § 75, eff. Feb. 1, 2011.

History

Source.

V.S. 1947, § 3089. P.L. § 3004. G.L. § 3454. 1917, No. 89 . P.S. § 2972. V.S. § 2583. R.L. § 2269. G.S. 48, § 29. R.S. 44, § 27.

Revision note—

In the section heading, the reference to “county court” was changed to “superior court”.

Amendments

—2009 (Adj. Sess.) Deleted “and probate” following “superior” in the section catchline and in the section text.

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

CROSS REFERENCES

Mental health proceedings, appeals in, see 18 V.S.A. § 7112 .

ANNOTATIONS

Determination of widow’s share.

Decision of probate court in fixing amount of personal property assigned to widow, being a judicial act, which depended upon exercise of discretion of that court, though subject to reexamination on appeal by county court, could not be revised in Supreme Court. Frost v. Frost's Est., 40 Vt. 625, 1868 Vt. LEXIS 58 (1868); Phelps v. Phelps, 16 Vt. 73, 1844 Vt. LEXIS 13 (1844).

Factual issues.

Appeal from probate court order denying termination of parental rights was transferred to Superior Court; question whether existence of guardianship constituted good cause for parents’ nonsupport of minors, although framed as a question of law, necessarily required careful review of record as a whole and particular facts and circumstances of case, and was therefore beyond Supreme Court’s jurisdiction. In re J.C., 169 Vt. 139, 730 A.2d 588, 1999 Vt. LEXIS 45 (1999).

Question whether probate court adequately addressed requisite statutory criteria in determining whether termination of parental rights was in best interests of children was beyond scope of Supreme Court’s appellate review, since it would involve considering evidentiary record as a whole, which was precisely the type of fact-specific issue reserved for probate court in the first instance, and for superior court on de novo review. In re J.C., 169 Vt. 139, 730 A.2d 588, 1999 Vt. LEXIS 45 (1999).

Where factual distinctions could control resolution of issue presented from probate proceeding, issue is not appropriate for review by Supreme Court. In re Estate of Johnson, 158 Vt. 557, 613 A.2d 703, 1992 Vt. LEXIS 88 (1992).

Where resolution of issues presented on appeal from final probate decree, which involved admission of character evidence, waiver of dead man’s statute, and rebuttable presumption of revocation of lost will, required consideration of particular procedural and substantive facts of case, they were more appropriately addressed in Superior Court than in Supreme Court. In re Estate of Johnson, 158 Vt. 557, 613 A.2d 703, 1992 Vt. LEXIS 88 (1992).

Questions of law.

On direct appeal from final probate decree, Supreme Court will review only “pure” questions of law, resolution of which does not depend upon factual distinctions and does not require review of record. In re Estate of Johnson, 158 Vt. 557, 613 A.2d 703, 1992 Vt. LEXIS 88 (1992).

Supreme Court has jurisdiction under this section to consider questions of law on direct appeal from probate court. In re Estate of Davis, 125 Vt. 446, 218 A.2d 390, 1966 Vt. LEXIS 206 (1966).

Review on exceptions.

If exceptions showed that county court decided case upon ground that court had no power to correct decree of distribution, or if appeal were from decree of distribution, then a question of law would be presented which Supreme Court could revise. Hutchinson v. Hutchinson's Est., 38 Vt. 700, 1866 Vt. LEXIS 52 (1866).

When heirs took exceptions to decisions of county court in allowing an administrator’s account and exceptions were all overruled by Supreme Court, Supreme Court would not proceed to examine questions decided against administrator by county court, in reference to which no exceptions were taken, as they would do if any of exceptions taken by heirs had been sustained. Clark v. Heirs of Clark, 21 Vt. 490, 1849 Vt. LEXIS 66 (1849).

Scope of review generally.

Where there was no appeal from decree of probate court by which estate of intestate was assigned to his widow or children, decree became binding to same extent as any other judgment, and could not be impeached collaterally. Boyden v. Ward, 38 Vt. 628, 1866 Vt. LEXIS 42 (1866).

In case of appeals from probate court which come into Supreme Court on exceptions to decision of county court, Supreme Court sits only as a court of error to revise decisions of county court upon question of law. Clark v. Heirs of Clark, 21 Vt. 490, 1849 Vt. LEXIS 66 (1849).

Cited.

Cited in In re Trust Estate of Flynn, 158 Vt. 268, 609 A.2d 984, 1992 Vt. LEXIS 55 (1992).

§ 2552. Repealed. 1959, No. 261, § 68.

History

Former § 2552. Former § 2552, relating to passing causes to Supreme Court, was derived from V.S. 1947, § 3086; 1947, No. 202 , § 3109; P.L. § 3001; G.L. § 3451; 1917, No. 89 . This section is covered by § 2386 of this title.

§ 2553. Appeals to Civil Division; appellate jurisdiction.

The Civil Division of the Superior Court shall have appellate jurisdiction of matters originally within the jurisdiction of the Probate Division of the Superior Court, except as herein otherwise provided.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2011, No. 1 , § 4, eff. Feb. 2, 2011.

History

Source.

V.S. 1947, § 3087. P.L. § 3002. G.L. § 3452. 1917, No. 89 . P.S. § 2971. V.S. § 2582. R.L. § 2268. G.S. 48, § 28. R.S. 44, § 26.

Revision note—

In the section heading, the reference to “county court” was changed to “superior court”.

Amendments

—2011. Substituted “civil division” for “superior court” in the section catchline and substituted “civil division of the superior court” for “superior court” and “probate division of the superior court” for “probate court”.

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

ANNOTATIONS

County court as higher court of probate.

On appeal county court sat as higher court of probate with co-extensive jurisdiction and it was as necessary to make an affirmative showing of jurisdiction as in the probate court from which appeal was taken. Roddy v. Fitzgerald Est., 113 Vt. 472, 35 A.2d 668, 1944 Vt. LEXIS 105 (1944).

County court sits in probate appeals as a higher probate court with power to try identical matter involved in subject of appeal and not to revise errors of probate court merely. In re Estate of Dilligan, 110 Vt. 294, 6 A.2d 1 (1939) same case 111 Vt. 227, 13 A.2d 282; Everett v. Wing, 103 Vt. 488, 156 A. 393, 1931 Vt. LEXIS 197 (1931), cert. denied, 284 U.S. 690, 52 S. Ct. 266, 76 L. Ed. 582, 1932 U.S. LEXIS 968 (1932); Parkhurst v. Healy's Est., 97 Vt. 295, 122 A. 895, 1923 Vt. LEXIS 242 (1923); Clark v. Heirs of Clark, 21 Vt. 490, 1849 Vt. LEXIS 66 (1849); Adams v. Adams, 21 Vt. 162, 1849 Vt. LEXIS 12 (1849).

An appeal from allowance by probate court of administrator’s account carried up whole matter to county court; and either party had right to present any claims, proper to have been acted upon by probate court, whether they were in fact presented there, or not. Clark v. Heirs of Clark, 21 Vt. 490, 1849 Vt. LEXIS 66 (1849).

Effect of judgment of county court.

Judgment of county court was judgment of that court and record remained in that court; its certificate to probate court was merely for information of that court. Buffum v. Haynes' Est., 68 Vt. 534, 35 A. 474, 1896 Vt. LEXIS 112 (1896).

Probate court could not reverse or modify a judgment of county court rendered in an appeal from probate court. Buffum v. Haynes' Est., 68 Vt. 534, 35 A. 474, 1896 Vt. LEXIS 112 (1896).

Final adoption decrees.

General appellate jurisdiction of county court in probate matters provided by this section applies to final adoption decrees of probate court. Whitton v. Scott, 120 Vt. 452, 144 A.2d 706, 1958 Vt. LEXIS 124 (1958).

In appeal from adoption decree to county court, county court’s limiting admission to evidence as it existed at time of probate decree, rather than at time of trial, is error. Whitton v. Scott, 120 Vt. 452, 144 A.2d 706, 1958 Vt. LEXIS 124 (1958).

Special questions should be submitted on issues as framed by trial court, and case should not be submitted on general verdicts either affirming or overruling decree. Whitton v. Scott, 120 Vt. 452, 144 A.2d 706, 1958 Vt. LEXIS 124 (1958).

This section and § 2555 of this title control and govern final adoption decrees of the probate court under the adoption statutes and county court has jurisdiction of appeal from such final decrees. In re Whittemore, 118 Vt. 282, 108 A.2d 406, 1954 Vt. LEXIS 118 (1954).

Transfer from Supreme Court.

Where resolution of issues presented on appeal from final probate decree were more appropriately addressed in Superior Court than in Supreme Court, but time for filing appeal to Superior Court had passed, cause would be transferred to Superior Court pursuant to Supreme Court’s supervisory authority. In re Estate of Johnson, 158 Vt. 557, 613 A.2d 703, 1992 Vt. LEXIS 88 (1992).

Cited.

Cited in In re Trust Estate of Flynn, 158 Vt. 268, 609 A.2d 984, 1992 Vt. LEXIS 55 (1992); In re J.C., 169 Vt. 139, 730 A.2d 588, 1999 Vt. LEXIS 45 (1999).

§ 2554. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 2554. Former § 2554, relating to combined law and equity jurisdiction, was derived from V.S. 1947, § 3088; P.L. § 3003; G.L. § 3453; 1915, No. 86 .

§ 2555. Appeal to Civil Division.

Except as otherwise provided, a person interested in an order, sentence, decree, or denial of a Probate Division of the Superior Court, who considers himself or herself injured thereby, may appeal therefrom to the Civil Division of the Superior Court.

HISTORY: Amended 1959, No. 261 , § 59; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2011, No. 1 , § 5, eff. Feb. 2, 2011.

History

Source.

V.S. 1947, § 3090. P.L. § 3005. G.L. § 3455. P.S. § 2973. V.S. § 2584. 1884, No. 110 , § 10. R.L. § 2270. G.S. 48, § 30. R.S. 44, § 28. 1821, p. 33. R. 1797, p. 247, § 78. R. 1787, p. 56.

Revision note—

In the section heading, reference to “county court” was changed to “superior court”

Amendments

—2011. Substituted “civil division” for “superior court” in the section catchline and inserted “division of the superior” following “probate”; “or herself” preceding “injured” and “civil division of the” preceding “superior court”.

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1959. Deleted provision relating to application for appeal.

CROSS REFERENCES

Allowance of appeal in case of fraud, accident or mistake, see §§ 2357, 2358 of this title.

Guardians, appeals from appointment, see 14 V.S.A. § 2685 .

ANNOTATIONS

Administrator.

Administrator de bonis non who had been directed by probate court to pay a sum of money to a certain person was “a person interested” in a decree appointing an administrator of the estate of the person to whom said payment was directed to be made but whom the administrator de bonis non claimed still alive. In re Clark's Est., 79 Vt. 62, 64 A. 231, 1906 Vt. LEXIS 102 (1906).

Appeals procedure.

Appeal to stated term of county court, rather than simply to county court, was fatally defective and its allowance conferred no jurisdiction on county court. In re Brown, 118 Vt. 323, 109 A.2d 271, 1954 Vt. LEXIS 125 (1954); In re Moffit Est., 116 Vt. 286, 75 A.2d 698, 1950 Vt. LEXIS 148 (1950); In re Walker Est., 112 Vt. 148, 22 A.2d 183, 1941 Vt. LEXIS 143 (1941).

Appeal from decree of a probate court taken “agreeably to the statute in such case made and provided” was not fatally defective in not stating that it was taken to county court; it was better practice, however, to state court to which appeal was taken. Holden v. Cook, 115 Vt. 271, 56 A.2d 474, 1948 Vt. LEXIS 65 (1948).

Appointment of administratory.

Widow could appeal appointment of administrator. Hilliard v. McDaniels's Adm'r, 48 Vt. 122, 1875 Vt. LEXIS 88 (1875).

Appointment of executor.

Mandamus would not lie to compel court to allow appeal from issue of letters testamentary. Sabine v. Rounds, 50 Vt. 74, 1877 Vt. LEXIS 63 (1877).

Assignee of beneficiary of trust.

Assignee of beneficiary of spendthrift trust which prohibited alienation did not have sufficient interest to maintain an appeal. In re Manley Est., 112 Vt. 314, 24 A.2d 357, 1942 Vt. LEXIS 121 (1942).

Claimant to land set out as dower.

When land was assigned by probate court as dower, one who was not interested in estate of deceased, but claimed that he was seized and possessed of same land by virtue of a title independent of and adverse to that of deceased, could not be allowed to appeal from decision of probate court setting out the dower. Hemmenway v. Cory, 16 Vt. 225, 1844 Vt. LEXIS 55 (1844).

Construction.

Statutes giving and regulating right of appeal are remedial and should receive a liberal construction. In re Walker Est., 112 Vt. 148, 22 A.2d 183, 1941 Vt. LEXIS 143 (1941).

A probate court being one of special and limited jurisdiction deriving all its authority from statute, an appeal will lie only through a statute. In re Walker Est., 112 Vt. 148, 22 A.2d 183 (1941); Harlacker v. Clark, 116 Vt. 107, 70 A.2d 572 (1949), same case 115 Vt. 261, 56 A.2d 468.

Construction with other laws.

In general, the incidents attending appeals under this section are the same as those attending appeals taken under section 2556 of this title. Roddy v. Fitzgerald Est., 113 Vt. 472, 35 A.2d 668, 1944 Vt. LEXIS 105 (1944).

Executor.

An executor cannot, merely by virtue of his office, qualify as a “person interested” for the purpose of appealing under this section. In re Estate of Gaskell, 123 Vt. 57, 181 A.2d 67, 1962 Vt. LEXIS 191 (1962).

Executor had no right of appeal from decree and judgment of probate court allowing widow of deceased extension of time for waiving pecuniary provision made for her in her husband’s will. Flory v. Flory's Est., 98 Vt. 251, 127 A. 369, 1925 Vt. LEXIS 128 (1925).

Executor had no right to appeal from decree of probate court distributing testator’s estate, for in such case executor had no legal right that could be enlarged or diminished by decree. In re Vincent's Est., 84 Vt. 89, 78 A. 714, 1911 Vt. LEXIS 247 (1911); Simonds v. Simonds' Est., 96 Vt. 110, 117 A. 103, 1922 Vt. LEXIS 129 (1922).

Where order was made that certain choses in action and money be added to inventory, appeal of executor was dismissed, since order was not an adjudication of rights of executor as between himself and estate. Leach v. Leach’s Ex’r, 50 Vt. 618 (1878), same case 51 Vt. 440.

Guardianship.

Only party proceeded against could appeal from appointment of guardian, pursuant to 14 V.S.A. § 2685 . In re Varnum, 70 Vt. 147, 40 A. 43, 1897 Vt. LEXIS 18 (1897).

Friend or relative in case where no guardian is appointed, and guardian in case were decision is that ward is no longer a proper subject of guardianship, are not entitled to an appeal. Nimblet v. Chaffee, 24 Vt. 628, 1852 Vt. LEXIS 93 (1852).

—Generally.

An interested party may only take an appeal from the probate court if the order appealed from is final as to the subject matter before the court. In re Estate of Seward, 139 Vt. 623, 433 A.2d 274, 1981 Vt. LEXIS 534 (1981).

Statute only permitted appeal from final order or decree of probate court. Wilcox v. Wilcox, 63 Vt. 137, 21 A. 423, 1890 Vt. LEXIS 68 (1890).

To entitle party to appeal, order or decree appealed from must have been one which made a final disposition of subject matter in the probate court. Adams v. Adams, 21 Vt. 162, 1849 Vt. LEXIS 12 (1849).

Order accepting report of commissioners.

Appeal lay from an order accepting report of commissioners appointed to set out homestead and dower. Brown v. Brown, 66 Vt. 81, 28 A. 666, 1894 Vt. LEXIS 69 (1894).

Refusal to receive what purported to be a report of commissioners was not such a final decree that an appeal could be taken therefrom to county court. Hodges v. Thacher, 23 Vt. 455, 1851 Vt. LEXIS 50 (1851).

Order admitting will to probate.

An order admitting a will to probate is generally considered to be an appealable final order. In re Estate of Seward, 139 Vt. 623, 433 A.2d 274, 1981 Vt. LEXIS 534 (1981).

Order to account.

Order directing petitionee to account as guardian of petitioner was not a final order and no appeal could be taken from it. Wilcox v. Wilcox, 63 Vt. 137, 21 A. 423, 1890 Vt. LEXIS 68 (1890).

Order to give bond.

Order to executor to give bond where not required by will was not appealable. Felton v. Lowles, 57 Vt. 382 (1885), same case 60 Vt. 224, 14 Atl. 697.

Removal of guardian.

Guardian could appeal from removal order. State v. McKown, 21 Vt. 503, 1849 Vt. LEXIS 68 (1849).

Renewal of commission.

No appeal lay from order of a probate court renewing a commission on an estate. Fillmore v. Morgan, 93 Vt. 491, 108 A. 840, 1919 Vt. LEXIS 196 (1919).

Setting out homestead.

An appeal lay from decision of probate court setting out a homestead to widow. True v. Morrill, 28 Vt. 672, 1856 Vt. LEXIS 98 (1856).

Time limitation.

Appeal was erroneously dismissed as untimely where it was within time set by rule; and by failing to hear the case and make factual findings, county court, which had jurisdiction coextensive with that of probate court, from which appeal came, denied appellants the benefit of its jurisdiction over probate matters. In re Estate of Wells, 133 Vt. 159, 333 A.2d 101, 1975 Vt. LEXIS 355 (1975).

Appeal from decision of probate court must be taken within time limited by statute in order to be effective. Harlacker v. Clark, 116 Vt. 107, 70 A.2d 572 (1949), same case 115 Vt. 261, 56 A.2d 468.

Twenty days ran from date of decision of probate court, and not from the date of entry of such decision. In re Estate of Moody, 115 Vt. 1, 49 A.2d 562, 1946 Vt. LEXIS 71 (1946), cert. denied, 331 U.S. 814, 67 S. Ct. 1201, 91 L. Ed. 1833, 1947 U.S. LEXIS 2388 (1947).

Where on last day allowed for filing appeal, after usual business hours were over and office was closed, party left his appeal in actual possession of proper officer to be filed, so that such officer had actual knowledge that it was so left and could then file it, and officer, on following morning, lodged it in proper office, and entered it as filed on day he actually received it, appeal was regular and within time. Robinson v. Executors of Robinson, 32 Vt. 738, 1860 Vt. LEXIS 33 (1860).

Where appeal was prayed for and bond deposited within the twenty days, applicant did not lose his right by court’s taking time for advice, or otherwise neglecting to allow appeal until twenty days had expired. Cummings v. Hugh, 2 Vt. 578, 1830 Vt. LEXIS 35 (1830).

—Generally.

Beneficiaries of testator’s will were “persons interested” in probate court order restricting fees recoverable by executor and his attorney and distributing excess assets to beneficiaries and were entitled to be parties to executor’s and his attorney’s appeal de novo to the county court. In re Estate of Bove, 127 Vt. 25, 238 A.2d 789, 1968 Vt. LEXIS 168 (1968).

To be entitled to an appeal it was not necessary that appellant should previously have appeared in probate court in proceedings appealed from nor in any other manner. In re Will of Pynchon, 115 Vt. 57, 50 A.2d 760 (1946), same case 115 Vt. 217, 55 A.2d 519.

Interest required to support appeal must be a legal interest which may, by such order or decree, be either enlarged or diminished. In re Manley Est., 112 Vt. 314, 24 A.2d 357, 1942 Vt. LEXIS 121 (1942); Peck's Adm'r v. Peck's Adm'r, 91 Vt. 91, 99 A. 635, 1917 Vt. LEXIS 212 (1917); In re Clark's Est., 79 Vt. 62, 64 A. 231, 1906 Vt. LEXIS 102 (1906).

Power of person to cause delay and difficulty to another when latter sought to obtain property which he claimed was not, in itself, in circumstances of case, an interest sufficient to support an appeal. In re Manley Est., 112 Vt. 314, 24 A.2d 357, 1942 Vt. LEXIS 121 (1942).

Transfer from Supreme Court.

Where resolution of issues presented on appeal from final probate decree were more appropriately addressed in Superior Court than in Supreme Court, but time for filing appeal to Superior Court had passed, cause would be transferred to Superior Court pursuant to Supreme Court’s supervisory authority. In re Estate of Johnson, 158 Vt. 557, 613 A.2d 703, 1992 Vt. LEXIS 88 (1992).

Unappealed decrees.

Probate court had jurisdiction to make decree distributing estate of deceased person, and such decree, unappealed from, was binding upon all parties and became law of case, whether right or wrong, as to all questions passed upon by court when making decree, and was controlling as to such questions in future proceedings in case. Lyons v. Field, 106 Vt. 474, 175 A. 11, 1934 Vt. LEXIS 191 (1934); Leavins v. Ewins, 67 Vt. 256, 31 A. 297, 1894 Vt. LEXIS 45 (1894).

Cited.

Cited in In re Trusts u/w Proctor, 140 Vt. 6, 433 A.2d 300, 1981 Vt. LEXIS 545 (1981); In re Guardianship of L.B., 147 Vt. 82, 510 A.2d 1319, 1986 Vt. LEXIS 372 (1986); In re Trust Estate of Flynn, 158 Vt. 268, 609 A.2d 984, 1992 Vt. LEXIS 55 (1992).

§ 2556. Appeal from commissioners.

  1. In the two following cases, an executor, administrator, or creditor may appeal to the Superior Court from the decision and report of the commissioners, if notice of appeal is filed with the clerk of the Superior Court appealed to within 30 days after the return of the commissioners’ report:
    1. when the commissioners disallow a claim in whole or in part to the amount of $20.00 or more in favor of a creditor or of the estate;
    2. when the commissioners allow a claim in whole or in part, and the sum allowed and objected to amounts to $20.00 or more.
  2. In case an appeal is taken as provided in subsection (a) of this section, if a claim in favor of the estate against such claimant or a claim in favor of the claimant against such estate, has not been presented to the commissioner by reason of fraud, accident, or mistake, on trial of such appeal, and upon filing proper statement of such claim in Superior Court, recovery may be had for such claim not presented to the commissioners by reason of such fraud, accident, or mistake.

HISTORY: Amended 1959, No. 261 , § 60; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 76.

History

Revision note

—2015. In subsec. (b), substituted “as provided in subsection (a) of this section” for “as above provided” to conform to V.S.A. style.

Source.

V.S. 1947, § 3091. 1947, No. 202 , § 3114. P.L. §§ 3006, 3008. G.L. §§ 3456, 3458. P.S. §§ 2974, 2976. V.S. §§ 2585, 2587. R.L. § 2271. G.S. 53, § 19. R.S. 49, § 18. 1888, No. 78 . 1825, No. 1 , § 4. 1824, p. 20. 1821, p. 65. 1819, p. 17. R. 1797, p. 250, § 84.

Amendments

—2009 (Adj. Sess.) Subsec. (a): Inserted “superior” preceding “court appealed to” and deleted “and the register of the probate court” thereafter, and substituted “30 days” for “thirty days”.

—1973 (Adj. Sess.). Subsecs. (a) and (b): Substituted “superior” for “county” preceding “court”.

—1959. Subsec. (a): Changed provision relating to written application to notice of appeal and changed time limitation from 20 to 30 days.

ANNOTATIONS

Ad damnum.

Creditor of estate whose claim was allowed by commissioners in full but was reduced by more than twenty dollars by allowance of offsets, was not entitled to an appeal on grounds that his claim was disallowed to that amount; but he could prove his claim under administrator’s appeal, if pleadings allowed. Thorp v. Thorp’s Est., 75 Vt. 34, 52 A. 1051 (1902), same case 70 Vt. 46, 39 Atl. 245.

County court could permit plaintiff upon trial of appeal from allowance of commissioners to raise ad damnum of declaration filed in probate court, where claim presented to commissioners and that tried in county court were identical. Maughan v. Burns, 64 Vt. 316, 23 A. 583, 1892 Vt. LEXIS 43 (1892).

Where person was owner of two demands, one in favor of himself and another, and one in favor of himself and a third person, he was not entitled to an appeal if commissioners did not disallow twenty dollars on one of demands; the sums disallowed on both could not be added together to make that amount. Barlow v. Thrall, 11 Vt. 247, 1839 Vt. LEXIS 58 (1839).

Appeals procedure.

Where appellants, desiring to appeal from the “decision and report” of commissioners upon claims against a deceased person’s estate, prayed probate court to be allowed an appeal from the “order and decree” of court ordering such report to be allowed and recorded. Robinson v. Executors of Robinson, 32 Vt. 738, 1860 Vt. LEXIS 33 (1860).

Construction with other laws.

In general, incidents attending appeals under this section are same as those attending appeals taken under section 2555 of this title. Roddy v. Fitzgerald Est., 113 Vt. 472, 35 A.2d 668, 1944 Vt. LEXIS 105 (1944).

Time limitation.

Whenever the last day for appeal under this section falls on a Sunday, it cannot be excluded in computing the time allowed. Porter v. Baton, 119 Vt. 466, 129 A.2d 503, 1957 Vt. LEXIS 93 (1957).

Where report of commissioners was filed, accepted and ordered recorded, but commissioners then sent it back for correction, twenty days from filing of corrected report was allowed for taking appeal. Adarene v. Marlow's Est., 33 Vt. 558, 1861 Vt. LEXIS 2 (1861).

In construing statute which provides that appeal may be taken within twenty days after return of report to probate court, day when report is returned is to be excluded. Robinson v. Executors of Robinson, 32 Vt. 738, 1860 Vt. LEXIS 33 (1860).

§ 2557. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 2557. Former § 2557, relating to entry of appearance with clerk, was derived from V.S. 1947, § 3092; P.L. § 3007; G.L. § 3457; P.S. § 2975; V.S. § 2586; 1892, No. 28 , §§ 18, 19; 1959, No. 261 , § 61. This section is now covered by V.R.C.P. 72.

§§ 2558-2560. Repealed. 1959, No. 261, § 68.

History

Former § 2558-2560. Former §§ 2558-2560 related to filing of complaint, appeal bond and security.

Former § 2558 was derived from V.S. 1947, § 3093; P.L. § 3009; G.L. § 3459; P.S. § 2977; V.S. § 2588; R.L. § 2272; G.S. 53, § 19; R.S. 49, § 18; 1821, p. 65; R. 1797, p. 251, § 84.

Former § 2559 was derived from 1951, No. 59 , § 1; V.S. 1947, § 3094; P.L. § 3010; G.L. § 3460; P.S. § 2978; V.S. § 2589; R.L. § 2273; G.S. 48, § 31; G.S. 53, § 19; 1848, No. 25 ; R.S. 44, § 29; R.S. 49, § 18; 1821, pp. 33, 67; R. 1797, p. 247, § 78.

Former § 2560 was derived from 1951, No. 59 , § 2; V.S. 1947, § 3095; P.L. § 3011; G.L. § 3461; P.S. § 2979; V.S. § 2590; R.L. § 2274; G.S. 53, § 20; 1855, No. 30 .

§ 2561. Appeal by creditor, devisee, legatee or heir.

When an executor or administrator declines to appeal from the decision of the commissioners, a person interested in the estate as creditor, devisee, legatee, or heir may appeal from such decision as the executor or administrator might have done.

HISTORY: Amended 1959, No. 261 , § 56; 1971, No. 185 (Adj. Sess.), § 60, eff. March 29, 1972.

History

Source.

1951, No. 59 , § 3. V.S. 1947, § 3096. P.L. § 3012. G.L. § 3462. P.S. § 2980. V.S. § 2591. R.L. § 2275. G.S. 53, § 27. R.S. 49, § 25. 1821, p. 67. R. 1797, p. 250, § 84.

Amendments

—1971 (Adj. Sess.). Omitted requirement that action be instituted in name of executor or administrator.

—1959. Deleted provision relating to bond.

CROSS REFERENCES

Parties plaintiff and defendant, real party in interest, see V.R.C.P. 17(a).

ANNOTATIONS

Bond requirement.

This section requires that person appealing from decision of commissioners in lieu of estate’s representative who declines so to do must give a bond to protect estate from financial loss resulting from his failure to prosecute appeal to effect. In re Estate of Rushford, 111 Vt. 494, 18 A.2d 175, 1941 Vt. LEXIS 183 (1941).

Where bond filed on appeal by heirs from decision and report of commissioners in decedent estate was conditioned to pay all intervening damages and costs occasioned by said appeal to claimants of any of them, adverse parties to the appeal were sufficiently identified under name of claimants to comply with requirements of this section, although it would have been more proper to name them. In re Estate of Delligan, 110 Vt. 294, 6 A.2d 1 (1939), same case 111 Vt. 227, 13 A.2d 282.

Declining to appeal.

Failure to take an appeal by an administrator within time allowed was a declining to do so within meaning of this section. Riley v. Riley's Est., 114 Vt. 297, 44 A.2d 153, 1945 Vt. LEXIS 83 (1945); Administrator of Gilbert's Est. v. Administrator of Howe's Est., 47 Vt. 402, 1875 Vt. LEXIS 34 (1875); Hobart v. Herrick, 28 Vt. 627, 1856 Vt. LEXIS 87 (1856).

Persons interested in estate.

None except those belonging to some one of classes enumerated in this section had any right of appeal. Administrator of Gilbert's Est. v. Administrator of Howe's Est., 47 Vt. 402, 1875 Vt. LEXIS 34 (1875).

Fact of interest of appellant must be found by probate court and appear on face of record sent up from that court; but judgment of that court, allowing appeal, was not conclusive upon question of such interest and consequent right of appeal, but such interest could be inquired into by county court. Administrator of Gilbert's Est. v. Administrator of Howe's Est., 47 Vt. 402, 1875 Vt. LEXIS 34 (1875).

§§ 2562-2565. Repealed. 1959. No. 261, § 68.

History

Former §§ 2562-2565. Former §§ 2562-2565 related to notices, filing and form of trial.

Former § 2562 was derived from V.S. 1947, § 3097; P.L. § 3013; G.L. § 3463; P.S. § 2981; V.S. § 2592; 1892, No. 28 , § 20; R.L. § 2276; G.S. 48, § 32; G.S. 53, § 21; R.S. 44, § 30; R.S. 49, § 19; 1821, pp. 33, 65, 66; R. 1797, p. 248, § 79; R. 1797, p. 250, § 84.

Former § 2563 was derived from V.S. 1947, § 3098; 1947, No. 202 , § 3121; P.L. § 3014; G.L. § 3464; P.S. § 2982; V.S. § 2593; 1892, No. 28 , § 21.

Former § 2564 was derived from V.S. 1947, § 3099; 1947, No. 202 , § 3122; P.L. § 3015; G.L. § 3465; P.S. § 2983; V.S. § 2594; R.L. § 2278; G.S. 48, § 33; G.S. 53, § 22; R.S. 44, § 31; R.S. 49, § 20; 1821, pp. 64, 65; R. 1797, p. 250, § 84.

Former § 2565 was derived from V.S. 1947, § 3100; 1941, No. 42 ; P.L. § 3016; G.L. § 3466; 1915, No. 98 ; P.S. § 2984; V.S. § 2595; R.L. § 2279; G.S. 48, § 34; G.S. 53, § 23; R.S. 44, § 32; R.S. 49, § 21; 1821, p. 66; R. 1797, p. 250, § 84.

§ 2566. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 2566. Former § 2566, relating to commissioners in probate appeal, was derived from V.S. 1947, § 1939; P.L. § 1886; G.L. § 2075; P.S. § 1796; V.S. § 1441; R.L. § 989; G.S. 30, § 54; R.S. 25, § 30; 1825, No. 1 , § 12. This section is now covered by V.R.C.P. 53.

§ 2567. Costs on appeal.

If costs are taxed against an executor or administrator on appeal to the Supreme or Superior Court, they shall be allowed to him or her in his or her administration account.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 61, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 3101. P.L. § 3017. G.L. § 3467. P.S. § 2985. V.S. § 2596. R.L. § 2280. G.S. 48, § 35. G.S. 53, § 23. R.S. 44, § 33. R.S. 49, § 21. 1833, No. 11 . 1821, pp. 33, 36. R. 1797, p. 247, § 78. R. 1797, p. 250, § 84.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1971 (Adj. Sess.). Omitted provisions relating to taxation of costs for either or prevailing party and provided for costs on appeal.

CROSS REFERENCES

Costs, to whom allowed, see V.R.A.P. 39(a).

Judgments, allowance of costs, see V.R.C.P. 54(d).

ANNOTATIONS

Construction with other laws.

This section and 14 V.S.A. § 1064 , were sufficiently cognate to be in pari materia, since both relate to allowance of costs taxed against administrator in his administration account, and they were to be construed with reference to each other as parts of one system, and legislative intent, thus ascertained, given effect. In re Estate of Brace, 109 Vt. 360, 196 A. 742, 1938 Vt. LEXIS 142 (1938).

Costs to prevailing party.

In absence of any declaration to contrary, it was to be understood that costs in Supreme Court were awarded to prevailing party. Bliss v. Little’s Est., 64 Vt. 133, 23 A. 725 (1891), same case 63 Vt. 86, 22 Atl. 12.

Where creditor of estate appealed from decision of commissioners allowing balance against him in favor of estate, and in the county court he recovered judgment in his favor for damages and costs, execution for the costs was properly issued by county court against administrator personally, as for his own debt. O'Hear v. Skeeles, 22 Vt. 152, 1850 Vt. LEXIS 4 (1850).

General rule that party prevailing was entitled to costs was applicable to case of an appeal by executors from a decree of probate court disallowing a will. Heirs of Brigham v. Executors of Brigham, 15 Vt. 788 (1843).

Appellant recovering his claim that was earlier disallowed must recover cost. Stark's Adm'r v. Sawyer's Ex'r, 3 Vt. 372, 1831 Vt. LEXIS 22 (1831).

Costs where action without just cause.

This section was controlled by provision of 14 V.S.A. § 1064 , that such costs shall be allowed unless it appears that action or proceeding in which they were taxed was prosecuted or resisted without just cause. In re Estate of Brace, 109 Vt. 360, 196 A. 742, 1938 Vt. LEXIS 142 (1938).

Review.

Questions as to costs in county court can only be properly brought before Supreme Court by having costs taxed and question decided in lower court and certified up as part of the case. Bliss v. Little’s Est., 64 Vt. 133, 23 A. 725 (1891), same case 63 Vt. 86, 22 Atl. 12.

Supreme Court had no discretion in allowance of costs accruing in county court upon trial of an appeal from probate court. Bliss v. Little’s Est., 64 Vt. 133, 23 A. 725 (1891), same case 63 Vt. 86, 22 Atl. 12.

Where appeal was from a decree of probate court, passing to Supreme Court upon exceptions from county court, Supreme Court could make no order as to costs, except costs occurring in that court. Jones v. Knappen, 63 Vt. 391, 22 A. 630, 1891 Vt. LEXIS 120 (1891).

Right to costs.

Costs in probate appeals may be denied in discretion of court. Panton v. Noonan, 112 Vt. 138, 22 A.2d 174, 1941 Vt. LEXIS 141 (1941).

It was discretionary with court to allow or refuse costs on appeals from court of probate. Reynolds v. McGregor, 16 Vt. 191 (1844); Phelps v. Heirs of Slade, 10 Vt. 192 (1838), same case 13 Vt. 195.

§ 2568. Repealed. 1959, No. 261, § 68.

History

Former § 2568. Former § 2568 relating to appeal not entered, was derived from V.S. 1947, § 3102; P.L. § 3018; G.L. § 3468; P.S. § 2986; V.S. § 2597; R.L. § 2281; G.S. 48, § 36; G.S. 53, §§ 25, 26; R.S. 44, § 34; R.S. 49, §§ 23, 24; 1821, pp. 33, 66; R. 1797, p. 250, § 84.

§§ 2569-2571. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 2569-2571. Former §§ 2569-2571 related to commissioners in probate appeal. These sections are now covered by V.R.C.P. 41(a), 72(e); V.R.A.P. 41, 45(d).

Former § 2569 was derived from V.S. 1947, § 3103; 1945, No. 29 , § 30; P.L. § 3019; G.L. § 3469; P.S. § 2987; V.S. § 2598; R.L. § 2282; 1864, No. 65 ; 1959, No. 261 , § 62.

Former § 2570 was derived from V.S. 1947, § 3104; P.L. § 3020; G.L. §§ 1104, 3470; P.S. §§ 836, 2988; 1904, No. 30 , § 15; V.S. § 2599; R.L. § 2283; G.S. 48, § 37; G.S. 53, § 24; R.S. 44, § 35; R.S. 49, § 22; 1821, pp. 33, 66; R. 1797, p. 250, § 84.

Former § 2571 was derived from V.S. 1947, § 3105; 1947, No. 202 , § 3128; P.L. § 3021; G.L. § 3471; P.S. § 2989; 1906, No. 85 , § 1.

Chapter 109. Appeals from Justice’s Court in Civil Actions

§§ 2621-2623. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former §§ 2621-2623. Former § 2621, relating to time for appeal and court to which taken, was derived from 1959, No. 142 , § 4; 1965, No. 194 , § 10; 1971, No. 185 (Adj. Sess.), § 62.

Former § 2622, relating to appealable actions, was derived from 1971, No. 185 (Adj. Sess.), § 63.

Former § 2623, relating to nonappealable actions, was derived from V.S. 1947, § 1509; P.L. § 1473; G.L. § 1693; P.S. § 1650; V.S. § 1298; 1884, No. 122 ; R.L. § 1061; 1880, No. 23 , § 1; 1876, No. 64 ; G.S. 31, §§ 63, 70; R.S. 26, §§ 45, 51; 1821, pp. 76, 78; R. 1797, p. 414, § 4; 1794, p. 117; 1792, p. 62; 1789, p. 11; R. 1787, p. 86.

§§ 2624-2627. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 2624-2627. Former §§ 2624-2627 related to appeals from justice’s court, recognizance, docketing, appearance and suspension of judgment. These sections are now covered by V.R.A.P. 73(a)-(d).

Former § 2624 was derived from V.S. 1947, § 1510; P.L. § 1474; G.L. § 1694; P.S. § 1651; V.S. § 1299; R.L. § 1062; G.S. 31, § 66; R.S. 26, § 47; R. 1797, p. 414, § 4; 1792, p. 62; 1789, p. 11; R. 1787, p. 86.

Former § 2625 was derived from V.S. 1947, § 1511; P.L. § 1475; G.L. § 1695; 1917, No. 254 , § 1656; P.S. § 1652; V.S. § 1300; 1892, No. 28 , § 18; R.L. § 1063; G.S. 31, § 67; R.S. 26, § 48; R. 1797, p. 414, § 4.

Former § 2626 was derived from V.S. 1947, § 1512; 1945, No. 29 , § 4; P.L. § 1476; G.L. § 1696; 1915, No. 90 , § 13; P.S. § 1653; 1898, No. 38 , § 1.

Former § 2627 was derived from V.S. 1947, § 1513; P.L. § 1477; G.L. § 1697; P.S. § 1654; V.S. § 1301; R.L. § 1064; 1866, No. 37 , § 1.

§§ 2628-2630. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 2628-2630. Former § 2628, relating to appeal not entered, execution and costs, was derived from 1971, No. 185 (Adj. Sess.), § 64.

Former § 2629, relating to the effect of judgment in nonappealable actions, was derived from V.S. 1947, § 1515; P.L. § 1479; G.L. § 1699; P.S. § 1656; V.S. § 1303; R.L. § 1066; 1880, No. 23 , § 2; 1876, No. 64 .

Former § 2630, relating to conclusiveness of judgment on the merits by justice, was derived from V.S. 1947, § 1477; P.L. § 1443; G.L. § 1663; P.S. § 1395; V.S. § 1045; R.L. § 826; G.S. 31, § 28; R.S. 26, § 68; R. 1797, p. 416, § 7; 1792, p. 62; 1789, p. 11; R. 1787, p. 86.

Chapter 111. Levy of Execution

Subchapter 1. Generally

§ 2681. Executions in Supreme and Superior Courts; time.

  1. The Supreme and Superior Courts may issue executions on final judgments rendered by them, which shall be made returnable within 60 days from the date thereof. Such executions may be issued so long as the judgment remains unsatisfied, but not after eight years from the date of rendition of the judgment, except as provided in subsection (b) of this section.
  2. Executions on small claims court judgments may be made so long as the judgment remains unsatisfied, but not after eight years from the date of rendition of the judgment. Actions to renew small claims court judgments shall be brought by filing a complaint in small claims court prior to the expiration of the judgment, and may be made for the amount of the judgment and any postjudgment costs, fees, and interest allowed by law.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 65, eff. March 29, 1972; 1979, No. 67 , § 5, eff. date, see note set out below; 2007, No. 39 , § 6.

History

Source.

V.S. 1947, § 2285. 1945, No. 29 , § 28. P.L. § 2232. G.L. § 2421. P.S. § 2143. V.S. § 1787. R.L. § 1538. G.S. 33, §§ 91, 92. R.S. 28, §§ 40, 41. R. 1797, p. 122, § 95. R. 1787, p. 61.

Amendments

—2007. Added the subsec. (a) designation and the exception at the end of that subsec. and added subsec. (b).

—1979. Substituted “superior” for “county” preceding “courts” in the section catchline and added the second sentence.

—1971 (Adj. Sess.). Omitted provisions relating to limit on issuance of execution.

Effective date; application. 1979, No. 67 , § 11, provided: “This act [which amended this section and §§ 2683, 3521; added §§ 2901-2905, 3167-3172; and repealed §§ 2741, 3165, 3522-3530, 3532, 3533, 3621-3628, 3630-3638, 3672-3687, 3691-3693 of this title and amended § 1158 of Title 24 and § 101 of Title 27] shall take effect July 1, 1979, and shall apply only to judgments rendered subsequent to date of passage [May 8, 1979].”

Vermont Rules of Civil Procedure. 1979, No. 67 , § 8, provided: “Provisions of the Vermont Rules of Civil Procedure in conflict with this act [which amended this section and §§ 2683, 3521; added §§ 2901-2905, 3167-3172; and repealed §§ 2741, 3165, 3522-3530, 3532, 3533, 3621-3628, 3630-3638, 3672-3687, 3691-3693 of this title and amended § 1158 of Title 24 and § 101 of Title 27] in whole or in part shall not be effective to the extent of the conflict as of the effective date of this act [July 1, 1979].”

CROSS REFERENCES

Forms for execution, see, V.R.C.P. Form 33.

Stay of proceeds to enforce judgment, automatic stay and order for immediate execution, see V.R.C.P. 62(a), (c).

ANNOTATIONS

Bankruptcy.

Vermont sheriffs who were directed by Vermont courts to levy on assets owned by a corporation, pursuant to writs of execution issued under 12 V.S.A. § 2681 et seq., before the corporation declared Chapter 11 bankruptcy were “custodians” of the corporation’s property, as that term was defined in 11 U.S.C.S. §§ 101 and 543, and the sheriffs and businesses they hired to repossess the corporation’s property and store it were entitled to compensation to the extent they applied for compensation and demonstrated that sums they sought were reasonable. In re R. Brown & Sons, 2013 Bankr. LEXIS 3010 (Bankr. D. Vt. July 25, 2013).

Conclusiveness of return of officer.

In an action of scire facias against bail to maintain which it is necessary to show return of non est inventus on execution against principal within time fixed by law, return of officer was, in the absence of fraud, conclusive as to time when return was made. Yatter v. Pitkin, 72 Vt. 255, 47 A. 787 (1900), same case 66 Vt. 300, 29 A. 370.

Return of officer levying execution on real estate was conclusive upon parties and all claiming under them. Stevens v. Brown, 3 Vt. 420, 1830 Vt. LEXIS 92 (1830).

Determination of thirty-day period.

Where debtor had not been confined in jail on the original process, this section fixes the starting point when execution may first issue as 30 days after final judgment, except by special permission. In re Waterhouse, 125 Vt. 202, 212 A.2d 696, 1965 Vt. LEXIS 225 (1965).

Where term of court at which party recovered final judgment ended on Saturday, Monday was first day on which party was entitled to take out execution; and that day was to be excluded in computation of the thirty days within which property attached on original writ must be demanded of attaching officer by officer holding execution, in order to charge property. Allen v. Carty, 19 Vt. 65, 1846 Vt. LEXIS 112 (1846).

Final judgment.

A judgment is regarded as final if no further questions can come before the court except such as are necessary to carry the judgment into effect. In re Waterhouse, 125 Vt. 202, 212 A.2d 696, 1965 Vt. LEXIS 225 (1965).

Sufficiency of levy.

A defect in description of premises levied upon that could be supplied with certainty from other parts of same levy did not vitiate it. Galusha v. Sinclear, 3 Vt. 394, 1831 Vt. LEXIS 26 (1831).

§ 2682. Names of attorneys to be indorsed.

The name of an attorney of record for the plaintiff, and for the defendant, if any, shall be indorsed on such execution by the officer signing the same.

History

Source.

V.S. 1947, § 2286. P.L. § 2233. G.L. § 2422. P.S. § 2144. V.S. § 1788. R.L. § 1539. G.S. 33, § 93. R.S. 28, § 42. R. 1797, p. 122, § 95.

§ 2683. Executions on judgments of District Courts; time.

Executions issued upon a judgment rendered by a District Court shall be made returnable within 60 days from the date thereof. Such executions may be issued so long as the judgment remains unsatisfied, but not after eight years from the date of rendition of the judgment.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 249 (Adj. Sess.), § 18, eff. April 9, 1974; 1979, No. 67 , § 6, eff. date, see note set out below.

History

Source.

V.S. 1947, § 2287. P.L. § 2234. G.L. § 2423. 1908, No. 62 . P.S. § 2145. V.S. § 1789. R.L. § 1540. G.S. 31, § 61. 1855, No. 16 . R.S. 26, § 44. R. 1797, p. 416, § 5. R. 1787, p. 86.

Amendments

—1979. Added last sentence.

—1973 (Adj. Sess.). Omitted the words “justices or” preceding the words “district courts” in the section catchline and “justice or” preceding “district court” in the section.

—1965. Substituted “district” for “municipal” court.

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

Vermont Rules of Civil Procedure. For effectiveness of V.R.C.P., see note set out under § 2681 of this title.

§ 2684. Collection of execution enjoined, time not reckoned.

When the collection of an execution in the hands of an officer is enjoined, such officer may retain the same. If the injunction is vacated, the time between the issuing and vacating thereof shall not be included in counting the number of days the execution has to run. Upon the vacating of such injunction, the clerk of the Superior Court, on demand, shall give the plaintiff in such execution a certificate of the date of the injunction and when vacated. On receipt of such certificate, the officer holding such execution shall proceed to levy and collect the execution, and shall annex such certificate to his or her return thereon.

HISTORY: 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2288. P.L. § 2235. G.L. § 2424. P.S. § 2146. V.S. § 1790. R.L. § 1541. 1880, No. 32 , § 1.

Revision note—

Reference to “County Court” was changed to “Superior Court” pursuant to 1973, No. 193 (Adj. Sess.), § 3. See note under 4 V.S.A. § 71 .

Revision note—. Reference to “clerk of the court of chancery” was changed to “clerk of the county court” to conform reference to merger of law and equity pursuant to 1971, No. 185 (Adj. Sess.), § 236. See note set out under 4 V.S.A. § 219 .

§ 2685. Continuance of subsequent attachments.

If attached property is encumbered by a prior attachment, the subsequent attachment shall continue after the removal of the encumbrance for such time as the Supreme Court may by rule provide for the continuance of attachments generally.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 66, eff. March 29, 1972.

History

Source.

1949, No. 59 . V.S. 1947, § 2289. P.L. § 2236. G.L. § 2425. P.S. § 2147. V.S. § 1791. R.L. § 1542. G.S. 33, § 94. R.S. 28, § 19. 1822, p. 12. R. 1797, p. 90, § 33. 1791, p. 8.

Amendments

—1971 (Adj. Sess.). Section amended generally.

Case annotations. Period for holding personal property under attachment after judgment was 30 days when cases covered below were decided.

CROSS REFERENCES

Discharge of attachment lien on real estate, see §§ 3293, 3294 of this title.

Stay of proceedings to enforce judgment, continuous attachment, see V.R.C.P. 62(g).

ANNOTATIONS

Delivery of execution to attaching officer as taking of property in execution.

When property is attached on mesne process, delivery of execution to officer, who made attachment within thirty days from rendition of judgment, was a taking of property in execution within meaning of statute, so far as respects support of lien of creditor. Bliss v. Stevens, 4 Vt. 88, 1831 Vt. LEXIS 65 (1831); Ayer v. Jameson, 9 Vt. 363, 1837 Vt. LEXIS 52 (1837); Enos v. Brown, 1 D. Chip. 280 (Vt. Aug. 1, 1814).

When creditor’s lien was kept good by delivering execution to officer within thirty days, a demand of property of receiptors, after first thirty days and in life of execution, was sufficient to charge them. Bliss v. Stevens, 4 Vt. 88, 1831 Vt. LEXIS 65 (1831).

—Generally.

When property had been attached by an officer and execution was delivered to another officer, property attached was not charged in execution without a demand of property of attaching officer, notwithstanding execution had been taken out and delivered to second officer within thirty days after judgment, and notwithstanding property had been entirely consumed by debtor before judgment was rendered on which the execution issued. Collins v. Smith, 16 Vt. 9, 1844 Vt. LEXIS 1 (1844).

If property is attached by a deputized person, to charge such property in execution, execution must be delivered to same person within thirty days after judgment, or if delivered to another officer it must be demanded or taken by him within thirty days or attachment is dissolved. Clark v. Washburn, 9 Vt. 302, 1837 Vt. LEXIS 42 (1837); Dewey v. Fay, 34 Vt. 138, 1861 Vt. LEXIS 32 (1861); Blodgett v. Adams, 24 Vt. 23, 1851 Vt. LEXIS 102 (1851).

Demand of receiptor.

Where execution was delivered to another officer, and property was demanded of attaching officer in season to charge him, it was not necessary that it should also have been demanded of receiptor within the thirty days. Allen v. Carty, 19 Vt. 65, 1846 Vt. LEXIS 112 (1846).

Demand on personal representative.

Where no demand was made upon receiptor in his lifetime, it had to be made upon his personal representative before cause of action could be considered as perfected against his estate. Carpenter v. Estate of Snell, 37 Vt. 255, 1864 Vt. LEXIS 91 (1864).

Demand on removal of officer.

Where constable who had attached property upon mesne process had removed from State, it was sufficient to demand it of selectmen and town agent of town, and of one of persons whose accountable receipt constable had taken for property. Austin v. Burlington, 34 Vt. 506, 1861 Vt. LEXIS 89 (1861).

Want of demand by officer having execution was not excused although attaching officer delivered property to debtor, who removed from county therewith. Jameson v. Macon, 12 Vt. 599, 1839 Vt. LEXIS 163 (1839).

Effect of arrest on liens created by attachment.

When body of debtor is committed upon execution, all liens created by attachment are lost; and if creditor subsequently releases body of debtor, and takes execution against his goods and estate, it only gives him a new and independent remedy, and does not revive any lien created by original attachment. Willard v. Lull, 20 Vt. 373, 1848 Vt. LEXIS 50 (1848).

Effect of loss of attachment lien.

When lien of attachment upon real estate had been lost, as provided by section, a levy of execution was subject to rights of one who was in possession under an executory contract of sale executed between dates of the attachment and the levy. Reynolds v. Bean, 91 Vt. 247, 99 A. 1013, 1917 Vt. LEXIS 238 (1917).

Sale of real estate upon execution.

Sale of real estate upon execution must be completed within five months from rendition of final judgment in order to preserve an attachment lien. Whipple v. Sheldon, 63 Vt. 197, 21 A. 271, 1890 Vt. LEXIS 77 (1890).

Where execution sale was not completed until seven months after final judgment, creditor did not connect sale with attachment, and title of defendant, who purchased after the attachment, was superior, if he bought the premises in good faith. Whipple v. Sheldon, 63 Vt. 197, 21 A. 271, 1890 Vt. LEXIS 77 (1890).

Where execution was actually levied on land attached on mesne process, and appraisal made within five calendar months after rendition of final judgment, but levy was not recorded in town clerk’s office until after five months had expired, levy was not in season to connect it with attachment lien. Ellison v. Wilson, 36 Vt. 60, 1863 Vt. LEXIS 41 (1863).

§ 2686. Execution for subsequent attaching creditor.

  1. When a subsequent attaching creditor recovers judgment while a prior action is pending, on which the same property is attached, he or she may take an execution on such judgment at any time within 30 days after all prior attachments are discharged, if the property attached is personal property, and, if real estate, within five months after the prior attachments are discharged, though more than a year and a day have passed after the rendition of such judgment.  If an execution was taken out at the time of the rendition of such judgment, which is unsatisfied, the plaintiff may take out other executions thereon within the time aforesaid, though the judgment has lain dormant for more than a year and a day. Such execution, or other executions, if so taken out, shall hold the lien on the goods or estate so attached, if put into the hands of the attaching officer within 30 days after the discharge of all liens on such property, if the property was personal, or five months, if real estate.
  2. If more than a year and a day have expired from the rendition of the judgment, the magistrate issuing such execution shall state therein that the plaintiff was a subsequent attaching creditor.

History

Source.

V.S. 1947, §§ 2290, 2291. P.L. §§ 2237, 2238. G.L. §§ 2426, 2427. P.S. §§ 2148, 2149. V.S. §§ 1792, 1793. R.L. §§ 1543, 1544. 1880, No. 32 , §§ 2, 3.

ANNOTATIONS

Successive executions.

Fact that taking out of successive executions would avail creditor nothing in getting satisfaction of his judgment is no reason for not taking out such executions, and does not keep judgment active unless by force of some statute. Yatter v. Smilie, 72 Vt. 349, 47 A. 1070, 1900 Vt. LEXIS 147 (1900).

§ 2687. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 2687. Former § 2687, relating to time of rendering judgment for charging property or bail, was derived from V.S. 1947, § 2292; P.L. § 2239; G.L. § 2428; P.S. § 2150; V.S. § 1794; R.L. § 1545; G.S. 33, § 95; R.S. 28, § 20; 1804, p. 95. This section is now covered by V.R.C.P. 62(f).

ANNOTATIONS

Determination of 30-day period.

Where court recessed until 21st of December and continued in session until the 24th, when it adjourned, and on December 7th an order had been made by court that execution on judgments in trials completed might issue as of December 8th, it was sufficient to put executions into hands of officer making attachments at any time within 30 days after December 25th. Paul v. Burton, 32 Vt. 148, 1859 Vt. LEXIS 77 (1859).

§ 2688. Officer to endorse time of receiving; preference.

When an execution issued on a judgment is received by an officer authorized by law to levy and serve the same, he or she shall endorse thereon, without fee, the day of the month and year when he or she received it. If two or more executions are delivered to him or her against the same person, the one first delivered shall be first satisfied.

History

Source.

V.S. 1947, § 2293. P.L. § 2240. G.L. § 2429. P.S. § 2151. V.S. § 1795. R.L. § 1546. G.S. 47, § 1. R.S. 42, § 1. R. 1797, p. 152, § 10.

ANNOTATIONS

Damages for failure to make entry.

Sheriff, to whom execution had been delivered for collection, was not liable at suit of creditor for neglecting to minute upon execution time of receiving it, unless latter had before commencement of action suffered actual damage by reason of such omission. Abbott v. Edgerton, 30 Vt. 208, 1858 Vt. LEXIS 22 (1858).

Nunc pro tunc entry of date.

When officer neglected to make entry on execution of true day, month and year when he received it and same became important to support his lien upon property for which a suit was brought, court would not permit such officer to make the entry nunc pro tunc so as to affect suit then pending. Fletcher v. Pratt, 4 Vt. 182, 1832 Vt. LEXIS 23 (1832).

Parol proof of date execution received.

Officer may support his lien by such parol proof as would show attaching creditor’s lien upon property kept good, as against the officer who made the attachment. Fletcher v. Pratt, 4 Vt. 182, 1832 Vt. LEXIS 23 (1832).

§ 2689. Officer to demand payment.

Such officer shall repair to the debtor’s usual place of abode, if within his or her precinct, and demand of the debtor the sum required to be levied by such execution, with the interest thereon, and the charges for serving the same.

History

Source.

V.S. 1947, § 2294. P.L. § 2241. G.L. § 2430. P.S. § 2152. V.S. § 1796. R.L. § 1547. G.S. 47, § 2. R.S. 42, § 2. R. 1797, p. 144, § 1. R. 1787, p. 60.

ANNOTATIONS

Demand when debtor absent.

Demand of payment at house of debtor when he was absent from the State was sufficient to authorize a levy of an execution on land. Dodge v. Prince, 4 Vt. 191, 1831 Vt. LEXIS 69 (1831); Galusha v. Sinclear, 3 Vt. 394, 1831 Vt. LEXIS 26 (1831).

Effect of neglect to make demand.

Neglect of officer to make demand of debtor before proceeding to levy an execution did not invalidate levy. Collins v. Perkins, 31 Vt. 624, 1859 Vt. LEXIS 36 (1859); Bates v. Carter, 5 Vt. 602, 1831 Vt. LEXIS 83 (1831).

Neglect of this duty did not render levy a trespass though it might subject officer to an action on the case if any real damage ensued. Dow v. Smith, 6 Vt. 519 (1834), same case 7 Vt. 465.

Interest.

Execution levied on real estate bears interest by statute. Ross v. Shurtleff, 55 Vt. 177, 1882 Vt. LEXIS 44 (1882).

Section directory.

Statute directing officer having an execution to call at debtor’s dwelling house for pay before levy is directory. Dow v. Smith, 6 Vt. 519 (1834), same case 7 Vt. 465.

Statement on return regarding demand.

It was not necessary for officer levying an execution on real estate to state in his return that he had demanded the money, etc. nor that debtor neglected to pay it, or to exhibit personal property; these preliminary duties were not essential to pass title. Eastman v. Curtis, 4 Vt. 616, 1832 Vt. LEXIS 85 (1832).

§ 2690. Appointment of agent of creditor.

When an execution is delivered to an officer for service in a county other than that in which the creditor or his or her attorney of record resides, such creditor or such attorney shall endorse on the execution the name of a person in the county in which the execution is to be levied, to be the agent of the creditor for the purpose of receiving the money on such execution and for giving to or receiving from such officer necessary notices relating thereto. Notices given to such agent shall be as effectual as if given to the creditor.

History

Source.

V.S. 1947, § 2339. P.L. § 2286. G.L. § 2475. P.S. § 2197. V.S. § 1841. R.L. § 1592. G.S. 47, § 42. R.S. 42, § 42. R. 1797, p. 153, § 12.

§ 2691. Executions against trustees of colleges or proprietors of undivided lands.

When judgment is rendered against the trustees of colleges or academies or proprietors of undivided lands, execution shall issue against the goods, chattels, or lands of such trustees or proprietors.

History

Source.

V.S. 1947, § 2311. P.L. § 2258. G.L. § 2447. P.S. § 2169. V.S. § 1813. R.L. § 1564. G.S. 85, § 15. R.S. 78, § 12. R. 1797, p. 302, § 6.

§ 2692. Invalid and informal levies—New execution.

When an execution is levied on real or personal estate, and it afterwards appears that the estate did not belong to the debtor, or was encumbered by a mortgage not regarded in a sale thereof on execution, by reason of which the levy and sale are void, the court, upon motion, notice, and hearing, may issue an execution for the original execution, or so much thereof as was satisfied by the levy, and the costs thereon with interest on the same from the time of the levy, and the costs of the motion.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 67, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2340. P.L. § 2287. G.L. § 2476. P.S. § 2198. V.S. § 1842. R.L. § 1593. G.S. 47, § 43. 1852, No. 9 . 1850, No. 8 . R.S. 42, § 39. R. 1797, p. 151, § 9. 1794, p. 62.

Amendments

—1971 (Adj. Sess.). Rephrased, substituted “upon motion, notice, and hearing”, for “to which the scire facias is returnable” and “motion” for “scire facias”.

ANNOTATIONS

Debtors having general ownership of property.

Section extended to cases where debtor, though having general ownership, yet had no such title to property as could be made available to levying creditor. Baxter v. Shaw, 28 Vt. 569, 1856 Vt. LEXIS 79 (1856).

§ 2693. When costs not allowed.

When it appears that the estate was turned out to the officer by the creditor or taken without the consent of the debtor, the creditor shall not recover costs on the former execution or on the motion.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 68, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2341. P.L. § 2288. G.L. § 2477. P.S. § 2199. V.S. § 1843. R.L. § 1594. G.S. 47, § 44. R.S. 42, § 40. R. 1797, p. 151, § 9. 1794, p. 63.

Amendments

—1971 (Adj. Sess.). Rephrased and substituted “motion” for “scire facias”.

§ 2694. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 2694. Former § 2694, relating to new execution on execution issued by justice, was derived from 1971, No. 185 (Adj. Sess.), § 69.

§ 2695. Defective execution on real estate; application.

Where an execution has been levied on real estate and the levy, sale, or deed is irregular, informal, or not according to law and the title derived therefrom is doubtful, within two years from the time of sale, a party interested may bring an action in the Superior Court, setting forth in the complaint the respects in which it is claimed the proceedings on the execution were irregular, informal, and not according to law. Upon hearing, the presiding judge may grant the plaintiff and all parties interested such relief as is equitable.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 70, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2343. P.L. § 2290. G.L. § 2479. P.S. § 2201. V.S. § 1845. 1894, No. 162 , § 1785. R.L. § 1596. G.S. 47, §§ 46, 47. R.S. 42, §§ 43, 44. 1837, No. 3 , § 1. 1835, No. 5 , § 1.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1971 (Adj. Sess.). Rephrased and substituted reference to “county” court for “chancery” court.

ANNOTATIONS

Construction.

Statute was remedial, and should receive a liberal construction, so as to advance the remedy. Hyde v. Taylor, 19 Vt. 599, 1847 Vt. LEXIS 92 (1847).

Defects in levy.

Statute was not restricted to defects which were apparent upon face of levy, but extended to case where officer intending to levy upon life estate of debtor in land subject to a mortgage by mistake caused fee simple to be appraised, and levied upon entire equity of redemption. Hyde v. Taylor, 19 Vt. 599, 1847 Vt. LEXIS 92 (1847); Briggs v. Green, 33 Vt. 565, 1861 Vt. LEXIS 4 (1861).

Statute includes all such informalities or irregularities as would render the levy doubtful, or even bad, but not extending to the subject matter of the levy; it includes such levy as merely neglects to state that the justice, appointing the appraisers, was qualified to judge between the parties. Bell v. Roberts, 13 Vt. 582 (1841), same case 15 Vt. 741.

Evidence.

Upon petition to vacate the levy of an execution for the want of notice, fact that no such notice was given may be shown by parol notwithstanding the officer stated in his return of the levy that notice was given. Briggs v. Green, 33 Vt. 565, 1861 Vt. LEXIS 4 (1861).

Remedy exclusive.

Scire facias was not the appropriate remedy to obtain a new execution, when former execution had been levied upon real estate in a defective manner, especially where defect did not appear upon face of levy; remedy given by this section in such case should be considered as superseding all other remedies. Administrator of Royce v. Strong, 11 Vt. 248, 1839 Vt. LEXIS 59 (1839).

Time limitation.

Notice to adverse party must be given within two years from return of execution; the filing of the petition, with certified copies of the judgment, etc., within the statutory period, did not prevent running of statute, where notice was not also given within that period. Phelps v. Laird, 51 Vt. 285, 1878 Vt. LEXIS 160 (1878).

Void levy.

Petitions under this section to vacate a levy of execution are sustainable only in case of irregularity or informality in the levy, and not when the levy is void. Whitefield v. Adams, 65 Vt. 632, 27 A. 323, 1893 Vt. LEXIS 106 (1893); Parker v. Parker, 54 Vt. 341, 1882 Vt. LEXIS 11 (1882).

§ 2696. Levy valid if affirmed or action not brought.

When the action is not brought within the time limited or if on hearing the presiding judge decides that the proceedings on execution were legally sufficient, a levy, sale, and deed shall be valid to convey the right, title, or interest that the judgment debtor had at the time of the levy in the real estate sold and shall be conclusive evidence of the title in the estate against the debtor or his or her representatives.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 71, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2344. P.L. § 2291. G.L. § 2480. P.S. § 2202. V.S. § 1846. 1894, No. 162 , § 1786. R.L. § 1598. G.S. 47, § 49. R.S. 42, § 46. 1837, No. 3 , § 2. 1835, No. 5 , § 3.

Amendments

—1971 (Adj. Sess.). Rephrased, substituted “the action” for “such a petition” and “presiding judge” for “court”.

ANNOTATIONS

Defects cured by lapse of time.

Where appraisers were appointed partly from both towns, defect, if any, in mode of appointing them was merely informal and cured by neglect of both parties to apply two years to vacate the levy. Perrin v. Reed, 35 Vt. 2 (1861) same case 33 Vt. 62; Ross v. Shurtleff, 55 Vt. 177, 1882 Vt. LEXIS 44 (1882).

Defect in levy of execution upon undivided interest of an heir in the real estate of the ancestor in not stating amount of interest of such heir in estate was at most a mere defect in form which was cured after lapse of two years without action by either party. Hyde v. Barney, 17 Vt. 280, 1845 Vt. LEXIS 28 (1845).

Defects not cured by lapse of time.

Audita querela was appropriate remedy to vacate levy of execution on real estate, when, through fraud of creditor, officer made a false return of appraisal, and set off too much of debtor’s property, when this irregularity did not appear upon the face of the officer’s return. Hopkins v. Hayward, 34 Vt. 474 (1861), same case 36 Vt. 318.

§ 2697. Costs.

Costs may be taxed for either party on the action.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 72, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2345. P.L. § 2292. G.L. § 2481. P.S. § 2203. V.S. § 1847. R.L. § 1601. G.S. 47, § 52. R.S. 42, § 49. 1835, No. 5 , § 5.

Amendments

—1971 (Adj. Sess.). Substituted “the action” for “such petition”.

Subchapter 2. Personal Property, Levy, and Sale

§ 2731. Levy on personal property.

When the execution with costs is not paid on demand the officer shall levy the same upon the goods or chattels of the debtor or such as are shown him or her by the creditor, and the same shall be safely kept by the officer at the debtor’s expense, until sold or the execution is otherwise satisfied.

History

Source.

V.S. 1947, § 2295. P.L. § 2242. G.L. § 2431. P.S. § 2153. V.S. § 1797. R.L. § 1548. G.S. 47, § 3. R.S. 42, § 3. R. 1797, p. 144, § 1. R. 1787, p. 60.

CROSS REFERENCES

Levy of execution on personal property by filing in clerk’s office without taking possession, see § 3251 et seq. of this title.

Personal property subject to mortgage, pledge, or lien; attachment, levy of execution, and sale, see § 3351 et seq. of this title.

ANNOTATIONS

Bankruptcy.

Bankruptcy court refused to revise a decision it issued which found that two Vermont sheriffs were custodians under 12 V.S.A. § 2731 of equipment that was seized from a corporate debtor before the debtor declared Chapter 11 bankruptcy, and held that two businesses that repossessed the equipment and stored it were the sheriffs’ agents. 12 V.S.A. § 2731 was clear that the duty to keep the debtor’s property safe through the date the property was sold or the execution was satisfied fell on the sheriffs, and the storage companies acted as the sheriffs’ agents in fulfilling that responsibility. In re R. Brown & Sons, Inc., 2013 Bankr. LEXIS 3447 (Bankr. D. Vt. Aug. 23, 2013).

Levy during life of execution.

An execution cannot be levied after return day thereof; and, if it be done, the officer and those directing or assisting him will be trespassers; but if a levy was made within the life of an execution, the sale and return could be made afterwards; in which case it should be so certified by officer. Barnard v. Stevens, 2 Aik. 429 (Vt. Mar. 1, 1828); Keniston v. Stevens, 66 Vt. 351, 29 A. 312, 1894 Vt. LEXIS 105 (1894).

Payment of fees.

Two sheriffs who were directed by Vermont courts pursuant to 12 V.S.A. § 2731 to levy on assets owned by a corporate debtor before the debtor declared Chapter 11 bankruptcy were custodians of the debtor’s property because they had control of the property on the date the debtor declared bankruptcy, and two companies that were hired to take possession of the debtor’s property and stored it before and after the debtor declared bankruptcy were entitled to payment under 11 U.S.C.S. § 543 of fees they charged; the fees the companies charged were reasonable and had to be paid by the debtor through its bankruptcy plan, as an administrative expense under 11 U.S.C.S. § 503, to meet the confirmation requirements of 11 U.S.C.S. § 1129. In re R. Brown & Sons, Inc., 498 B.R. 425, 2013 Bankr. LEXIS 3881 (Bankr. D. Vt. 2013), aff'd, 2015 U.S. Dist. LEXIS 24124 (D. Vt. Feb. 25, 2015).

Satisfaction of execution before levy.

Where amount of an execution was paid and satisfied to party and he endorsed same on writ after it was in hands of officer, but before he had made any levy thereof, officer was not entitled to fees thereon and if he levied thereafter for his fees, he would be a trespasser. Barnard v. Stevens, 2 Aik. 429 (Vt. Mar. 1, 1828).

Law Reviews —

Post-judgment executions in Vermont and sheriffs’ liability, see 2 Vt. L. Rev. 117 (1977).

§ 2732. Goods, effects, and credits held by third person.

On request of the judgment creditor, the clerk of the court granting judgment shall issue to the officer holding the execution a summons as trustee to a third person having in his or her hands goods, effects, or credits, other than earnings, of the debtor that have not previously been attached on trustee process in connection with the action. The summons shall be in such form as the Supreme Court may by rule provide for a summons to a trustee in connection with the commencement of an action and shall state the date and amount of the judgment. The summons shall be served by the officer upon the trustee in like manner and with the same effect as mesne process. A copy of the summons shall be served upon the judgment debtor with the officer’s endorsement thereon of the date of service upon the trustee. After service of the summons, proceedings shall be had as provided by law and by rule promulgated by the Supreme Court for trustee process in connection with the commencement of an action.

HISTORY: Added 1971, No. 185 (Adj. Sess.), § 235, eff. March 29, 1972.

History

Revision note—

This section was formerly set out as § 2731a.

—Former § 2732. Former § 2732, relating to advertisement, is set out as § 2733 of this title.

ANNOTATIONS

Cited.

Cited in Licursi v. Sweeney, 157 Vt. 599, 603 A.2d 342, 1991 Vt. LEXIS 231 (1991).

§ 2733. Advertisement.

  1. The officer shall forthwith advertise the goods or chattels so taken by posting at a public place in the town where they were taken a notice enumerating them and stating the time when the same will be sold at public auction at such public place, which time shall not be less than 14 days from the time of posting such notice.  If the amount of the execution is $50.00 or more and if the cost of publication does not exceed $2.00, such notice shall also be published two weeks successively prior to such sale in at least one newspaper published in such town, if there are any published therein, and, if not, in a newspaper of known circulation in such town.
  2. When the property levied upon is hay, grain in the straw, potatoes, timber, lumber, brick, lime, coal, charcoal, ashes, machinery used in a shop, mill or factory, hides in the process of tanning, cordwood, stone, ore, bark, shingles, hives of bees, hay scales, or the utensils and apparatus kept on a farm for the manufacture of maple sugar, the notice shall state the time when the same will be sold, either at the place where the same are kept by the officer or at such public place.

History

Source.

V.S. 1947, § 2296. P.L. § 2243. G.L. § 2432. P.S. § 2154. 1906, No. 71 , § 1. V.S. § 1798. R.L. § 1549. 1878, No. 56 . G.S. 47, § 4. 1843, No. 2 . R.S. 42, § 4. R. 1797, p. 144, § 1. R. 1787, p. 60.

Revision note—

This section was formerly set out as § 2732.

—Former § 2733. Former § 2733, relating to sale, is set out as § 2734 of this title.

Undesignated paragraphs were designated as subsecs. (a) and (b) to conform to V.S.A. style.

ANNOTATIONS

Place of advertisement and sale.

Where officer advertised property other than hay, grain, etc., taken in execution at one place for sale at another place, and sold it accordingly, he thereby became a trespasser ab initio, and liable for full value of property, notwithstanding he applied the proceeds of sale upon execution. Evarts v. Burgess, 48 Vt. 205, 1876 Vt. LEXIS 10 (1876).

Where an officer sold property on execution at a different place from that named in the notice, without adjournment to such place or consent of the execution debtor, he became a trespasser ab initio, and liable in an action of trespass to debtor for full value of property, although officer paid over to debtor proceeds of sale. Hall v. Ray, 40 Vt. 576, 1868 Vt. LEXIS 50 (1868).

Officer could, in exercise of a sound and reasonable discretion, change by adjournment both time and place appointed for sale of property taken in execution, provided it was to a place which he was authorized to appoint as place of sale in first instance. Jewett v. Guyer, 38 Vt. 209, 1865 Vt. LEXIS 86 (1865).

Where property was attached in one town and taken into another by officer, and there held until execution issued against owner, and there levied upon, advertisement and sale upon execution should be made in the town where property was originally attached. Collins v. Perkins, 31 Vt. 624, 1859 Vt. LEXIS 36 (1859).

When character and situation of personal property upon which an execution is levied, and interests of parties require it, officer may in his sound discretion, and in good faith, advertise and sell it at more than one place. Drake v. Mooney, 31 Vt. 617, 1859 Vt. LEXIS 33 (1859).

Public place.

Farm stock may be sold on the premises where attached, if on a public road and posted on fence near buildings. Goss v. Cardell, 53 Vt. 447, 1881 Vt. LEXIS 24 (1881).

It being alleged that property was posted to be sold at F. W. Baldwin’s barn, the declaration was in this respect sufficient on general demurrer, it being presumed that such was a public place. Alger v. Curry, 40 Vt. 437 (1868), same case 38 Vt. 382, 2 A.L.R. 1010.

“Public place” meant place where advertisement would be likely to attract general attention so that its contents might reasonably be expected to become a matter of notoriety; a barn, dwelling house, shed, or even a rock or tree, if answering this condition, could be a public place within meaning of statute. Austin v. Soule, 36 Vt. 645, 1864 Vt. LEXIS 24 (1864).

There was no presumption, without proof, that places described in an officer’s return of the levy of an execution on personal property, as places where the sale was advertised and took place, were not public places. Drake v. Mooney, 31 Vt. 617, 1859 Vt. LEXIS 33 (1859).

Waiver of advertisement.

Advertising of property previous to its sale on execution was required for benefit of debtor, and if he waived that provision and consented to sale without advertisement, sale would be legal. Burroughs v. Wright, 16 Vt. 619 (1844), same case 19 Vt. 510, 2 A.L.R.2d 50.

§ 2734. Sale.

When the debtor does not satisfy the execution with costs and charges thereon before the time of sale, the officer shall, at the time and place appointed, sell the same, or a part thereof sufficient to satisfy the execution with the costs and charges thereon, at public auction to the highest bidder.

History

Source.

V.S. 1947, § 2297. P.L. § 2244. G.L. § 2433. P.S. § 2155. V.S. § 1799. R.L. § 1550. G.S. 47, § 5. R.S. 42, § 5. R. 1797, p. 144, § 1. R. 1787, p. 60.

Revision note—

This section was formerly set out as § 2733.

—Former § 2734. Former § 2734, relating to application of proceeds, is set out as § 2735 of this title.

ANNOTATIONS

Conclusiveness of sheriff’s return.

Where return of officer showed a regular sheriff’s sale, that was conclusive between parties. Wood v. Doane, 20 Vt. 612, 1848 Vt. LEXIS 85 (1848).

Evidence.

Execution sale, regular upon its face, could be attacked for collusion between creditor and debtor, and when so assailed, record of sale was only prima facie evidence that it was bona fide. Caswell v. Jones, 65 Vt. 457, 26 A. 529, 1893 Vt. LEXIS 77 (1893).

Impeaching validity of sale.

No one but owner of property, or some person representing him, can call in question the attachment and sale. Sanborn v. Kittredge & Morrill, 20 Vt. 632, 1847 Vt. LEXIS 116 (1847).

If sheriff’s sale of property was valid as against debtor, it was also valid as against his creditors, so far as it could be sustained independently of any consent of debtor, and was free from all collusion on his part. Wood v. Doane, 20 Vt. 612, 1848 Vt. LEXIS 85 (1848).

Sale to officer.

Officer conducting execution sale could not act as agent of creditor with discretionary authority to bid in property, and if he did so bid it in sale would be void. Caswell v. Jones, 65 Vt. 457, 26 A. 529, 1893 Vt. LEXIS 77 (1893).

Where sheriff sold property at public auction on an execution to his agent, and agent bid it off with tacit understanding that sheriff was to have it and pay for it, execution creditor being ignorant of transaction, such sale could be declared void by a court of equity. Downing v. Lyford & Senter, 57 Vt. 507, 1885 Vt. LEXIS 88 (1885).

An officer who acted in sale of property upon execution merely by force of his process could not make a sale of such property to himself, and did not, by such attempted sale, acquire even a defeasible title to property, good against all persons but debtor and creditor. Woodbury v. Parker, 19 Vt. 353, 1847 Vt. LEXIS 40 (1847).

Sale without change of possession.

Where proceedings of officer on execution were in substantial compliance with law, and operated by their legal force, unaided by any consent of judgment debtor to transfer to purchaser title of property sold thereunder, sale, though somewhat informal and defective, was a good sheriff’s sale, and protected purchaser in his right to property without a change of possession. Fitzpatrick v. Peabody, 51 Vt. 195, 1878 Vt. LEXIS 145 (1878); Bates v. Carter, 5 Vt. 602, 1831 Vt. LEXIS 83 (1831).

Sheriff’s sales are an exception to the general principle that sales of personal chattels unaccompanied by a visible and substantial change of possession are inoperative as against creditors of vendor. Austin v. Soule, 36 Vt. 645, 1864 Vt. LEXIS 24 (1864).

Where personal property sold consisted in part of a quantity of mill logs, which were lying on ice and banks of a river to which they had been drawn for purpose of being floated down to a mill, and no actual possession of logs was taken by vendee, but vendor exercised no further control over them, and residue of property embraced in sale passed into possession of vendee, the sale was valid, without any actual removal, as against a creditor of vendor, who attached logs with knowledge of sale. Sanborn v. Kittredge & Morrill, 20 Vt. 632, 1847 Vt. LEXIS 116 (1847).

Title of purchaser at sheriff’s sale.

Purchaser of personal property at sheriff’s sale acquired thereby no better title to property than debtor had. Sanborn v. Kittredge & Morrill, 20 Vt. 632, 1847 Vt. LEXIS 116 (1847); Griffith v. Fowler, 18 Vt. 390, 1846 Vt. LEXIS 58 (1846).

Any informality in proceedings of sheriff would not defeat title of purchaser, if proceedings were substantially in conformity to law, even where it appeared upon face of return. Wood v. Doane, 20 Vt. 612, 1848 Vt. LEXIS 85 (1848).

Purchaser of personal chattels at sheriff’s sale was not affected by any irregularity or impropriety in officer’s proceedings, but officer was liable therefor to party injured. Administrator of Janes v. Martin, 7 Vt. 92, 1835 Vt. LEXIS 17 (1835).

§ 2735. Application of proceeds.

The monies arising from such sales shall be applied to the payment of the charges and the satisfaction of the execution. The officer shall pay on demand the residue, if any, to the debtor.

History

Source.

V.S. 1947, § 2298. P.L. § 2245. G.L. § 2434. P.S. § 2156. V.S. § 1800. R.L. § 1551. G.S. 47, § 6. R.S. 42, § 6. R. 1797, p. 144, § 1. R. 1787, p. 60.

Revision note—

This section was formerly set out as § 2734.

—Former § 2735. Former § 2735, relating to penalty for not paying to creditor, is set out as § 2736 of this title.

ANNOTATIONS

Charges of keeping property.

Charges of an officer for keeping property during pendency of action under which attachment was made constitute a lien upon property, which must be satisfied before proceeds of sale are applied upon the execution; and it is not necessary in order to preserve this lien that these charges should be taxed as costs and included in execution; but this priority of lien extends only to avails of property itself which is so kept and an officer is not justified in applying to satisfaction of such untaxed charges, in preference to payment of execution, money which he receives from one who has become recognized to plaintiff for costs, and who makes such payment in satisfaction of his liability under such recognizance. McNeil v. Bean, 32 Vt. 429, 1859 Vt. LEXIS 120 (1859).

§ 2736. Penalty for not paying to creditor.

An officer who, on demand, does not pay to the creditor in an execution, his or her agent or attorney, such sums of money as he or she receives on the execution, shall forfeit to the person to whose use he or she received the same, 15 percent interest thereon, so long as he or she detains it after demand, to be recovered in an action of tort on this statute.

History

Source.

V.S. 1947, § 2299. P.L. § 2246. G.L. § 2435. P.S. § 2157. V.S. § 1801. R.L. § 1552. G.S. 12, § 23. R.S. 11, § 23. R. 1797, p. 140, § 11.

References in text.

The reference to “an action of tort” is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

Revision note—

This section was formerly set out as § 2735.

—Former § 2736. Former § 2736, relating to officer’s return, is set out as § 2737 of this title.

ANNOTATIONS

Defendants out of office.

It was no defense that action was not commenced for default until after both sheriff and deputy had gone out of office. Coburn v. Chamberlin, 31 Vt. 326, 1858 Vt. LEXIS 139 (1858).

Interest.

The fifteen per cent interest is given to enhance liability of sheriff for wrongful act of not paying over money as an element of damage and not as a rate of interest for forbearance of money. Smith v. Pike, 44 Vt. 61, 1871 Vt. LEXIS 91 (1871).

Payment to agent.

Where payment of money collected by deputy sheriff upon execution was demanded of deputy by an agent of execution creditor, and deputy promised to pay, he could not, on action commenced against sheriff for the money, object that no evidence was shown to him at time demand was made of authority of agent to make demand and receive money. Barron v. Pettes, 18 Vt. 385, 1846 Vt. LEXIS 57 (1846).

§ 2737. Officer’s return.

The officer serving the execution shall make return thereof with his or her doings thereon, describing the goods or chattels taken and sold and the sum for which each was sold.

History

Source.

V.S 1947, § 2300. P.L. § 2247. G.L. § 2436. P.S. § 2158. V.S. § 1802. R.L. § 1553. G.S. 47, § 7. R.S. 42, § 7. R. 1797, p. 144, § 1.

Revision note—

This section was formerly set out as § 2736.

—Former § 2737. Former § 2737, relating to action against officer, is set out as § 2738 of this title.

§ 2738. Action against officer for fraud or collusion.

When such officer is guilty of fraud or collusion on such sale or return, he or she shall pay the party injured three times the amount of damages occasioned by such fraud or collusion, to be recovered in an action of tort on this statute, with costs.

History

Source.

V.S. 1947, § 2301. P.L. § 2248. G.L. § 2437. P.S. § 2159. V.S § 1803. R.L. § 1554. G.S. 47, § 8. R.S. 42, § 8. R. 1797, p. 144, § 1.

References in text.

The reference to “an action of tort” is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

Revision note—

This section was formerly set out as § 2737.

—Former § 2738. Former § 2738, relating to United States currency, is set out as § 2739 of this title.

§ 2739. United States currency.

United States currency may be taken in execution and paid to the creditor as money collected.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 73, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2302. P.L. § 2249. G.L. § 2438. P.S. § 2160. V.S. § 1804. R.L. § 1555. G.S. 47, §§ 11, 12. R.S. 42, §§ 11, 12.

Revision note—

This section was formerly set out as § 2738.

—Former § 2739. Former § 2739, relating to exemption of goods and chattels, is set out as § 2740 of this title.

Amendments

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Taking of money in execution.

Money of a debtor in his possession could be taken on execution, where officer could seize same without violation of personal security of debtor. Prentiss v. Bliss, 4 Vt. 513, 1832 Vt. LEXIS 67 (1832); W.R. Lovejoy & Co. v. Lee, 35 Vt. 430, 1862 Vt. LEXIS 59 (1862).

§ 2740. Goods and chattels; exemptions from.

The goods or chattels of a debtor may be taken and sold on execution, except the following articles, which shall be exempt from attachment and execution, unless turned out to the officer to be taken on the attachment or execution, by the debtor:

  1. the debtor’s interest, not to exceed $2,500.00 in aggregate value, in a motor vehicle or motor vehicles;
  2. the debtor’s interest, not to exceed $5,000.00 in aggregate value, in professional or trade books or tools of the profession or trade of the debtor or a dependent of the debtor;
  3. a wedding ring;
  4. the debtor’s interest, not to exceed $500.00 in aggregate value, in other jewelry held primarily for the personal, family, or household use of the debtor or a dependent of the debtor;
  5. the debtor’s interest, not to exceed $2,500.00 in aggregate value, in household furnishings, goods or appliances, books, wearing apparel, animals, crops, or musical instruments that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor;
  6. growing crops, not to exceed $5,000.00 in aggregate value;
  7. the debtor’s aggregate interest in any property, not to exceed  $400.00 in value, plus up to $7,000.00 of any unused amount of the exemptions provided under subdivisions (1), (2), (4), (5) and (6) of this section;
  8. one cooking stove, appliances needed for heating, one refrigerator, one freezer, one water heater, sewing machines;
  9. ten cords of firewood, five tons of coals, or 500 gallons of oil;
  10. 500 gallons of bottled gas;
  11. one cow, two goats, 10 sheep, 10 chickens, and feed sufficient to keep the cow, goats, sheep, or chickens through one winter;
  12. three swarms of bees and their hives with their produce in honey;
  13. one yoke of oxen or steers or two horses kept and used for team work;
  14. two harnesses, two halters, two chains, one plow, and one ox yoke;
  15. the debtor’s interest, not to exceed $700.00 in value, in bank deposits or deposit accounts of the debtor;
  16. the debtor’s interest in self-directed retirement accounts of the debtor, including all pensions, all proceeds of and payments under annuity policies or plans, all individual retirement accounts, all Keogh plans, all simplified employee pension plans, and all other plans qualified under sections 401, 403, 408, 408A or 457 of the Internal Revenue Code. However, an individual retirement account, Keogh plan, simplified employee pension plan, or other qualified plan, except a Roth IRA, is only exempt to the extent that contributions thereto were deductible or excludable from federal income taxation at the time of contribution, plus interest, dividends, or other earnings that have accrued on those contributions, plus any growth in value of the assets held in the plan or account and acquired with those contributions. A Roth IRA is exempt to the extent that contributions thereto did not exceed the contribution limits set forth in section 408A of the Internal Revenue Code, plus interest, dividends, or other earnings on the Roth IRA from such contributions, plus any growth in value of the assets held in the Roth IRA acquired with those contributions. No contribution to a self-directed plan or account shall be exempt if made less than one calendar year from the date of filing for bankruptcy, whether voluntarily or involuntarily. Exemptions under this subdivision shall not exceed $5,000.00 for the purpose of attachment of assets by the office of child support pursuant to 15 V.S.A. § 799 ;
  17. professionally prescribed health aids for the debtor or a dependent of the debtor;
  18. any unmatured life insurance contract owned by the debtor, other than a credit life insurance contract;
  19. property traceable to or the debtor’s right to receive, to the extent reasonably necessary for the support of the debtor and any dependents of the debtor:
    1. Social Security benefits;
    2. veteran’s benefits;
    3. disability or illness benefits;
    4. alimony, support, or separate maintenance;
    5. compensation awarded under a crime victim’s reparation law;
    6. compensation for personal bodily injury, pain and suffering, or actual pecuniary loss of the debtor or an individual on whom the debtor is dependent;
    7. compensation for the wrongful death of an individual on whom the debtor was dependent;
    8. payment under a life insurance contract that insured the life of an individual on whom the debtor was dependent on the date of that individual’s death;
    9. compensation for loss of future earnings of the debtor or an individual on whom the debtor was or is dependent;
    10. payments under a pension, annuity, profit-sharing, stock bonus, or similar plan or contract on account of death, disability, illness, or retirement from or termination of employment.

HISTORY: Amended 1987, No. 233 (Adj. Sess.); 1999, No. 12 , § 1; 2001, No. 13 , § 1.

History

Source.

V.S. 1947, § 2303. P.L. § 2250. G.L. § 2439. 1917, No. 79 . 1915, No. 89 . P.S. § 2161. V.S. § 1805. 1894, No. 42 . 1888, No. 67 . 1886, No. 62 . 1884, No. 137 . 1882, No. 89 . R.L. § 1556. 1878, No. 55 . 1872, No. 48 . 1872, No. 49 . 1866, No. 39 . G.S. 47, §§ 9, 13. 1859, No. 19 . 1858, No. 19 . 1856, No. 18 . 1856, No. 19 . 1853, No. 33 , § 2. 1850, No. 11 . 1849, No. 11 . 1843, No. 8 . R.S. 42, §§ 9, 13. 1827, No. 7 , § 1. 1820, p. 25. 1818, p. p. 81. 1811, p. 27. R. 1797, p. 144, § 1. R. 1787, p. 60.

Revision note—

At the end of subdiv. (7), substituted “(6) of this section” for “(6) of this subsection” to correct an error in the reference.

This section was formerly set out as § 2739.

—Former § 2740. Former § 2740, relating to commitment of debtor, is set out as § 2741 of this title.

Amendments

—2001. Inserted “or excludable” preceding “from federal income taxation” in the second sentence of subdiv. (16).

—1999. Subsec. (16): Deleted “not to exceed $10,000.00 in aggregate value” following “the debtor’s interest” and added the language beginning “including all pensions” and ending “pursuant to 15 V.S.A. § 799 .”

—1987 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Estates of homestead exempt from attachment and execution, see 27 V.S.A. chapter 3.

ANNOTATIONS

Generally.

Where the legislature has intended to exempt property traceable to the receipt of certain benefits, it has said so explicitly. By omitting such language from the statute stating that workers’ compensation are not assignable, the legislature obviously left the question of a creditor’s right to various assets to the specific provisions set forth in the statute exempting certain articles from attachment and execution. Geraw v. Geraw, 2021 VT 45, — Vt. —, 257 A.3d 847, 2021 Vt. LEXIS 57 (Vt. 2021).

Actions against officer who takes exempt property.

Trover will lie against officer who took property upon an execution which was exempt from attachment. Sanborn v. Hamilton, 18 Vt. 590, 1846 Vt. LEXIS 94 (1846).

Where officer attached goods and sold same on an execution, and purchaser took the receipt of a third person in whose possession they were for the same, trespass could be sustained against officer, if property was not liable to attachment. Hart v. Hyde, 5 Vt. 328, 1833 Vt. LEXIS 47 (1833).

Alimony, support or maintenance.

Wife was not a “debtor” of husband in family court proceeding, and thus court’s decision to offset husband’s maintenance obligation against sum owed him by his wife due to property award in divorce did not violate terms of this section. Schwartz v. Haas, 169 Vt. 612, 739 A.2d 1188, 1999 Vt. LEXIS 225 (1999) (mem.).

Burden of proof.

If one claims property to be exempt he must show affirmatively all the facts necessary to bring his property within statute of exemption. Connell v. Fisk, 54 Vt. 381 (1882); Hooper v. Kennedy, 100 Vt. 314, 137 A. 194 (1927), same case 100 Vt. 376, 138 A. 778; Chamberlain v. Whitney, 65 Vt. 488, 27 A. 72, 1893 Vt. LEXIS 84 (1893); Rollins v. Allison, 59 Vt. 188, 10 A. 201, 1886 Vt. LEXIS 38 (1886).

Construction.

The basic policy underlying Vermont exemption of certain items from the bankruptcy estate is to promote a “fresh start” by allowing a debtor to keep property that the legislature deems essential to living and working; Vermont courts have long held that the exemption statutes are remedial in nature and ought to receive a liberal construction in favor of the debtor. In re Parrotte, 22 F.3d 472, 1994 U.S. App. LEXIS 8361 (2d Cir. 1994).

Section is remedial and should be construed liberally in favor of the debtor. State v. Roy, 201 A.3d 609, 2019 Me. LEXIS 18 (Me. 2019).

Damages for wrongful attachment.

Where defendant as constable attached plaintiff’s exempt ox and after executions were paid ox was returned measure of damages was the use of the ox less the expense of keeping ox; failure to raise crops by reason of being deprived of use of ox was not the natural and proximate result of the attachment. Luce v. Hoisington, 56 Vt. 436 (1884), same case 54 Vt. 428, 55 Vt. 341.

Deposits.

Trial court in post-judgment trustee process case correctly concluded that defendant’s funds in possession of insurance company were not “bank deposits” or “deposit accounts,” such that a portion of the funds would be exempt from attachment under governing statute, where insurance company’s obligation arose from contract with third party whom defendant successfully sued, and where defendant never deposited any sums with insurance company, and company never undertook any depositary relationship with defendant. Licursi v. Sweeney, 157 Vt. 599, 603 A.2d 342, 1991 Vt. LEXIS 231 (1991).

Exemption dependent on use.

Future intended use is as controlling on question of exemption as past use. Hooper v. Kennedy, 100 Vt. 314, 137 A. 194 (1927), same case 100 Vt. 376, 138 A. 778; Rowell v. Powell, 53 Vt. 302, 1880 Vt. LEXIS 115 (1880).

Whether typewriter was exempt from attachment as tool necessary for sustaining life was in circumstances of case, a mixed question of law and fact. Hooper v. Kennedy, 100 Vt. 314, 137 A. 194 (1927), same case 100 Vt. 376, 138 A. 778.

Horses and oxen.

Actual use of a horse is not essential to its exemption from attachment; it may be exempt when kept with an honest intention of using it for team work within a reasonable time. Ayotte v. State, 129 A.3d 285, 2015 Me. LEXIS 173 (Me. 2015); Rowell v. Powell, 53 Vt. 302, 1880 Vt. LEXIS 115 (1880); Hickok v. Thayer, 49 Vt. 372, 1877 Vt. LEXIS 23 (1877); State v. Roy, 201 A.3d 609, 2019 Me. LEXIS 18 (Me. 2019).

A colt, not exempt under statute as being kept for team work, was not exempt because it was received in exchange for a horse that was exempt. Connell v. Fisk, 54 Vt. 381, 1882 Vt. LEXIS 19 (1882).

Owner could make his selection before attachment. State v. Hayward, 156 A.3d 734, 2017 Me. LEXIS 35 (Me. 2017).

Debtor could select from his oxen and steers yoke he would keep exempt from attachment. Haskins v. Bennett, 41 Vt. 698, 1869 Vt. LEXIS 27 (1869).

Yoke of steer calves less than a year old were exempt, together with sufficient forage for keeping the same through the winter. Mundell v. Hammond, 40 Vt. 641, 1868 Vt. LEXIS 61 (1868).

Insurance.

Cash surrender value of life insurance policies is exempt property and is not included as part of bankruptcy estate. In re Gabelhart, 138 B.R. 425, 1992 Bankr. LEXIS 426 (Bankr. D. Vt. 1992).

Subsection (18) is free of any ambiguity; it clearly exempts life insurance policies and by implication any cash surrender value attached to it. In re Gabelhart, 138 B.R. 425, 1992 Bankr. LEXIS 426 (Bankr. D. Vt. 1992).

The “wildcard” exemption of subsection (7) clearly caps subsections (1), (2), (4), (5) and (6) but no other subsections, including subsection (18) dealing with life insurance policies. In re Gabelhart, 138 B.R. 425, 1992 Bankr. LEXIS 426 (Bankr. D. Vt. 1992).

Joint ownership of exempt article.

Where exemption of property from attachment is of specific things in numero, number of things exempt is not doubled when ownership is of an undivided half of each; thus, one who owns an undivided half of a yoke of oxen, of a yoke of steers, and of more than twenty sheep, is entitled to an exemption in either the oxen or the steers, and in ten of the sheep—not in both oxen and steers, and in twenty sheep. White v. Capron, 52 Vt. 634, 1880 Vt. LEXIS 198 (1880).

Money collected by officer.

Money due to a debtor as damages for attachment and detention of his property which was exempt from attachment, and money collected by an officer upon an execution issued upon a judgment recovered for such a trespass, could not be attached and held by trustee process. Stebbins v. Peeler, 29 Vt. 289, 1857 Vt. LEXIS 34 (1857).

Money collected by and officer on an execution could not be attached while his hands as property of creditor in execution. Conant v. Bicknell, 1 D. Chip. 50 (1791), same case N. Chip. 66; Prentiss v. Bliss, 4 Vt. 513, 1832 Vt. LEXIS 67 (1832).

Property necessary to debtor support.

Trial court did not err in finding that a tractor purchased with workers’ compensation funds was not reasonably necessary for the husband’s support, because while the husband argued that he needed it to plow his driveway, collect firewood, and otherwise maintain his property, the trial court considered and rejected these arguments, finding that while the tractor might be handy, it was not necessary for his support. Geraw v. Geraw, 2021 VT 45, — Vt. —, 257 A.3d 847, 2021 Vt. LEXIS 57 (Vt. 2021).

Purpose.

Purpose of this section is to afford debtors protection from the loss of property specified by legislature as essential to living and working. Licursi v. Sweeney, 157 Vt. 599, 603 A.2d 342, 1991 Vt. LEXIS 231 (1991).

Retirement plans.

Chapter 7 trustee’s objection to debtors’ claim of exemption of the corpus of several non-qualified annuities and an account pursuant to 12 V.S.A. § 2740(19)(J) , was preserved for review as to the grounds of the fund’s qualification exemption and the debtors’ need of the funds for their support. In re Delaney, 2001 Bankr. LEXIS 2306 (Bankr. D. Vt. Oct. 23, 2001).

Bankruptcy court found that all contributions a debtor made to a retirement plan, a not-for-profit hospital established under I.R.C. § 403(b), were excluded from the debtor’s bankruptcy estate, pursuant to 11 U.S.C.S. § 541(b)(7), and because the account was not part of the bankruptcy estate, the court did not have to decide if the debtor’s contributions were exempt from attachment and execution under 12 V.S.A. § 2470(16) . In re Leahy, 370 B.R. 620, 2007 Bankr. LEXIS 2200 (Bankr. D. Vt. 2007).

Sale of exempt property on extent against taxpayer.

Statute exempting certain property from attachment and execution did not embrace extents against delinquent collectors of town taxes. Hackett v. Amsden, 56 Vt. 201 (1883), same case 57 Vt. 432, 59 Vt. 553, 8 A. 737.

Specific property exempt from attachment.

Under this section, a debtor is entitled to exempt from attachment and execution such tools as may be necessary for sustaining life and one tool chest used in debtor’s trade kept for use by a mechanic; pursuant to 11 U.S.C. § 522(f) , a lien on those tools may be avoided when it impairs the exemption to which the debtor is entitled. In re Casey, 24 B.R. 48, 1982 Bankr. LEXIS 3456 (Bankr. D. Vt. 1982).

Exempt property includes: Domestic animals: Person’s only cow, Haskill v. Andros (1832) 4 Vt. 609, 119 A.L.R. 565; two year old heifer, not with calf, if debtor has no other cow, Freeman v. Carpenter (1838) 10 Vt. 433; Dow v. Smith (1835) 7 Vt. 465, same case 6 Vt. 519; nine sheep, Leavitt v. Jones (1882) 54 Vt. 423, 1882 Vt. LEXIS 27.

Farm goods: Forage for animals, Kimball v. Woodruf (1882) 55 Vt. 229; butter made from the milk of a debtor’s only cow, Leavitt v. Metcalf (1829) 2 Vt. 342; grindstone kept and used on farm, White v. Capron (1880) 52 Vt. 534, 2 A.L.R. 829; shovel, spade, dungfork, pitchforks, scythe and snath, potato hook, hog hook, common axe, broad axe, adz, hatchet and augers used as tools by one who lived rather isolated and did his own mending or “tinkering” of sleds, ox yokes, Garrett v. Patchin (1857) 29 Vt. 248, 2 A.L.R. 819, 840.

Business articles: Barber’s chair and footrest, Allen v. Thompson (1873) 45 Vt. 472, 2 A.L.R. 827; five carpets, five dozen knives and forks, seven large fluid lamps, twenty small fluid lamps, two fluid cans, five pails, twelve tumblers, eighteen goblets, owned by hotel keeper, Clark, v. Averill (1859) 31 Vt. 512, 1859 Vt. LEXIS 17.

Household furnishing: Cooking stove, Hart v. Hyde (1833) 5 Vt. 328; Crocker v. Spencer (1824) 2 D. Chip. 68; a time piece, Leavitt v. Metcalf (1829) 2 Vt. 342, 1829 Vt. LEXIS 63.

Specific property not exempt from attachment.

Good not exempt include: Household goods: A pianoforte, Dunlap v. Edgerton (1858) 30 Vt. 224, 63 A.L.R. 1029.

Business articles: Machine for shaving and splitting leather, operated either by hand, steam, or water, Henry v. Sheldon (1862) 35 Vt. 427; wood boot, hung up at the door of a boot and shoemaker’s shop as a sign of his trade, Wallace v. Barker (1836) 8 Vt. 440, 2 A.L.R. 840; printing press and types, Spooner v. Fletcher (1830) 3 Vt. 133, 2 A.L.R. 819, 834; portable machine called billy and jenny, used for spinning and manufacturing cloth, Kilburn v. Demming (1829) 2 Vt. 404, 2 A.L.R. 820, 832; a butcher’s only harness, used and needed by him in his business, Carty v. Drew (1874) 46 Vt. 346; potash kettles, Wetherby v. Foster (1832) 5 Vt. 136, 1832 Vt. LEXIS 86.

Food: Fresh beef, Leavitt v. Holbrook (1829) 5 Vt. 405, 1829 Vt. LEXIS 86.

Successive claims of exemption.

A judgment debtor may claim an exemption from attachment more than once, even against the same creditor, if debtor does not have funds in his possession at any one time in excess of amount of his exemption. Licursi v. Sweeney, 157 Vt. 599, 603 A.2d 342, 1991 Vt. LEXIS 231 (1991).

Trial court in post-judgment trustee process case erred in holding that defendant could not assert same attachment exemption in two separate actions, where both plain language and purpose of governing statute were at odds with this conclusion, and it would be irrational to allow specific exemptions against only the first of several attaching creditors. Licursi v. Sweeney, 157 Vt. 599, 603 A.2d 342, 1991 Vt. LEXIS 231 (1991).

Title of purchaser of exempt property.

Vendee of property exempt from attachment acquired a title to such property and its subsequent increase, good against creditors of vendor without any change of possession. Wolcott v. Hamilton, 61 Vt. 79, 17 A. 39, 1888 Vt. LEXIS 115 (1888).

Tools of the trade.

The Vermont legislature did not undertake to define the term “tools of the trade” in their exemption statute, and in the absence of such definition the court will look to the function or use of the property, rather than the size or type, to determine if it is a tool of the debtor’s trade. In re Parrotte, 22 F.3d 472, 1994 U.S. App. LEXIS 8361 (2d Cir. 1994).

The court is unwilling to exclude animals and other living creatures as tools of the trade for the purposes of bankruptcy exemptions and where the plaintiff’s bulls are actually used by the debtor as instruments which are necessary in carrying on his trade they may be classified as tools of the trade. In re Parrotte, 22 F.3d 472, 1994 U.S. App. LEXIS 8361 (2d Cir. 1994).

The bankruptcy court’s holding that the specific livestock exemption precludes a debtor from claiming a cow as a tool of the trade is unpersuasive when the same court has held that although there is a specific automobile exemption, automobiles may be claimed as tools of the trade under the general exemption provision. In re Parrotte, 22 F.3d 472, 1994 U.S. App. LEXIS 8361 (2d Cir. 1994).

“Tools of the trade” exemption.

Consideration of property to determine whether it falls within the “tools of the trade” exemption must be based on the function or use of the property in the debtor’s trade, rather than its size or type. In re Parrotte, 22 F.3d 472, 1994 U.S. App. LEXIS 8361 (2d Cir. 1994).

The lack of a specific reference to bulls in Vermont’s exemption relating to cattle does not preclude a “tools of the trade” exemption for bulls. In re Parrotte, 22 F.3d 472, 1994 U.S. App. LEXIS 8361 (2d Cir. 1994).

Where bulls were used by debtor-dairy farmers as necessary instruments in the ultimate process of producing milk for sale, the bulls came within Vermont’s “tools of the trade” exemption. In re Parrotte, 22 F.3d 472, 1994 U.S. App. LEXIS 8361 (2d Cir. 1994).

“Wildcard” exemption.

Debtor could exempt any proceeds from certain lawsuits he had pending, up to the limit imposed by the wild card exemption, because the debtor could use the wild card exemption to shield proceeds of a lawsuit from his creditors as such proceeds fell within broad definition of “any property;” and plaintiffs failed to demonstrate a factual or legal basis for denying the claimed wild card exemption based upon equitable grounds. In re Mick, 2003 Bankr. LEXIS 2452 (Bankr. D. Vt. Sept. 24, 2003).

The “wildcard” exemption of subsection (7) clearly caps subsections (1), (2), (4), (5) and (6) but no other subsections, including subsection (18) dealing with life insurance policies. In re Gabelhart, 138 B.R. 425, 1992 Bankr. LEXIS 426 (Bankr. D. Vt. 1992).

The term “any property” in subsection (7) means just that, any property, including real property; thus the “wildcard” exemption may be applied towards debtor in bankruptcy’s real property. In re Christie, 139 B.R. 612, 1992 Bankr. LEXIS 615 (Bankr. D. Vt. 1992).

Trial court in post-judgment trustee process case erred in denying defendant benefit of additional exemption for “unused amount” of other enumerated exemptions, even though attachment did not cover any of the enumerated items, where nothing on face of governing provision required ownership of property or interest for which exemption was claimed. Licursi v. Sweeney, 157 Vt. 599, 603 A.2d 342, 1991 Vt. LEXIS 231 (1991).

Cited.

Cited in In re Shuler, 117 B.R. 96, 1990 Bankr. LEXIS 1533 (Bankr. D. Vt. 1990), Hale v. Peddle, 160 Vt. 621, 648 A.2d 830 (1993); Bell v. Bell, 225 F.3d 203, 2000 U.S. App. LEXIS 23651 (2d Cir. 2000) (mem.).

Law Reviews —

For note, “Vermont’s New Debtor’s Exemption Statute”, see 13 Vt. L. Rev. 609 (1989).

Post-judgment executions in Vermont, see 2 Vt. L. Rev. 117 (1977).

§ 2741. Repealed. 1979, No. 67, § 9, eff. date, see note set out below.

History

Former § 2741. Former § 2741, relating to commitment of debtor, was derived from V.S. 1947, § 2304; P.L. § 2251; G.L. § 2440; P.S. § 2162; V.S. § 1806; R.L. § 1557; G.S. 47, § 14; R.S. 42, § 14; R. 1797, p. 145, § 2; R. 1787, p. 60; P.L. § 2251.

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

Annotations From Former § 2741

Right of execution against body.

Tort action.

Annotations From Former § 2741

Right of execution against body.

Plaintiff in an action of tort was not deprived of right of taking an execution against body of the judgment debtor because he omitted to issue his original writ against the body. Hunt v. Burdick, 42 Vt. 610, 1869 Vt. LEXIS 116 (1869).

Tort action.

Where a declaration “in a plea of the case” averred that the defendant without right or permission took wagon belonging to plaintiff from his possession and converted it to his own use, thereby “breaking and defacing” it, etc., and then contained an averment as to loss to plaintiff in the use of the wagon and cost of repairing it, etc., the form and gravamen justified an execution against the body of the judgment debtor. Hunt v. Burdick, 42 Vt. 610, 1869 Vt. LEXIS 116 (1869).

§ 2742. Security by creditor in case of doubt as to ownership or liability of chattels to attachment or execution.

When there is reasonable doubt as to the ownership of the goods or chattels or as to their liability to be taken on a writ of attachment or execution, the officer may require sufficient security to indemnify him or her for taking the same. If the creditor, his or her agent or attorney does not, within a reasonable time after the request, give the security to the officer, he or she may release them to the person from whom they were taken, at any time before the sale of the goods or chattels, and may take other goods or chattels, or, when permitted under section 2741 of this title, the body of the debtor, and for want thereof may return a non est inventus.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 75, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2305. P.L. § 2252. G.L. § 2441. P.S. § 2163. V.S. § 1807. R.L. § 1558. G.S. 47, § 10. R.S. 42, § 10. 1826, No. 8 . R. 1797, p. 152, § 11.

References in text.

The reference to “section 2741 of this title” is obsolete. Section 2741 was repealed pursuant to 1979, No. 67 , § 9.

Revision note—

This section was formerly set out as § 2741.

—Former § 2742. Former § 2742, relating to execution against municipal corporations, is set out as § 2743 of this title.

Reference to section “2740” of this title was changed to “2741” to conform reference to renumbering of such section.

Amendments

—1971 (Adj. Sess.). Rephrased and added reference to section 2740.

CROSS REFERENCES

Execution of judgments, see V.R.C.P. 69.

ANNOTATIONS

Refusal of sheriff to attach.

Where creditor put a writ of attachment against his debtor into hands of sheriff, and directed sheriff to attach certain property as property of debtor, and tendered to him a suitable bond of indemnity for so doing, and sheriff refused to attach the property, the creditor could not sustain an action against sheriff for such refusal, if property which sheriff was directed to attach was in fact property of a person other than debtor. Hutchinson v. Lull, 17 Vt. 133, 1843 Vt. LEXIS 146 (1843).

§ 2743. Executions against municipal corporations—To issue against goods or chattels of inhabitants.

When judgment is rendered against a county, town, village, school, or fire district, execution shall issue against the goods or chattels of the inhabitants of such county, town, village, school, or fire district, and may be levied and collected of the same.

History

Source.

V.S. 1947, § 2306. P.L. § 2253. G.L. § 2442. P.S. § 2164. V.S. § 1808. R.L. § 1559. G.S. 85, § 7. 1857, No. 37 , § 1. R.S. 78, § 4. R. 1797, p. 301, § 5. R. 1787, p. 31.

Revision note—

This section was formerly set out as § 2742.

—Former § 2743. Former § 2743, relating to executions, demand, is set out as § 2744 of this title.

Law Reviews —

Municipal debt adjustment and the Supreme Court, see 46 Yale L.J. 199, 201.

§ 2744. Demand; payment from municipal funds.

The officer who receives any such execution shall forthwith demand the amount thereof of the treasurer of the county, town, village, or district. Such treasurer shall pay the same with charges, if there are sufficient monies in his or her hands belonging to such county, town, village, or district.

History

Source.

V.S. 1947, § 2307. P.L. § 2254. G.L. § 2443. P.S. § 2165. V.S. § 1809. R.L. § 1560. G.S. 85, § 8. 1857, No. 37 , § 1. R.S. 78, § 5. R. 1797, p. 301, § 5. R. 1797, p. 302, § 7. R. 1787, p. 31.

Revision note—

This section was formerly set out as § 2743.

—Former § 2744. Former § 2744, relating to execution, levy, is set out as § 2745 of this title.

ANNOTATIONS

Sufficiency of demand.

A demand made upon the very person who was treasurer of town, though not made upon him as treasurer, but as an officer of the town (if made twelve days before levy of the execution), for payment of the execution, was sufficient. Walter v. Denison, 24 Vt. 551, 1852 Vt. LEXIS 83 (1852).

§ 2745. Levy when not paid.

If the execution or a part thereof remains unpaid, at the expiration of 12 days after making such demand, and not sooner, the officer shall levy and collect the same as therein directed.

History

Source.

V.S. 1947, § 2308. P.L. § 2255. G.L. § 2444. P.S. § 2166. V.S. § 1810. R.L. § 1561. G.S. 85, § 9. 1857, No. 37 , § 1. R.S. 78, § 6. R. 1797, p. 301, § 5. R. 1797, p. 302, § 7. R. 1787, p. 31.

Revision note—

This section was formerly set out as § 2744.

—Former § 2745. Former § 2745, relating to execution, payment, is set out as § 2746 of this title.

§ 2746. Payment by inhabitant whose property is taken.

An inhabitant whose goods or chattels are taken on such execution, may pay to the officer the amount of such execution and the charges thereon before their sale.

History

Source.

V.S. 1947, § 2309. P.L. § 2256. G.L. § 2445. P.S. § 2167. V.S. § 1811. R.L. § 1562. G.S. 85, § 10. 1857, No. 37 , § 1. R.S. 78, § 7.

Revision note—

This section was formerly set out as § 2745.

—Former § 2746. Former § 2746, relating to execution, recovery, is set out as § 2747 of this title.

§ 2747. Recovery against municipality.

Such inhabitant shall be entitled to recover against the county, town, village, or district, the sum so paid or levied on his or her goods or chattels, with 12 percent interest thereon, in an action of contract on this statute.

History

Source.

V.S. 1947, § 2310. P.L. § 2257. G.L. § 2446. P.S. § 2168. V.S. § 1812. R.L. § 1563. G.S. 85, § 11. 1857, No. 37 , § 1. R.S. 78, § 8. R. 1797, p. 301, § 5. R. 1797, p. 302, § 7. R. 1787, p. 31.

References in text.

The reference to “an action of contract” is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

Revision note—

This section was formerly set out as § 2746.

Subchapter 3. Real Estate; Levy, Sale, and Redemption

§ 2781. Real estate which may be taken.

Houses, lands, and tenements belonging to a person in his or her own right in fee, or for his or her own life, or the life of another, paying no rents for the same, or for years, or an unlimited time, paying rents for the same, and rights in equity of redeeming lands mortgaged, or in reversion or remainder, as well as his or her personal estate, shall stand charged with the debts and demands owing by such person, and may be taken in execution for the same at the election of the creditor, unless the debtor, his or her agent or attorney, exposes and tenders personal estate sufficient to satisfy the execution and the charges.

History

Source.

V.S. 1947, § 2312. P.L. § 2259. G.L. § 2448. P.S. § 2170. V.S. § 1814. R.L. § 1565. G.S. 47, § 15. R.S. 42, § 15. R. 1797, p. 146, § 3. R. 1787, p. 61.

CROSS REFERENCES

Estates of homestead exempt from attachment and execution, see 27 V.S.A. chapter 3.

ANNOTATIONS

Estate by entirety.

A wife’s estate and her husband’s interest in any tenancy by the entirety she may have, if validly created, are protected by the husband’s sole creditors. Rose v. Morrell, 128 Vt. 110, 259 A.2d 8, 1969 Vt. LEXIS 208 (1969).

Husband has no interest in either the fee or the usufruct of real estate deeded to himself and wife jointly, which can be taken in execution for his sole debts. Corinth v. Emery, 63 Vt. 505, 22 A. 618, 1891 Vt. LEXIS 142 (1891).

Estates subject to execution.

Except for equities of redemption, execution at law on real estate in this State was confined to legal estates under the provisions of this section. Noyes v. Noyes, 110 Vt. 511, 9 A.2d 123, 1939 Vt. LEXIS 173 (1939), 53 Harv. L. Rev. 1184 (1939).

Land conveyed by unrecorded deed.

In regard to real estate conveyed by an unrecorded deed, rule is same both as to attaching creditors and purchasers from the grantor; neither can acquire any title, as against the grantee, after notice of the conveyance or of circumstances which would naturally put a careful and prudent man upon inquiry in a direction where he might learn the real state of the title. Hart v. Farmers & Mechanics' Bank, 33 Vt. 252, 1860 Vt. LEXIS 104 (1860).

In case of a mere sale and conveyance of land by absolute owner, without notice, either actual or constructive, or any change of possession, land was still subject to levy or attachment upon debts of vendor. Hart v. Farmers & Mechanics' Bank, 33 Vt. 252, 1860 Vt. LEXIS 104 (1860).

If attaching creditor had notice after his attachment but before levy that land attached did not belong to the debtor, though record title was in debtor, such notice, if true, would be sufficient to protect equitable interest of real owner against the levy. Hackett v. Callender, 32 Vt. 97, 1859 Vt. LEXIS 72 (1859).

Land of one of several debtors.

Each debtor in an execution was liable for whole debt, in solido; and officer having execution to levy was not bound to regard any equities subsisting between debtors themselves, or between debtors and their other creditors. Warren v. Edgerton, 22 Vt. 199, 1850 Vt. LEXIS 14 (1850).

Land subject to trust.

House subject to parol contract of sale which was occupied by purchaser for four years without payment of rent was not attachable by creditors of original owners, where purchase price had been paid since owners held title in trust for purchaser. Holmes v. Caden, 57 Vt. 111, 1884 Vt. LEXIS 6 (1884).

One who had record title of real estate was in fact but a trustee thereof, his creditors, though ignorant of the trust, could acquire no right to land by attachment or levy, as against cestui que trust; and a court of chancery, in cases where trustee was in equity bound to convey property to cestui que trust, would decree a conveyance to latter from levying creditor. Hart v. Farmers & Mechanics' Bank, 33 Vt. 252, 1860 Vt. LEXIS 104 (1860).

Levy on real property when personal property sufficient.

Where an officer extended an execution on personal property, when the amount of the execution was offered to him or upon real estate, when the debtor exposed sufficient personal property, he was liable to any one aggrieved thereby. Eastman v. Curtis, 4 Vt. 616, 1832 Vt. LEXIS 85 (1832).

Meeting house of religious society.

A meeting house was not liable to be taken in execution for debts of religious society. Administrator of Bigelow v. Congregational Soc’y of Middlebury, 11 Vt. 283 (1839), same case 15 Vt. 370.

Mortgagee’s interest in mortgaged land.

Mortgagee had no attachable interest in lands mortgaged. Barrett v. Sargeant, 18 Vt. 365, 1846 Vt. LEXIS 54 (1846).

§ 2782. Real estate defined.

The words “real estate” as used in this chapter shall mean such lands, tenements, rights, and estates as are made liable to execution by section 2781 of this title.

History

Source.

V.S. 1947, § 2313. P.L. § 2260. G.L. § 2449. P.S. § 2171. V.S. § 1815. R.L. § 1566. G.S. 47, § 16. R.S. 42, § 16.

§ 2783. Officer may lodge copy in clerk’s office.

When the officer holding an execution for collection is directed by the creditor, his or her agent or attorney, to levy the same on the real estate of the debtor, he or she may lodge in the office where by law a deed of such real estate is required to be recorded, a certified copy of the execution, with a certificate thereon, under his or her hand, stating that he or she is directed to levy the same on such real estate, designating the same as it would be described in case of the attachment of real estate.

History

Source.

V.S. 1947, § 2314. P.L. § 2261. G.L. § 2450. P.S. § 2172. V.S. § 1816. R.L. § 1567. G.S. 47, § 17. R.S. 42, § 50.

CROSS REFERENCES

Attachment of real estate, see subch. 3 of ch. 123 of this title.

ANNOTATIONS

Levy upon direction of creditor.

It was not intention of legislature to make it duty of officer to levy upon real estate by leaving a copy of execution at clerk’s office except when directed to do so by creditor. Bank of Newbury v. Baldwin, 31 Vt. 311, 1858 Vt. LEXIS 136 (1858).

§ 2784. Estate held five months.

The real estate thus designated shall be held to satisfy such execution for the term of five months from the time of lodging the copy thereof, as provided in section 2783 of this title. When encumbered by previous attachments, the lien thus created shall remain, after the removal of such encumbrance, as if the estate had been attached on mesne process by the creditor in such execution.

History

Source.

V.S. 1947, § 2315. P.L. § 2262. G.L. § 2451. P.S. § 2173. V.S. § 1817. R.L. § 1568. G.S. 47, § 18. R.S. 42, § 51.

§ 2785. Estate in joint tenancy.

When the real estate of a debtor is held in joint tenancy, coparcenary, or tenancy in common, with the real estate of other persons, the officer may levy the execution on such debtor’s undivided interest in such real estate, and sell the same as other real estate may be sold.

History

Source.

V.S. 1947, § 2316. P.L. § 2263. G.L. § 2452. P.S. § 2174. V.S. § 1818. R.L. § 1583. G.S. 47, § 32. R.S. 42, § 29. R. 1797, p. 150, § 7.

ANNOTATIONS

False description of estate in levy.

Levy of an execution upon an undivided portion of a piece of land, which the debtor was described as owning in fee, was invalid where officer gave no reason, in his return, for so levying it. Edwards v. Allen, 27 Vt. 381, 1855 Vt. LEXIS 42 (1855).

Levy upon entire estate of debtor.

Creditor must levy upon whole estate which debtor has in premises; if he carves out a less estate, leaving a reversion in debtor, levy will be void as against debtor and no title will pass under it. Howe v. Blanden, 21 Vt. 315, 1849 Vt. LEXIS 33 (1849).

Levy upon interest of tenant in common.

A levy upon an undivided half of a portion of land held by the debtor in common with another person, describing it by metes and bounds, was not void, but only voidable, at the election of other tenant. Howe v. Blanden, 21 Vt. 315, 1849 Vt. LEXIS 33 (1849).

Levy of execution upon a part of interest of one tenant in common should be upon an aliquot portion of tenant’s entire interest, and where not so made, but upon tenant’s entire interest in a portion of estate described by metes and bounds, it was void. Smith v. Benson, 9 Vt. 138, 1837 Vt. LEXIS 11 (1837).

Levy upon interest of one tenant in common should be made upon a certain undivided portion of whole. Galusha v. Sinclear, 3 Vt. 394, 1831 Vt. LEXIS 26 (1831).

One tenant in common had no lien for repairs made upon common premises as against levy of a creditor of other tenant in common. Galusha v. Sinclear, 3 Vt. 394, 1831 Vt. LEXIS 26 (1831).

Tenancy by the curtesy.

Interest of husband as tenant by the curtesy may be attached and may be levied on by execution. Hyde v. Barney, 17 Vt. 280, 1845 Vt. LEXIS 28 (1845).

§ 2786. Sale of real estate on execution; public auction.

When an execution is levied upon real estate, the same or an undivided fractional part thereof sufficient to satisfy the execution with costs shall be sold at public auction by the officer to the highest bidder, in satisfaction of the execution, either upon such real estate or at some public place in the town where it is situated or, if situated in an unorganized town or gore, in an adjoining town.

History

Source.

V.S. 1947, § 2317. P.L. § 2264. G.L. § 2453. P.S. § 2175. V.S. § 1819. 1886, No. 65 , § 1. 1884, No. 139 , §§ 1, 2.

§ 2787. Notice, advertisement, and sale.

The officer levying the execution shall give the debtor at least 60 days’ notice of the time and place of sale in writing, served upon him or her, within or outside the State, either (1) by delivery in hand personally or (2) by registered or certified mail, return receipt requested, with instructions to deliver to addressee only. The officer shall also cause an advertisement of the time and place of sale to be published three weeks successively next before the time of sale, in one or more newspapers published in the county where the land lies or, if a newspaper is not published therein, in some newspaper published in an adjoining county. Unless the execution with costs and charges thereon, including expense of advertising, is paid, the officer shall proceed with the sale.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 76, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2318. P.L. § 2265. G.L. § 2454. P.S. § 2176. V.S. § 1820. 1886, No. 65 , § 2. 1884, No. 139 , § 3.

Amendments

—1971 (Adj. Sess.). Section amended generally.

§ 2788. Notice to subsequent attaching or levying creditor.

When the real estate levied upon is subject to a subsequent attachment or levy, the officer shall give notice of such sale to the subsequent attaching or levying creditor in the same manner as provided for notice to the execution debtor in section 2787 of this title.

History

Source.

V.S. 1947, § 2319. P.L. § 2266. G.L. § 2455. P.S. § 2177. V.S. § 1821. 1894, No. 162 , § 1762.

§ 2789. Adjournment; manner of sale.

For good cause, the officer may postpone such sale for a time not exceeding seven days, and so from time to time until it is completed, giving notice of such adjournment by public proclamation at the time and place appointed for the sale. Such real estate, or an undivided fractional part thereof sufficient to satisfy the execution with costs, shall be sold, and if, in the opinion of the officer, it is divisible, shall be sold in separate tracts and parcels.

History

Source.

V.S. 1947, § 2320. P.L. § 2267. G.L. § 2456. P.S. § 2178. V.S. § 1822. 1884, No. 139 , § 4.

§ 2790. Officer’s deed to purchaser; effect.

The officer selling such real estate, if the same is not redeemed, shall make, execute, and acknowledge a sufficient deed thereof to the purchaser, and deliver the same to him or her as hereinafter provided. When the deed is recorded in the office where by law a deed of real estate is required to be recorded, it shall give the purchaser all the debtor’s right, title, and interest to the real estate sold.

History

Source.

V.S. 1947, § 2321. P.L. § 2268. G.L. 2457. P.S. § 2179. V.S. § 1823. 1884, No. 139 , §§ 2, 5.

ANNOTATIONS

Liability of purchaser for purchase price.

Fact that real estate sold upon execution at public auction had, between date of sale and tendering of officer’s deed, gone upon a decree of foreclosure, did not excuse purchaser from payment of purchase price, where existence of mortgage, but not its foreclosure, was disclosed at sale. Stearns v. Edson, 63 Vt. 259, 22 A. 420, 1891 Vt. LEXIS 98 (1891).

§ 2791. Return of execution.

The officer commencing proceedings for sale on execution of real estate or the right to collect and receive rents, issues, and profits thereof, may make such sale, although the return day of the execution has passed, and shall return the execution within five business days after the sale. A failure to make such return shall not affect the purchaser’s title to the property.

HISTORY: Amended 2017, No. 11 , § 16.

History

Source.

V.S. 1947, § 2322. P.L. § 2269. G.L. § 2458. P.S. § 2180. V.S. § 1824. 1884, No. 139 , § 5.

Amendments

—2017. Inserted “business” following “within five” in the first sentence.

§ 2792. Form of deed; costs.

The deed executed by the officer of lands sold on execution, shall be taxed as a part of the costs on the execution at one dollar, and shall be substantially in the following form:

KNOW ALL MEN BY THESE PRESENTS, That, whereas, an execution against of in the county of at the suit of of in the county of was by me, sheriff of the county of , on the day of 19 , levied on (); and whereas, on the day of 19 , all the estate, right, title, interest and property of said in the premises aforesaid were by me, the said sold at public auction for the satisfaction of such execution, to of in the county of , who was the highest bidder, for the sum of dollars, which the said has since fully paid to me; here describe the premises Now, by force and virtue of the law in such cases made and provided, I, the said , in consideration of the sum of money paid unto me as aforesaid, do, by these presents, bargain, sell and assign, and set over unto the said heirs and assigns forever, all the estate, right, title, interest, property and inheritance of the said in and to such premises and appurtenances at the time of the levy thereon (or of the attachment, as the case may be). To have and to hold such premises and appurtenances to the said , heirs and assigns forever.

Click to view

In witness, etc.

History

Source.

V.S. 1947, § 2323. P.L. § 2270. G.L. § 2459. P.S. § 2181. V.S. § 1825. 1884, No. 139 , § 6.

§ 2793. Form where attached on original writ.

When such real estate was attached on the original writ, the officer shall insert in the deed of sale the time of such attachment and vary the deed accordingly.

History

Source.

V.S. 1947, § 2324. P.L. § 2271. G.L. § 2460. P.S. § 2182. V.S. § 1826. 1884, No. 139 , § 7.

§ 2794. Execution upon real estate; homestead a part.

When an execution is levied upon real estate of which the debtor’s homestead is a part or upon that part of a homestead in excess of $125,000.00 in value, the location and boundaries of the homestead shall be ascertained before the sale and set out in the manner provided for the levy of execution upon real estate whereof a homestead forms a part.

HISTORY: Amended 1967, No. 287 (Adj. Sess.), § 6, eff. July 1, 1968; 1995, No. 186 (Adj. Sess.), § 24f, eff. Jan. 1, 1997; 2013, No. 194 (Adj. Sess.), § 4, eff. June 17, 2014.

History

Amendments

—2013 (Adj. Sess.). Substituted “$125,000.00” for “$75,000.00” following “homestead in excess of”.

—1995 (Adj. Sess.) Substituted “$75,000.00” for “$5,000.00”.

—1967 (Adj. Sess.). Increased exemption from $2,500 to $5,000.

CROSS REFERENCES

Estates of homestead, see 27 V.S.A. chapter 3.

§ 2795. When encumbered by mortgage.

When a right of redemption in mortgaged lands is taken and sold on execution, the officer shall ascertain and state at the time of sale the value of the encumbrance, or the amount of the mortgage debt, when it can be ascertained, and state the same in his or her return on the execution.

History

Source.

V.S. 1947, § 2326. P.L. § 2273. G.L. § 2462. P.S. § 2184. V.S. § 1828. 1884, No. 139 , § 9.

§ 2796. Redemption—Bond; writ of possession; accounting by purchaser for rents and profits.

When real estate is sold on execution, the debtor or person claiming under him or her may redeem the same at any time within six months from the date of such sale. He or she shall file a bond within 14 days after such sale with the clerk of the court or magistrate who issued such execution, to the purchaser, in a penal sum that the clerk or magistrate shall order, conditioned in case he or she does not redeem the property to pay the purchaser the fair rents and profits of such premises and commit no waste on the same, which bond shall be approved by the clerk or magistrate. When the debtor fails to file the bond as provided for in this section, the purchaser may have his or her writ of possession from the clerk or magistrate, and may enter and take possession and manage such real estate in a good husbandlike manner. If the defendant in such action shall redeem the same, the purchaser shall account for the fair value of the rents and profits thereof, until the same shall be redeemed.

HISTORY: Amended 2017, No. 11 , § 17.

History

Source.

V.S. 1947, § 2327. P.L. § 2274. G.L. § 2463. 1908, No. 62 . P.S. § 2185. V.S. § 1829. 1894, No. 162 , § 1770. 1890, No. 39 , § 1. 1888, No. 52 . 1886, No. 65 , § 3. 1884, No. 139 , § 10. R.L. § 1575. G.S. 47, §§ 25, 26. R.S. 42, §§ 21, 22. R. 1797, p. 147, § 5. 1794, p. 63.

Amendments

—2017. Substituted “14” for “ten” preceding “days” in the second sentence, “provided for in this section” for “aforesaid” preceding “, the purchaser” in the third sentence, and made gender-neutral changes throughout the section.

ANNOTATIONS

Costs.

There was no provision of law requiring payment of costs by debtor on a writ of possession. Rogers v. Wiley, 107 Vt. 117, 176 A. 306, 1935 Vt. LEXIS 152 (1935).

Rents during six-month period.

Purchaser of real estate at an execution sale was not entitled to rent thereof during the six months allowed debtor for redeeming same. Sowles v. Hanley, 64 Vt. 412, 23 A. 725, 1892 Vt. LEXIS 61 (1892).

Tender and payment within six-month period.

When execution is levied upon land title will become absolute in creditor unless debtor, or his legal representative, tender and pay to clerk or justice who issued execution amount due upon execution, with costs of levy, within six months allowed by statute for redemption; it was not sufficient that money was tendered to creditor personally, and not accepted by him. Chandler v. Sawtell, 22 Vt. 318, 1850 Vt. LEXIS 34 (1850).

§ 2797. Rents, profits, and waste; appraisal; collection.

When the parties cannot agree as to the value of the rents and profits under section 2796 of this title, either party may apply to the clerk of the court or magistrate who issued the execution, if he or she is in office and not disqualified and if not in office or if disqualified, to any other justice or to a district judge in the county where the land lies, who could lawfully judge between the parties. On notice to the other party, he or she shall appoint three disinterested freeholders resident in the town in which the land or the greater part thereof lies, to act as appraisers, to appraise such rents and profits. They shall be sworn to the faithful performance of their duties and shall, on notice to the parties, appraise the rents and profits of the premises and also determine if any waste has been committed thereon, and return their appraisal, including damages for waste, if any has been committed, to the clerk or magistrate who appointed them; and, if he or she accepts the same, it shall be final between the parties. When the defendant has given the bond and remained in possession, the amount so found due shall be recoverable in an action founded on the bond. If the purchaser has gone into possession, the damages shall be deducted from the money to redeem the same.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967.

History

Source.

V.S. 1947, § 2328. P.L. § 2275. G.L. § 2464. 1908, No. 62 . P.S. § 2186. V.S. § 1830. 1890, No. 39 , § 2. R.L. §§ 1579-1582. G.S. 47, §§ 29-31. R.S. 42, §§ 26-28. R. 1797, p. 148, § 6.

Amendments

—1965. Substituted “district judge” for “municipal judge” in the first sentence.

ANNOTATIONS

Defenses.

In case on statute to recover mesne profits of land levied upon by execution, defendant was not estopped from showing that he had no title to or interest in land. Bowne v. Graham, 2 Tyl. 418 (Vt. Feb. 1, 1803).

§ 2798. Redemption when purchaser in possession; bond; writ of possession when debtor remains in possession.

When the purchaser has gone into possession and the debtor wishes to redeem the premises, he or she may tender to the purchaser the amount of the purchase money less the sum due for the rents and profits, with a bond in such sum as the clerk or magistrate shall adjudge reasonable, conditioned to pay what shall be found due the purchaser over the sum tendered and the rents and profits aforesaid, and may have immediate possession of the premises on the tender of the money and bond aforesaid. When the debtor gives his or her bond and remains in possession of the premises, the purchaser may have his or her writ of possession for such premises at the expiration of six months.

History

Source.

V.S. 1947, § 2329. P.L. § 2276. G.L. § 2465. P.S. § 2187. V.S. § 1831. 1890, No. 39 , §§ 3, 4.

§ 2799. Costs.

When the debtor fails to redeem such premises, the expenses of such appraisal of such rents, profits, and damages shall be paid by the debtor. When the purchaser has gone into possession of the land and the debtor redeems, if the court finds the tender sufficient, the debtor shall recover his or her costs. In case the tender is not sufficient, the costs shall be in the discretion of the clerk or magistrate who appointed the appraisers. The costs of the appraisal shall be the same as costs before a justice, and the clerk or magistrate may issue execution for the same. In case the debtor remains in possession and gives the bond before mentioned, the costs may be collected on such bond. The fees of the commissioners shall be the same as the appraisers in other cases under the statute.

History

Source.

V.S. 1947, § 2330. P.L. § 2277. G.L. § 2466. P.S. § 2188. V.S. § 1832. 1890, No. 39 , §§ 5, 6.

§ 2800. Certificate of redemption.

When the debtor redeems the premises, the clerk or magistrate shall give him or her a certificate of such redemption, at his or her expense, which, if recorded on the margin of the record of such sale, shall be full evidence that such land has been redeemed.

History

Source.

V.S. 1947, § 2283. V.S. 1947, § 2331. P.L. § 2278. G.L. § 2467. P.S. § 2189. V.S. § 1833. 1890, No. 39 , § 7.

§ 2801. Levy on rents, issues, and profits—What may be taken.

The rents, issues and profits of real estate leased for life or years or leased to a person, his or her heirs and assigns perpetually, or so long as the lessee, his or her heirs and assigns perform the services or render the rents reserved, may be taken on execution by a creditor of the person entitled to receive the same.

History

Source.

V.S. 1947, § 2332. P.L. § 2279. G.L. § 2468. P.S. § 2190. V.S. § 1834. 1894, No 45, § 1. R.L. § 1587. G.S. 47, § 36. R.S. 42, § 33. 1835, No. 10 , § 1. R. 1797, p. 150, § 8.

§ 2802. Officer to lodge copy in clerk’s office; notice to tenant.

The officer levying an execution on the rents, issues, and profits mentioned in section 2801 of this title shall lodge in the office where by law a deed of the real estate yielding or paying such rents, issues, and profits is required to be recorded, a certified copy of the execution, stating that he or she is directed to levy the same on the rents, issues, and profits of the real estate, and designating such real estate as in attachment. Within ten days thereafter, he or she shall serve a written notice of such levy upon the tenant in possession of the described real estate, by delivering the same to him or her personally or leaving it at his or her last and usual place of abode.

History

Source.

V.S. 1947, § 2333. P.L. § 2280. G.L. § 2469. P.S. § 2191. V.S. § 1835. 1894, No. 45 , § 2. R.L. § 1588. G.S. 47, § 37. R.S. 42, § 34. 1835, No. 10 , § 1. R. 1797, p. 150, § 8.

§ 2803. Return of tenant.

Within 15 days from the time he or she receives such notice, the tenant in possession shall make a written return under oath to such officer, stating therein the time for which he or she claims the right to hold such real estate, the amount of the rents, issues, and profits he or she yields or pays or has agreed to yield or pay the use thereof, to whom, when, and in what manner the same are payable and the amount, if any, then due.

History

Source.

V.S. 1947, § 2334. P.L. § 2281. G.L. § 2470. P.S. § 2192. V.S. § 1836. 1894, No. 45 , § 3. R.L. § 1589. G.S. 47, § 38. R.S. 42, § 35. 1835, No. 10 , § 4.

§ 2804. Sale; notice; disposition of proceeds.

After receiving such return, the officer may sell at public auction the debtor’s right, title, or interest to collect and receive such rents, issues, and profits, in whole or part satisfaction of such execution. Notice of the sale shall be given in the same time and manner and the sale made as sales of real estate on execution, except that the officer shall sell the right to collect and receive such rents, issues, and profits for the least time sufficient to satisfy such execution with costs. If the right to collect and receive the rents, issues, and profits for the full time they are payable does not sell for enough to satisfy the execution with costs, the officer shall return the same satisfied in part only.

History

Source.

V.S. 1947, § 2335. P.L. § 2282. G.L. § 2471. P.S. § 2193. V.S. § 1837. 1894, No. 35 , § 4.

§ 2805. Conveyance; tenant shall attorn.

Within five days from such sale, if the purchase price thereof is not paid to the officer by the debtor or person claiming under him or her, such officer shall make, execute, acknowledge, and deliver to the purchaser a written instrument conveying the right to collect and receive the rents, issues, and profits of the designated real estate for the time sold, which shall operate as a full and complete conveyance and assignment to the purchaser, of the rents, issues, and profits due and to become due for the time for which the same were sold and as specified in such conveyance. The tenant in possession shall attorn to the purchaser, and yield and pay to him or her such rents, issues, and profits. On failure to do so, the purchaser may maintain, in his or her own name, any action against the tenant, either at law or in equity, that the judgment debtor might have maintained to collect the same, eject the tenant, or otherwise.

History

Source.

V.S. 1947, § 2336. P.L. § 2283. G.L. § 2472. P.S. § 2194. V.S. § 1838. 1894, No. 45 , § 5. R.L. § 1591. G.S. 47, § 40. R.S. 42, § 37. 1835, No. 10 , § 2. R. 1797, p. 150.

§ 2806. Redemption by debtor.

At any time after such conveyance is executed to him or her, the debtor may pay the purchaser the purchase price with interest and all costs sustained by him or her, less the rents, issues, and profits he or she has received. Such purchaser’s right to collect and receive such rents, issues, and profits thereupon shall cease, and on request of the debtor and at his or her expense, the purchaser shall execute to him or her an instrument in writing, relinquishing, and surrendering all right to the subsequent rents, issues, and profits. When the time for which the right to collect and receive such rents, issues, and profits was sold, expires, or when the debtor pays the balance due as provided in this section, the purchaser, if in possession of the real estate, shall surrender the same to the person entitled thereto.

History

Source.

V.S. 1947, § 2337. P.L. § 2284. G.L. § 2473. P.S. § 2195. V.S. § 1839. 1894, No. 45 , § 6. R.L. § 1591. G.S. 47, § 41. R.S. 42, § 38. 1835, No. 10 , § 5. R. 1797, p. 150, § 8.

§ 2807. Failure of tenant to make return; sale; writ of possession.

When the tenant in possession does not, within 15 days from the time he or she receives the notice specified in section 2802 of this title, make sworn return to the officer as therein required, such officer may sell the real estate so in possession of the tenant, or sufficient to satisfy the execution, as the property of the debtor, discharged from any right, title, or interest of such tenant therein, and as real estate may be sold under this chapter. The officer to whom a writ of possession is issued after such sale, by virtue thereof, may remove the tenant from such real estate and put the purchaser in possession.

History

Source.

V.S. 1947, § 2338. P.L. § 2285. G.L. § 2474. P.S. § 2196. V.S. § 1840. 1894, No. 45 , § 7.

§ 2808. Fraudulent conveyance of real estate—Application to Superior Court by levying creditors.

When an execution has been levied upon real estate as provided in this chapter and any part of the same has been conveyed away or encumbered or is held in fraud of the levying creditor’s rights, he or she may maintain an action in the Superior Court for the satisfaction of his or her execution out of the real estate so conveyed or held, by a sale thereof, or otherwise, under the order of such court. Any number of creditors, though severally interested, may join in such action.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2346. P.L. § 2293. G.L. § 2482. 1910, No. 88 . P.S. § 2204. V.S. § 1848. 1888, No. 68 , § 1.

Revision note—

In the section heading, reference to “county court” was changed to “superior court”.

Reference to “court of chancery” was changed to “county court” to conform reference to merger of law and equity pursuant to 1971, No. 185 (Adj. Sess.), § 236. See note set out under 4 V.S.A. § 219 .

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

ANNOTATIONS

Adequacy of consideration.

If a husband’s debt to his wife is an honest one, it is not fraudulent in law for him to prefer to secure her claim over those of other creditors. Rose v. Morrell, 128 Vt. 110, 259 A.2d 8, 1969 Vt. LEXIS 208 (1969).

Where husband had conveyed away his equity in real property as security for a bail bond, reconveyance, upon discharge of bond, to husband and wife married after husband’s conveyance as tenants by the entirety was not in fraud of husband’s creditors where wife’s interest was in consideration of prior loans and advancement to husband. Rose v. Morrell, 128 Vt. 110, 259 A.2d 8, 1969 Vt. LEXIS 208 (1969).

Burden of proof.

Subsequent creditor’s burden of proof on issue whether transfer to prior creditor was fraudulent could not be discharged by suspicious circumstances. Rose v. Morrell, 128 Vt. 110, 259 A.2d 8, 1969 Vt. LEXIS 208 (1969).

One who seeks to set aside a conveyance on the ground that it was fraudulent must establish that fact; the law in no case presumes fraud—the presumption is in favor of innocence. Vilas v. Seith, 108 Vt. 18, 183 A. 854, 1936 Vt. LEXIS 142 (1936).

Where conveyance without valuable consideration was attacked as being fraudulent as to existing creditors, burden was upon those who sought to sustain such conveyance to prove that grantor retained other property or means adequate to discharge his obligations. Vilas v. Seith, 108 Vt. 18, 183 A. 854, 1936 Vt. LEXIS 142 (1936).

Constructive fraud.

Constructive fraud will not void a transferee’s interest in property. Rose v. Morrell, 128 Vt. 110, 259 A.2d 8, 1969 Vt. LEXIS 208 (1969).

Elements to cause of action.

To avoid a voluntary conveyance that was prior to a claim, fraud must be actual and intentional. Rose v. Morrell, 128 Vt. 110, 259 A.2d 8, 1969 Vt. LEXIS 208 (1969).

A voluntary conveyance is fraudulent in law as to existing creditors for whom ample provision has not been made, and cause of action and right to maintain a suit under this section is made out, if conveyance was voluntary, if adequate provision was not then made for payment of existing creditors, and if ultimately there is a deficiency of assets to pay claims of such creditors, although no actual fraud was intended by parties to conveyance. Vilas v. Seith, 108 Vt. 526, 189 A. 862 (1937), same case 108 Vt. 18, 183 A. 854.

Intent to defraud.

Where husband, in 1954, deeded property as security to parties providing bail to obtain his release from arrest in his second wife’s action for child support, and such parties conveyed the property to husband and his third wife as tenants by the entirety in 1958 upon discharge of the bail bond, and plaintiff parents of second wife were awarded custody of the child involved in their daughter’s support action and were also awarded a “compensatory fine” in a proceeding against husband, decree pro confesso against husband in plaintiffs’ action against husband and his third wife in aid of an execution held by plaintiffs did not establish fraudulent intent on husband’s part as to interest of his third wife in the property. Rose v. Morrell, 128 Vt. 110, 259 A.2d 8, 1969 Vt. LEXIS 208 (1969).

Plaintiff subsequent creditors of husband with notice of prior interest of husband’s wife were in no position to complain that they were hindered, delayed or defrauded by tenancy in entirety created in husband and wife shortly after wife’s right against husband accrued and long before plaintiffs’ right against husband accrued. Rose v. Morrell, 128 Vt. 110, 259 A.2d 8, 1969 Vt. LEXIS 208 (1969).

Where wife gave valuable consideration for conveyance to her of an interest in husband’s property, fraudulent intent on husband’s part did not, in itself, void her estate as both grantor and grantee must have fraudulent intent to void the conveyance where valuable consideration is given. Rose v. Morrell, 128 Vt. 110, 259 A.2d 8, 1969 Vt. LEXIS 208 (1969).

To establish that conveyance was fraudulent it is not always necessary that an intent to defraud be shown; a transaction may constitute a fraud in law though not in fact. Vilas v. Seith, 108 Vt. 18, 183 A. 854, 1936 Vt. LEXIS 142 (1936).

Conveyance without valuable consideration was fraudulent in law as to existing creditors for whom no ample provision had been made, and good faith of parties thereto was immaterial. Vilas v. Seith, 108 Vt. 18, 183 A. 854, 1936 Vt. LEXIS 142 (1936).

Levy as condition for action.

Section was merely declaratory of equitable rule that a judgment creditor could not maintain a suit in equity in aid of an execution until he had perfected his right at law as far as he could; and in order to do that, when he sought satisfaction of his execution out of real estate that had been conveyed in fraud of his rights, he must have acquired a specific lien on it by levy of his execution. Rowley v. Shepardson, 87 Vt. 57, 87 A. 528 (1913), same case 83 Vt. 167, 74 A. 1002, 85 Vt. 266, 81 A. 917, 90 Vt. 25, 96 A. 374, 91 Vt. 8, 99 A. 228.

It was unnecessary under § 2783 of this title that a setoff should have been made before equity could interfere; it was only necessary that plaintiffs should have levied upon land, and that part of it should have been conveyed away in fraud of their rights. Corey v. Morrill, 71 Vt. 51, 42 A. 976, 1898 Vt. LEXIS 23 (1898).

Presumptions.

Neither chancellor nor Supreme Court could presume fraudulent intent on part of wife to whom an interest in husband’s property was conveyed. Rose v. Morrell, 128 Vt. 110, 259 A.2d 8, 1969 Vt. LEXIS 208 (1969).

Review.

In suit in equity to set aside a conveyance of real estate as being in fraud of the rights of the plaintiff, a judgment creditor of the grantor, where chancellor found that conveyance was made in fulfillment of a parol trust, such finding was a conclusion of law, the correctness of which depended upon facts previously found, and Supreme Court was not precluded from examining such findings for purpose of determining legal situation resulting therefrom. Vilas v. Seith, 108 Vt. 526, 189 A. 862 (1937), same case 108 Vt. 18, 183 A. 854.

§ 2809. Proceedings to extend lien.

Within the five months during which real estate is held to satisfy an execution levied upon the same, the creditor shall cause a copy of his or her complaint, attested by the officer serving the same, to be recorded in the same office where the certified copy of the execution has been recorded. Such five months shall thereupon be extended until the end of such action, subject to the orders and decrees of the court therein.

History

Source.

V.S. 1947, § 2347. P.L. § 2294. G.L. § 2483. P.S. § 2205. V.S. § 1849. 1888, No. 68 , § 2.

Revision note—

References to “bill of complaint” and “suit in chancery” were changed to “complaint” and “action” to conform reference to merger of law and equity pursuant to 1971, No. 185 (Adj. Sess.), § 236. See note set out under 4 V.S.A. § 219 .

§ 2810. Record of decree.

A copy of the final decree in the cause, certified by the clerk of the court, shall be recorded within 30 days from its rendition in the office where by law a deed of such real estate is required to be recorded.

History

Source.

V.S. 1947, § 2348. P.L. § 2295. G.L. § 2484. P.S. § 2206. V.S. § 1850. 1888, No. 68 , § 3.

Chapter 113. Judgment Lien

ANNOTATIONS

Effect.

Where, during the pendency of a lease of property to the State, the owners, who held the property as tenants in common, granted an option to the State whereby they obligated themselves to convey title to all the land described in the option agreement by warrant deed, and when the State exercised this option the owners executed a warranty deed whereby they conveyed title to all of the property and covenanted to warrant and defend the title to the parcel, and further covenanted that the entire parcel was free and clear of liens and encumbrances, since plaintiff held a judgment lien against the property to enforce a judgment obtained against one of the owners, the State had a cause of action for breach of warranty against each tenant. Northeast Petroleum Corp. of New Hampshire, Inc. v. State, 143 Vt. 339, 466 A.2d 1164, 1983 Vt. LEXIS 541 (1983).

§ 2901. Creation of judgment lien.

A final judgment issued in a civil action or a restitution order entered under 13 V.S.A. § 7043 shall constitute a lien on any real property of a judgment debtor if recorded as provided in this chapter.

HISTORY: Added 1979, No. 67 , § 3, eff. date, see note set out below; amended 2007, No. 40 , § 1.

History

Amendments

—2007. Inserted “or a restitution order entered under section 7043 of Title 13” following “civil action”.

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

ANNOTATIONS

Construction with other laws.

A lien created under this section and section 2904 of this title by recordation of a judgment is a “judicial lien” within the meaning of 11 U.S.C. § 101(27) and thus may be avoided by the debtor to the extent that the lien impairs an exemption to which the debtor would have been entitled under 11 U.S.C. § 522(b) . In re Branton, 24 B.R. 44, 1982 Bankr. LEXIS 3490 (Bankr. D. Vt. 1982).

Divorce decree.

Recording of a divorce decree did not create a security interest in husband under this section; even assuming the section applies to a divorce judgment, it is clearly not intended to create a lien to enable collection of a future liability. Sumner v. Sumner, 2004 VT 45, 176 Vt. 452, 852 A.2d 611, 2004 Vt. LEXIS 104 (2004).

Homestead exemption.

The homestead exemption applies to judgment liens. Mercier v. Partlow, 149 Vt. 523, 546 A.2d 787, 1988 Vt. LEXIS 62 (1988).

Requirements.

Creditor’s recordation of lien based on a judgment against a bankruptcy debtor before the period for appealing the judgment expired was invalid since the judgment was not final when it was recorded by the creditor as required by 12 V.S.A. §§ 2901 , 2904, thus its recordation did not create a valid judgment lien, and it was irrelevant that a title search would reveal the judgment or that the debtor did not in fact appeal the judgment. Kennedy v. Graybar Elec. Co., 2011 Bankr. LEXIS 2980 (Bankr. D. Vt. July 29, 2011).

No valid lien was created under this section where judgment creditor failed to comply with requirement of section 2904 of this title that recorded copy of judgment order contain date judgment became final, certified by court clerk. Purcell v. FDIC, 141 B.R. 480, 1992 Bankr. LEXIS 999 (Bankr. D. Vt. 1992), aff'd, 150 B.R. 111, 1993 U.S. Dist. LEXIS 1047 (D. Vt. 1993).

§ 2902. Relation to other remedies.

The lien created by this chapter shall be in addition to and separate from any other remedy or interest created by law or contract. Any judgment lien filed on real property which has been attached in the suit in which the judgment is rendered shall relate back to the date of attachment if the judgment is recorded within 60 days after it becomes final.

HISTORY: Added 1979, No. 67 , § 3, eff. date, see note set out below.

History

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

ANNOTATIONS

Homestead exemption.

The homestead exemption applies to judgment liens. Mercier v. Partlow, 149 Vt. 523, 546 A.2d 787, 1988 Vt. LEXIS 62 (1988).

Cited.

Cited in Rainbow Trust v. Moulton Constr., Inc., 200 B.R. 785, 1996 Bankr. LEXIS 1249 (Bankr. D. Vt. 1996).

§ 2903. Duration and effectiveness.

  1. A judgment lien shall be effective for eight years from the issuance of a final judgment on which it is based except that an action to foreclose the judgment lien during the eight-year period shall extend the period until the termination of the foreclosure suit if a copy of the complaint is filed in the land records on or before eight years from the issuance of the final judgment.
  2. A judgment that is renewed or revived pursuant to section 506 of this title shall constitute a lien on real property for eight years from the issuance of the renewed or revived judgment if recorded in accordance with this chapter. The renewed or revived judgment shall relate back to the date on which the original lien was first recorded if a copy of the complaint to renew the judgment was recorded in the land records where the property lies within eight years after the rendition of the judgment, and the renewed or revived judgment is subsequently recorded in accordance with this chapter.
  3. Interest on a judgment lien shall accrue at the rate of 12 percent per annum.
  4. If a judgment lien is not satisfied within 30 days of recording, it may be foreclosed and redeemed as provided in this title and V.R.C.P. 80.1. Unless the court finds that as of the date of foreclosure the amount of the outstanding debt exceeds the value of the real property being foreclosed, chapter 172 of this title shall apply to foreclosure of a judgment lien.

HISTORY: Added 1979, No. 67 , § 3, eff. date, see note set out below; amended 1979, No. 173 (Adj. Sess.), § 26, eff. April 30, 1980; 2009, No. 132 (Adj. Sess.), § 9, eff. May 29, 2010; 2011, No. 102 (Adj. Sess.), § 4, eff. May 5, 2012; 2019, No. 167 (Adj. Sess.), § 10, eff. October 7, 2020.

History

References in text.

Section 4531 of Title 12, referred to in this section, was repealed by 2011, No. 102 (Adj. Sess.), § 2.

Amendments

—2019 (Adj. Sess.). Subsec. (d): Substituted “chapter 172” for “section 4531” in the second sentence.

—2011 (Adj. Sess.). Subsec. (b): Amended generally.

—2009 (Adj. Sess.) Substituted “an action to foreclose the judgment lien” for “a petition for foreclosure filed” and added “if a copy of the complaint is filed in the land records on or before eight years from the issuance of the final judgment” in subsec. (a), added new subsec. (b), and redesignated former subsecs. (b) and (c) as subsecs. (c) and (d).

—1979 (Adj. Sess.). Subsec. (b): Interest shall accrue at the rate of 12 percent per annum on a judgment lien.

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

Implementation of provisions. For implementation of 1979, No. 173 (Adj. Sess.) provisions, see note set out under 8 V.S.A. § 1304 .

ANNOTATIONS

Constitutionality.

Award of statutory prejudgment and postjudgment interest did not violate due process under the Fifth and Fourteenth Amendments, as the 12 percent interest rate was reasonably related to making plaintiffs whole and thus passed rational basis review; there was no constitutional mandate that the statutory interest rate be pegged to the national prime rate. Concord Gen. Mut. Ins. Co. v. Gritman, 2016 VT 45, 202 Vt. 155, 146 A.3d 882, 2016 Vt. LEXIS 46 (2016).

Appeal.

Because the permission requirement of 12 V.S.A. § 4601 applies to appeals of judgment lien enforcement orders, the court had the power to condition permission to appeal on posting a bond, and defendant’s failure to post the bond deprived the Supreme Court of jurisdiction over the appeal. Darden v. O'Keefe, 171 Vt. 571, 762 A.2d 852, 2000 Vt. LEXIS 308 (2000) (mem.).

Construction.

The appeal procedure of 12 V.S.A. § 4601 is covered by the “foreclosed and redeemed” language of subsection 2903(c). Darden v. O'Keefe, 171 Vt. 571, 762 A.2d 852, 2000 Vt. LEXIS 308 (2000) (mem.).

The term “it may be foreclosed” in subsection (c) includes all the actions necessary to obtain a foreclosure decree, including, if necessary, the appeal. Darden v. O'Keefe, 171 Vt. 571, 762 A.2d 852, 2000 Vt. LEXIS 308 (2000) (mem.).

Interest.

Sellers of air freight company were entitled to 9% interest on promissory notes company purchasers signed from time of default until judgment on notes, and 12% interest thereafter, since notes stipulated 9% until time of judgment but were silent as to interest thereafter, and in such cases statutory or legal rate applied. Wright v. Doolin, 158 Vt. 317, 607 A.2d 1137, 1992 Vt. LEXIS 45 (1992).

Limitations.

“Final judgment” that triggered the running of the statute of limitations for a judgment lien was a 2001 default order, which ended the litigation between the parties and finally disposed of the subject matter before the court. A 2006 order that merely set forth an agreed-upon payment plan for the 2001 debt was not a new decision on the merits, and the fact that this order might have been appealable did not change this result. Ayer v. Hemingway, 2013 VT 37, 193 Vt. 610, 73 A.3d 673, 2013 Vt. LEXIS 33 (2013).

Trial courts routinely issue post-judgment orders that identify payments made and interest that has accrued; were a court to construe each of these orders as starting a new limitations period for a judgment lien, a party could extend the life of a judgment lien indefinitely by filing motions to reduce additional accrued interest to judgment. The statute does not contemplate this result, and the need for certainty and predictability in the law compels the Vermont Supreme Court to reject such an approach; rather, the statute of limitations runs from a single ascertainable moment—the issuance of a final judgment on the merits. Ayer v. Hemingway, 2013 VT 37, 193 Vt. 610, 73 A.3d 673, 2013 Vt. LEXIS 33 (2013).

Judgment lien is effective only for eight years from the issuance of a final judgment on which it is based. Here, a default judgment was entered in 2001 and plaintiffs did not file their foreclosure complaint until 2011, outside the eight-year period; thus, the judgment lien was no longer in effect when the complaint was filed and plaintiffs were not entitled to foreclose on the judgment lien. Ayer v. Hemingway, 2013 VT 37, 193 Vt. 610, 73 A.3d 673, 2013 Vt. LEXIS 33 (2013).

Cited.

Cited in Mercier v. Partlow, 149 Vt. 523, 546 A.2d 787, 1988 Vt. LEXIS 62 (1988).

§ 2904. Recording.

A judgment creditor may record a judgment lien at any time within eight years from the date the judgment becomes final in the town clerk’s office of any town where real property of the debtor is located. Recording shall consist of filing a copy of the judgment with date when it became final, certified by the clerk of the court issuing the judgment. The certification shall be recorded by the town clerk in the land records.

HISTORY: Added 1979, No. 67 , § 3, eff. date, see note set out below.

History

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

ANNOTATIONS

Construction with other laws.

A lien created under section 2901 of this title and this section by recordation of a judgment is a “judicial lien” within the meaning of 11 U.S.C. § 101(27) and thus may be avoided by the debtor to the extent that the lien impairs an exemption to which the debtor would have been entitled under 11 U.S.C. § 522(b) . In re Branton, 24 B.R. 44, 1982 Bankr. LEXIS 3490 (Bankr. D. Vt. 1982).

Misspelling in index.

Key to proper notice, in the context of a name index, is the proper spelling of the debtor’s name and the resulting proper alphabetical placement. Applying idem sonans to a name index would defeat the purpose of the index; therefore, when a judgment misspelled the debtor’s last name, causing the recorded judgment to be indexed under the wrong spelling and to be missed during an index search, the doctrine of idem sonans did not allow enforcement of a judgment lien. Lively v. Northfield Sav. Bank, 2007 VT 110, 182 Vt. 428, 940 A.2d 700, 2007 Vt. LEXIS 255 (2007).

Requirements.

Creditor’s recordation of lien based on a judgment against a bankruptcy debtor before the period for appealing the judgment expired was invalid since the judgment was not final when it was recorded by the creditor as required by 12 V.S.A. §§ 2901 , 2904, thus its recordation did not create a valid judgment lien, and it was irrelevant that a title search would reveal the judgment or that the debtor did not in fact appeal the judgment. Kennedy v. Graybar Elec. Co., 2011 Bankr. LEXIS 2980 (Bankr. D. Vt. July 29, 2011).

Where judgment creditor failed to comply with requirement of this section that recorded copy of judgment order contain date judgment became final, certified by court clerk, no valid lien was created under section 2901 of this title. Purcell v. FDIC, 141 B.R. 480, 1992 Bankr. LEXIS 999 (Bankr. D. Vt. 1992), aff'd, 150 B.R. 111, 1993 U.S. Dist. LEXIS 1047 (D. Vt. 1993).

Cited.

Cited in Mercier v. Partlow, 149 Vt. 523, 546 A.2d 787, 1988 Vt. LEXIS 62 (1988).

§ 2905. Discharge of judgment lien.

A judgment lien shall be discharged in the same manner as a mortgage pursuant to 27 V.S.A. chapter 5. The obligation to discharge and liability for breach of that obligation shall be as provided in 27 V.S.A. § 464 .

HISTORY: Added 1979, No. 67 , § 3, eff. date, see note set out below.

History

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

ANNOTATIONS

Tenancy by the entirety.

Judgment creditor of one tenant by the entirety may file judgment against property owned by the judgment debtor as tenant by the entirety under this section, but it may not be levied upon. In re Cerreta, 116 B.R. 402, 1990 Bankr. LEXIS 1527 (Bankr. D. Vt. 1990).

Real property owned jointly as tenants by the entirety is not exempt from sale by trustee in bankruptcy to the extent that joint creditors would be permitted under this section to execute judgment lien on the property. In re Cerreta, 116 B.R. 402, 1990 Bankr. LEXIS 1527 (Bankr. D. Vt. 1990).

Part 7. Provisional Remedies; Security

Chapter 121. Trustee Process

ANNOTATIONS

Procedure.

Under provisions of this chapter and V.R.C.P. 4.2, trustee process can be implemented simultaneously with or after the filing of a complaint in a contract action. A. Emilo Building Supply, Inc. v. R. E. Bean Construction Co., 146 Vt. 198, 503 A.2d 528, 1985 Vt. LEXIS 380 (1985).

Subchapter 1. Generally; Actions in Which Available; Persons and Property Subject to Trustee Process

CROSS REFERENCES

Trustee cases, attachment, see V.R.C.P. 4.2, 62(f), 67, 80(b).

§ 3011. Actions.

Trustee process may be used in any civil action commenced in a Superior Court except in actions for malicious prosecution, libel, slander, or alienation of affections.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 77, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 249 (Adj. Sess.), § 19, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 77.

History

Source.

V.S. 1947, § 1798. 1937, No. 44 , § 1. P.L. § 1746. G.L. § 1936. 1908, No. 62 . P.S. § 1657. V.S. § 1304. R.L. § 1067. G.S. 34, § 1. G.S. 41, § 15. 1852, No. 10 , § 3. R.S. 29, § 1. 1838, No. 12 , §§ 2, 3. 1830, No. 7 . 1817, p. 117. R. 1797, p. 499, § 1.

References in text.

The reference to “alienation of affections” is obsolete. See 15 V.S.A. § 1001 .

Amendments

—2009 (Adj. Sess.) Deleted “or the district court” preceding “except in actions” and made a minor change in punctuation.

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

Omitted the words “or before a justice” following the words “district court”.

—1971 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Trustee process, availability of trustee process, see V.R.C.P. 4.2(a).

ANNOTATIONS

Implied contract.

Action against members of an unincorporated association, being founded on an implied contract, was properly brought to trustee process. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

§ 3012. Tort actions; arrest.

  1. [Repealed.]
  2. A person against whom an action of tort is commenced by trustee process shall not be arrested or imprisoned on an execution issued on a judgment recovered in such action until final entry has been made with respect to all persons summoned as trustees, and until any judgment entered against any trustee has been satisfied or an execution issued thereon has been returned unsatisfied.  However, execution against the body of the principal defendant may be issued within a year and a day after the latest final entry with respect to any person summoned as trustee.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Source.

Subsec. (a): V.S. 1947, § 1799. 1937, No. 44 , § 1. P.L. § 1746. G.L. § 1936. 1908, No. 62 . P.S. § 1657. V.S. § 1304. R.L. § 1067. G.S. 34, § 1. G.S. 41, § 15. 1852, No. 10 , § 3. R.S. 29, § 1. 1838, No. 12 , §§ 2, 3. 1830, No. 7 . 1817, p. 117. R. 1797, p. 499, § 1.

Subsec. (b): V.S. 1947, § 1800. 1937, No. 44 , § 2.

References in text.

The reference to “an action of tort” in subsec. (b) is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

Amendments

—1971 (Adj. Sess.). Subsec. (a): Repealed. Subsec. (a) is now covered by V.R.C.P. 4.2(a), 4.3.

CROSS REFERENCES

Arrest where trustee does not act in good faith in taking fraudulent conveyance, see § 3144 of this title.

ANNOTATIONS

Capias.

Prohibition against mesne process issuing as capias is conditioned on commencement of tort action by trustee process. Ackerman v. Kogut, 117 Vt. 40, 84 A.2d 131, 1951 Vt. LEXIS 99 (1951).

Jurisdiction.

Purported service of writ by attachment of defendant’s funds, which were held by bank in debtor capacity, could not be basis for court’s acquiring jurisdiction over defendant in action for malicious prosecution, since this section makes trustee process unavailable in such actions. Berry v. Arnoldware-Rogers, 127 Vt. 188, 243 A.2d 781, 1968 Vt. LEXIS 198 (1968).

§ 3013. Who may be summoned as trustee generally; property subject to process.

A person or corporation, or the State of Vermont by service of process upon the State Treasurer, may be summoned as a trustee of the defendant. The goods, effects, or credits of the defendant which are in the hands of such trustee at the time of the service of the writ upon the trustee, or which come into the trustee’s hands or possession before disclosure, shall thereby be attached and held to respond to final judgment in the cause, except as hereinafter provided. Notwithstanding the foregoing, the State of Vermont may not be summoned as a trustee of the defendant for any tax refunds, credits, or rebates due the defendant under Title 32.

HISTORY: Amended 1991, No. 186 (Adj. Sess.), § 33, eff. May 7, 1992.

History

Source.

V.S. 1947, § 1801. 1941, No. 33 . P.L. § 1747. G.L. § 1937. P.S. § 1658. V.S. § 1305. R.L. §§ 1068, 1072. G.S. 34, § 2. 1845, No. 29 . R.S. 29, § 4. R. 1797, p. 499, § 1.

Amendments

—1991 (Adj. Sess.). Substituted “the trustee” for “him” following “writ upon” and “the trustee’s” for “his” preceding “hands” in the second sentence and added the third sentence.

ANNOTATIONS

Appearance.

Presence of defendant corporation in court raising defense of insufficient service established actual notice of pendency of litigations as well as opportunity to be heard and thus corporation could rest its defense only on legal rather than actual insufficiency of service. Berry v. Arnoldware-Rogers, 127 Vt. 188, 243 A.2d 781, 1968 Vt. LEXIS 198 (1968).

Choses in action.

Person could not be charged as trustee on account of choses in action held for or in right of principal debtor. Fuller v. Jewett, 37 Vt. 473, 1865 Vt. LEXIS 12 (1865).

Clerk of court.

Clerk of court may be liable to trustee process. Wilbur v. Ray, 60 Vt. 581, 15 A. 203, 1888 Vt. LEXIS 184 (1888).

Coplaintiff.

Coplaintiff could be proper party trustee and chargeable as such. Oren Lyman & Co. v. Wood, 42 Vt. 113, 1869 Vt. LEXIS 48 (1869).

—Generally.

Federal director general of railroads was chargeable as trustee of credits in his hands for loss of freight and freight overcharges where his order prohibiting bringing trustee process was revoked before trial. Northfield Trust Co. v. Cutting, 95 Vt. 343, 115 A. 289, 1921 Vt. LEXIS 222 (1921).

Custodia legis.

Money in custodia legis cannot be attached by trustee process. Wilbur v. Ray, 60 Vt. 581, 15 A. 203, 1888 Vt. LEXIS 184 (1888).

Effect of service on property.

One against whom trustee process is served has the right to offer in defense all rights of any third-party claimant to the property, but such third-party rights must have accrued before service of the process, as service freezes the property and forbids any change in ownership pending determination of trustee’s responsibility. First Wisconsin Mortgage Trust v. Wyman's, Inc., 139 Vt. 350, 428 A.2d 1119, 1981 Vt. LEXIS 469 (1981).

Enforceable right.

Under this section and sections 3018 and 3019 of this title, the debt reached must be one actually owed the judgment debtor by the third party at the time of service of the trustee process, or one which comes into the third party’s hands before he files his disclosure in the trustee process proceeding, the exception to this rule being when the third party fails to fulfill his responsibilities under the law and therefore puts his own resources at stake for the benefit of the judgement creditor. First Wisconsin Mortgage Trust v. Wyman's, Inc., 139 Vt. 350, 428 A.2d 1119, 1981 Vt. LEXIS 469 (1981).

As a general rule, to charge one as trustee, the principal debtor must have cause of action against him. State v. Bellavance, 65 A.3d 1235, 2013 Me. LEXIS 42 (Me. 2013).

It was sufficient, in order to render a person chargeable as trustee, that property have been deposited with him by principal debtor, or that he be indebted to principal debtor, though something farther—as, for instance, a demand—be requisite, in order to give principal debtor a right of action against him therefor. Corey v. Powers, 18 Vt. 587, 1846 Vt. LEXIS 93 (1846).

Where father conveyed to his son all his property, as consideration for future support, and, as a part of contract, son promised to pay a debt due from father to A., it was held, in suit brought by A. against father on that debt, summoning son as trustee, that son was chargeable. Corey v. Powers, 18 Vt. 587, 1846 Vt. LEXIS 93 (1846).

Trustee action could be maintained only for such debt as principal debtor could himself enforce by an action at law. Hoyt v. Swift., 13 Vt. 129, 1841 Vt. LEXIS 23 (1841).

Estate debt.

Goods, effects and credits were attachable by trustee process only when they belonged to principal defendant in his own right, and estate of an intestate or testator in hands of administrator or executor was trust property which latter held as trustee only; therefore in order to hold debt due such estate by trustee process, it must be case where, under statute, claim against estate might be sued in common law court, and estate properly made principal defendant. Boyden v. Ward, 38 Vt. 628 (1866). See also § 3015 of this title.

Evidence of indebtedness.

Indebtedness evidenced by bond, given to indemnify an officer for having attached property of doubtful ownership, could be attached by trustee process as property of officer, after judgment had been recovered against officer by third person for taking property. Downer v. Topliff, 19 Vt. 399, 1847 Vt. LEXIS 47 (1847).

Good faith.

Law exacts utmost good faith in making disclosure and requires trustee to disclose all material facts affecting his liability, and legal and equitable rights of other claimants of funds in his hands. Baldwin v. Percival, 88 Vt. 211, 92 A. 101, 1914 Vt. LEXIS 212 (1914).

Trustee must disclose fully and with utmost good faith, or he cannot claim protection of judgment rendered on such disclosure. Parker v. Wilson, 61 Vt. 116, 17 A. 747, 1888 Vt. LEXIS 120 (1888).

Grantees of real estate.

Grantees of real estate incumbered by mortgage given to secure note did not become personally liable to holder of note, and could not be held as trustees of mortgagor. Smith v. Hyde, 36 Vt. 303, 1863 Vt. LEXIS 77 (1863).

Historical.

First trustee law, approved Oct. 31, 1797, provided, “that if any person or persons shall have in his, her or their possession, any money, goods, chattels, rights or credits”, etc., and such phraseology was changed to “goods, effects and credits” in the revision of 1839, R.S. 29, § 4. Morse v. Stevens, 95 Vt. 465, 115 A. 697, 1922 Vt. LEXIS 155 (1922).

—Attorney.

Attorney who had demand of client in his hands for collection at time of service of trustee process on him could be held as trustee of client, if he collected money on demand after such service, but previous to making his disclosure. Hurlburt v. Hicks, 17 Vt. 193, 1845 Vt. LEXIS 12 (1845).

Action could not be sustained against one as trustee, merely because he was attorney for absconding debtor and had in his care debt in course of collection against another person. Hitchcock v. Egerton, 8 Vt. 202, 1836 Vt. LEXIS 39 (1836).

Illegal proceeds.

Trustee, having money in his hands derived from illegal sale of intoxicating liquor by him as agent of principal defendant, could not set up as defense illegality of transaction by virtue of which he received money. Thayer v. Partridge, 47 Vt. 423, 1875 Vt. LEXIS 37 (1875).

Infant.

Infant was liable as trustee for articles of personal property belonging to principal defendant which were in his possession and for any debt due from him for necessaries. Scofield v. White, 29 Vt. 330, 1857 Vt. LEXIS 39 (1857); Wilder & Snow v. Eldridge, 17 Vt. 226, 1845 Vt. LEXIS 18 (1845).

It was necessary that minor should defend by guardian in trustee process as in any other case and his guardian, if he had one, must be cited and if this was not done, plaintiff must, at his peril, apply to court to appoint a guardian ad litem. Wilder & Snow v. Eldridge, 17 Vt. 226, 1845 Vt. LEXIS 18 (1845).

If the trustee, though minor at time of service of trustee process, became of age before disclosure was made, it was not then necessary to appoint guardian ad litem. Wilder & Snow v. Eldridge, 17 Vt. 226, 1845 Vt. LEXIS 18 (1845).

Infant’s debt.

Debt due to infant could be attached and held by trustee process. Elwell v. Martin, 32 Vt. 217, 1859 Vt. LEXIS 84 (1859).

Insurance proceeds.

In order to hold an insurance company liable as garnishee on an indebtedness by reason of its liability on a policy of insurance, a present fixed liability to pay the insured for the loss insured against must be shown; that is it must be shown that the legal obligation is absolute, and not contingent or dependent upon unperformed conditions. Ricker v. Lajoie, 314 F. Supp. 401, 1970 U.S. Dist. LEXIS 11032 (D. Vt. 1970).

Interest.

Person summoned as trustee was liable to pay interest, where demand was on interest at the time process was served. Baker v. Central Vt. Ry. Co., 56 Vt. 302, 1883 Vt. LEXIS 114 (1883).

Joint debt.

Joint debt could not be subject of trustee process insuit against one of parties alone to whom the debt was due. Willard v. Wing, 70 Vt. 123, 39 A. 632, 1897 Vt. LEXIS 13 (1897); McNeal Foundry Co. v. Inman Bros., 69 Vt. 181, 37 A. 284, 1896 Vt. LEXIS 30 (1896); Fairchild v. Lampson, 37 Vt. 407, 1865 Vt. LEXIS 2 (1865); Towne v. Leach, 32 Vt. 747, 1860 Vt. LEXIS 35 (1860).

Joint or common property.

Where defendant and claimant were joint equal owners of quantity of cheese that they put into hands of trustees to dispose of for them, and to pay to each his share of avails thereof, defendant’s share of avails in hands of trustees could be held by trustee process. Piper v. Hanley, 48 Vt. 479, 1876 Vt. LEXIS 36 (1876).

If personal property owned in common be in possession of a third party, interest of one of the owners therein could be attached by trustee process against party in possession. Bartlett v. Wood, 32 Vt. 372, 1859 Vt. LEXIS 112 (1859).

Legacy.

Where testator bequeathed sum of money to his son “for the support of himself and family and for no other purpose,” and testator’s executors and paid this legacy to son’s attorney, money constituted trust fund for purposes named in will, and could not be attached on son’s debts, by trustee process, while in attorney’s hands. Executors of White v. White, 30 Vt. 338, 1857 Vt. LEXIS 85 (1857).

Lessee.

Lessee could be held trustee for future rent. Rowell v. Felker, 54 Vt. 526 (1881).

The assignee of lease who agreed with lessee to pay to lessor rent for remaining portion of term which lessee was bound to pay, would not be liable as trustee of lessee for rent which became due from him under this arrangement. Overman & Baxter v. Geo. P. Sanborn & Co., 27 Vt. 54, 1854 Vt. LEXIS 94 (1854).

Where by terms of lessee’s covenant rent was to be paid by him in discharge of debts owed by lessor, and lessor, at time of executing lease, delivered to lessee writing, specifying certain of his creditors, and requesting lessee, out of rent, to pay whatever was due to them from lessor, and it did not appear that creditors named ever accepted provision thus made for them, or that trustee ever promised to pay them, proceedings were inoperative in this respect, and lessee was chargeable as trustee of lessor for amount of rent. Burt & Mason v. Hurlburt, 16 Vt. 292, 1844 Vt. LEXIS 69 (1844).

Machinery.

Machinery in blacksmith’s and wagon maker’s shop, which, though fastened to building, was only so attached for purpose of making it firm for use in its place, and which could be removed without seriously injuring building, consisting of boring lathe, engine lathe, wood turning lathe, press drill, press punch, upright saw, and circular saw, all being propelled by water, was personal property and not fixtures, and as such liable to attachment by trustee process. Bartlett v. Wood, 32 Vt. 372, 1859 Vt. LEXIS 112 (1859).

Mortgagor or mortgagee of land.

Person who took mortgage of land pending condemnation proceedings under highway law, and who was not made party to such proceedings, could hold damages thereafter awarded, against creditor of mortgagor who attached fund by trustee process. Brooks v. Hubbard, 73 Vt. 122, 50 A. 802, 1901 Vt. LEXIS 140 (1901).

Where S. conveyed his farm and property to his son-in-law, reserving control thereof during life, and took back mortgage thereon, conditioned for his life support, and for payment on demand after his death, of $1000 to defendant, his son, and mortgagor did not assume payment of said $1000, other than by said mortgage, and S. was still living, mortgagor could not be held as trustee of defendant. Morey v. Sheltus, 47 Vt. 342, 1875 Vt. LEXIS 25 (1875).

National bank debt.

Trusteeing debt due national bank was in effect attachment of property of bank and not subject to attachment before final judgment under federal statute. Safford v. National Bank of Plattsburgh, 61 Vt. 373, 17 A. 748, 1889 Vt. LEXIS 49 (1889).

Partnership debt.

Where persons summoned as trustees were summoned only as partners, effects or credits in hands of one of them individually were not attached and could not be held. Coverly & Co. v. Braynard, 28 Vt. 738, 1856 Vt. LEXIS 115 (1856).

If an individual, without any mention of his partnership relations, is summoned as trustee, debt due from him as member of firm was not thereby attached. Knapp v. Levanway, 27 Vt. 298, 1855 Vt. LEXIS 34 (1855).

Pension money.

Where wife loaned her husband $477 and afterwards husband secured pension and turned over to her pension check for much larger sum under an agreement that she should have $500 of money in payment of what he owed her, whether $23 in excess of the original loan was intended as compensation therefor, or was a gift, check to amount of $400 became wife’s, an one to whom she subsequently loaned it could not be held as trustee of husband on account of such loan or any part thereof. Bullard v. Goodno, 73 Vt. 88, 50 A. 544, 1901 Vt. LEXIS 132 (1901).

Debt created by the deposit of pension check, with bank, or of money received from it, was attachable on trustee process. Martin v. Hurlburt & Rutland Sav. Bank, 60 Vt. 364, 14 A. 649, 1888 Vt. LEXIS 156 (1888).

Where a pensioner received draft on account of his pension and gave same to his wife, who, by defendant’s advice, passed it to P., who gave her his note therefor, payable to her order, understanding that it was for defendant’s pension, and that defendant and his wife wanted it used for benefit of defendant’s family, or to pay for homestead if they purchased one, legal title to the draft passed to wife by gift, and P. was not chargeable as trustee of defendant. Hayward v. Clark, 50 Vt. 612, 1878 Vt. LEXIS 21 (1878).

Money of a pensioner, in hands of his agent or attorney appointed to receive his pension from the disbursing agent, and received on that account, was not liable to trustee process. Adams v. Newell, 8 Vt. 190, 1836 Vt. LEXIS 35 (1836).

Securities for money.

Person could not be charged as trustee on ground of having in his hands mere securities for money belonging to principal debtor. Morse v. Stevens, 95 Vt. 465, 115 A. 697, 1922 Vt. LEXIS 155 (1922); Smith v. Wiley, 41 Vt. 19, 1868 Vt. LEXIS 69 (1868); Van Amee v. Jackson & Ketcham, 35 Vt. 173, 1862 Vt. LEXIS 16 (1862); Scofield v. White, 29 Vt. 330, 1857 Vt. LEXIS 39 (1857).

Sheriff.

On same principle such officer was liable as trustee of execution debtor for surplus in his hands belonging to debtor, realized on sale of property, and which he was bound to pay over to debtor. Adams v. Lane, 38 Vt. 640, 1866 Vt. LEXIS 43 (1866); W.R. Lovejoy & Co. v. Lee, 35 Vt. 430, 1862 Vt. LEXIS 59 (1862).

Sheriff who has money in his hands which he had collected on execution may be held as trustee of execution creditor. W.R. Lovejoy & Co. v. Lee, 35 Vt. 430, 1862 Vt. LEXIS 59 (1862); Bullard v. Hicks, 17 Vt. 198, 1845 Vt. LEXIS 13 (1845); Hurlburt v. Hicks, 17 Vt. 193, 1845 Vt. LEXIS 12 (1845).

State.

Under this section the State, like any other trustee, is a stakeholder charged with holding the funds until directed, by judgment, to pay them over, and should await judgment before making payment, unless legally authorized in some manner to do otherwise. State v. Rogers, 123 Vt. 422, 193 A.2d 920, 1963 Vt. LEXIS 112 (1963).

Support.

While an obligation for future support may not be trusteeable debt, yet where obligor has failed to support, and arbitrators have awarded specified sum against him because of such failure, such award was debt subject to attachment by trustee process, and when in such case obligee has brought his petition to foreclose mortgage executed to secure his support, obligor could deduct amount for which he had been adjudged trustee. Dickinson v. Dickinson, 59 Vt. 678, 10 A. 821, 1887 Vt. LEXIS 170 (1887).

An obligation to maintain person through life was mere personal matter, and where consideration did not move from person to be supported, it could not be attached by trustee process. Briggs v. Beach, 18 Vt. 115, 1846 Vt. LEXIS 8 (1846).

Taken by execution.

Trustee was not liable for property, as trustee, taken out of his hands by creditor, by virtue of an execution, in same suit, against principal debtor, though execution should turn out to be premature and void, and officer trespasser. Goddard v. Hapgood, 25 Vt. 351 (1853), same case 26 Vt. 402.

—Generally.

Under this section liability of trustee is to be determined with reference to time of service of writ on him, and thereafter until he files his disclosure. Island Pond Nat'l Bank v. Chase, 101 Vt. 60, 141 A. 474, 1928 Vt. LEXIS 172 (1928).

Disclosure required to be filed by trustee has been considered analogous to answer to chancery, and it is ordinarily regarded, not so much in character of testimony, as in that of admission or denial on part of trustee. Baldwin v. Percival, 88 Vt. 211, 92 A. 101, 1914 Vt. LEXIS 212 (1914); Downer v. Topliff, 19 Vt. 399, 1847 Vt. LEXIS 47 (1847).

“Disclosure” that determines rights of parties and which is required under this section is “disclosure” that trustee is required to file, and not that taken by commissioner in further proceedings under §§ 3070-3073 of this title, and so goods or credits that come into possession of trustee after he has filed his disclosure cannot be held by trustee process. Baldwin v. Percival, 88 Vt. 211, 92 A. 101, 1914 Vt. LEXIS 212 (1914).

Trustee of land.

Person holding title to land in trust for another, and for which he was not indebted to his cestui que trust, could not be made chargeable by reason thereof, in trustee process. Executor of Doane v. Doane, 46 Vt. 485, 1874 Vt. LEXIS 27 (1874).

Usurious interest.

Person could not be held as trustee for money received by him from principal debtor as usurious interest, since it was not “credit intrusted” to lender by borrower, within meaning of statute; but remedy for money so paid was rather statutory redress for virtual wrong, and, as such, part of administration of criminal law of country. Barker v. Esty, 19 Vt. 131, 1847 Vt. LEXIS 6 (1847).

Vendor of personalty.

Person who contracts to sell personal property in his possession, but of which he was not owner, to be delivered at future day, and receives purchase money, but does not deliver property by reason of its having been reclaimed by real owner, could be held as trustee of vendee for amount of such purchase money. Edson v. Trask, 22 Vt. 18, 1849 Vt. LEXIS 83 (1849).

—Generally.

The lien imposed by trustee process applies only to funds reached by the operation of the process as an attachment. State v. Rogers, 123 Vt. 422, 193 A.2d 920, 1963 Vt. LEXIS 112 (1963).

Cited.

Cited in In re Clough Enters., Inc., 53 B.R. 426, 1985 Bankr. LEXIS 5192 (Bankr. D. Vt. 1985); Merrimack Sheet Metal, Inc. v. Liv-Mar, Inc., 147 Vt. 85, 511 A.2d 992, 1986 Vt. LEXIS 369 (1986).

Notes to Opinions

Superintendents of State institutions.

Superintendents of State institutions should, as matter of policy, if duly served by legal process naming them as trustees, withhold any check which they may hold belonging to defendant employee therein named. 1946 Vt. Op. Att'y Gen. 210.

§ 3014. Maker or indorser of negotiable paper; exemptions.

Negotiable paper may be attached by and the same shall be subject to the operation of the trustee process, unless the same had been negotiated and notice thereof given to the maker or indorser before the service of the trustee process on him or her. Negotiable paper, actually assigned, negotiated, and transferred, before it becomes due, to a bank, savings bank, savings institution, trust company, or insurance company, in the State, shall be exempt from attachment by trustee process.

History

Source.

V.S. 1947, § 1802. P.L. § 1748. G.L. § 1938. P.S. § 1659. V.S. § 1306. R.L. § 1069. 1872, No. 45 . G.S. 34, § 47. 1852, No. 4 . 1841, No. 8 .

ANNOTATIONS

Constitutionality.

Provision of this section which exempts from attachment by trustee process negotiable paper transferred before due to a bank within the State, does not work discrimination against banks without state from which they are protected by Art. 4, § 2, of Federal Constitution or by Art. 4, § 1, of Amendments thereto. Hawley v. Hurd, 72 Vt. 122, 47 A. 401, 1900 Vt. LEXIS 97 (1900).

All assignments.

Necessity of giving notice to maker was not confined to the first transfer, but was applied to all assignments of note. Seward v. Garlin, 33 Vt. 583, 1861 Vt. LEXIS 6 (1861).

Collateral security.

Provisions of this section were not intended to, nor do they, apply to negotiable paper held by an indorsee of collateral security. Morse v. Stevens, 95 Vt. 465, 115 A. 697, 1922 Vt. LEXIS 155 (1922).

—Generally.

There must be strict compliance with terms of this section as to notice to maker or indorser. Woodward v. Laporte, 70 Vt. 399, 41 A. 443, 1898 Vt. LEXIS 52 (1898).

No particular form or ceremony is prescribed or necessary, to constitute sufficient notice, but it must be such knowledge or information, communicated by assignee of debt, or by his procurement, to alleged trustee, as gives him fully to understand that such assignee is the owner of demand. Dale v. Kimpton, 46 Vt. 76, 1873 Vt. LEXIS 72 (1873).

Communication by which such knowledge or information is imported, may be merely casual, and for no definite purpose, and yet be sufficient notice. Dale v. Kimpton, 46 Vt. 76, 1873 Vt. LEXIS 72 (1873).

It is not essential to validity of notice that it should be personally given by assignee, or his agent directly employed by him for that purpose, and if given by procurement of such agent, it is sufficient. Barron v. Porter, 44 Vt. 587, 1872 Vt. LEXIS 73 (1872).

Notice to maker of promissory note that it has been transferred, if sufficient to prevent his paying it to original payee, would suffice to prevent him from being held as payee’s trustee. Downer v. Marsh, 28 Vt. 558, 1856 Vt. LEXIS 76 (1856).

Joint and several maker.

Notice to one joint and several maker of a promissory note where there were two or more, was such notice to all as satisfies statute. Ayott v. Smith, 40 Vt. 532, 1868 Vt. LEXIS 43 (1868); Hunt v. Miles, 42 Vt. 533, 1870 Vt. LEXIS 3 (1870).

Payee.

Notice of transfer of note payable to payee or bearer, and transferred without indorsement, given by payee and without procurement of transferee, was not sufficient. Webster v. Moranville, 30 Vt. 701, 1858 Vt. LEXIS 100 (1858).

Purpose.

Obvious purpose of this section was to make clear conditions under which maker of negotiable paper may be held chargeable as trustee of payee. Morse v. Stevens, 95 Vt. 465, 115 A. 697, 1922 Vt. LEXIS 155 (1922).

Stranger.

Information of fact of indorsement from mere stranger to paper was not sufficient. J. & J. H. Peck & Co. v. Walton, 25 Vt. 33, 1852 Vt. LEXIS 109 (1852).

Transfers to bank, etc., before maturity.

Provision exempting from attachment negotiable paper, actually assigned, negotiated, and transferred to bank before due, has been construed to afford such exemption only to extent necessary for protection of bank holding paper. Shurtleff v. Norcross, 95 Vt. 420, 115 A. 494, 1921 Vt. LEXIS 235 (1921).

Negotiable paper transferred to a bank as collateral security was exempt from attachment by trustee process only so far as necessary for security of bank. Sargent v. Wood, 51 Vt. 597, 1879 Vt. LEXIS 132 (1879).

Negotiable paper transferred to bank before maturity was exempt from attachment by trustee process although judgment was obtained against trustee before such transfer. Bank of Newbury v. Webster, 47 Vt. 43, 1874 Vt. LEXIS 74 (1874).

Fact of such transfer before negotiable paper became due had effect to exempt paper from process, and in this respect it made no difference whether previous to such transfer process had been served that would hold debt if paper had not been transferred to bank, where bank discounted paper in good faith in ordinary course of business without knowledge of pendency of trustee process. State v. J.R., 191 A.3d 1157, 2018 Me. LEXIS 124 (Me. 2018).

Wife.

Notice to wife of debtor and by her communicated to debtor would protect assignment as against trustee process. State v. Parker, 156 A.3d 118, 2017 Me. LEXIS 30 (Me. 2017).

§ 3015. Executor or administrator.

A debt or legacy due from an executor or administrator, and other goods, effects, or credits in his or her hands, may be attached by trustee process.

History

Source.

V.S. 1947, § 1803. P.L. § 1749. G.L. § 1939. P.S. § 1660. V.S. § 1307. R.L. § 1070. G.S. 34, § 3. R.S. 29, § 47. 1833, No. 9 .

ANNOTATIONS

Contingency.

Administrator, who was served with trustee writ before decree of distribution was made, was properly discharged as trustee, notwithstanding such decree was made before he filed his disclosure and funds belonging to heir then came into his hands on filing of decree, since, until such decree was made, claim of heir was contingent and liable to be defeated; hence at time of service of writ on administrator there was no amount due heir absolutely and without contingency within § 3019 of this title. Island Pond Nat'l Bank v. Chase, 101 Vt. 60, 141 A. 474, 1928 Vt. LEXIS 172 (1928).

Executor under will was not chargeable by trustee process in action against beneficiary if he had not promised beneficiary, nor been ordered by probate court, to pay, nor in any way terminated trust. Husted v. Stone, 69 Vt. 149, 37 A. 253, 1896 Vt. LEXIS 24 (1896).

Personal capacity.

Administrator holding money, proceeds of settled estate, was chargeable as trustee of one entitled thereto in distribution of such proceeds, on trustee process summoning him in his personal and not in his representative capacity. Hoyt v. Christie, 51 Vt. 48, 1878 Vt. LEXIS 117 (1878).

§ 3016. Nonresidents summoned as trustees.

A person shall not be summoned as a trustee, unless at the time of the service of the writ he or she resides in the State. However, debts due and owing from a person resident outside the State, or from a number of persons, part or all of whom reside outside the State, having an authorized agent resident in the State, may be attached and holden by trustee process. Service of such process upon such agent as provided for in service of writs of summons, shall be sufficient notice to such trustees as reside outside the State.

History

Source.

V.S. 1947, § 1805. P.L. § 1751. G.L. § 1941. P.S. § 1663. V.S. § 1310. R.L. § 1073. G.S. 34, § 5. 1854, No. 10 . R.S. 29, § 46.

ANNOTATIONS

Attachment of debt.

Since the defendant’s Cash Management Account is an intangible asset, it does not matter for purposes of in rem jurisdiction if it is not located in the State of Vermont; a nonresident’s debt may be attached so long as the debtor has an agent in the State and the company that manages the account has business in the State of Vermont. Poston v. Poston, 161 Vt. 591, 657 A.2d 1076, 1993 Vt. LEXIS 150 (1993) (mem.).

Foreign insurance company.

Despite the language of this section a foreign insurance company doing business in Vermont is subject to trustee process. Ricker v. Lajoie, 314 F. Supp. 401, 1970 U.S. Dist. LEXIS 11032 (D. Vt. 1970); Weed Sewing Mach. Co. v. Boutelle, 56 Vt. 570, 1884 Vt. LEXIS 98 (1884).

Members of partnership.

Members of partnership, part of whom reside in this State and part in another State, who form their partnership and carry on their partnership business in this State, could be held chargeable as trustee of one to whom they are indebted in this State. Pecks & Co. v. Barnum, 24 Vt. 75, 1852 Vt. LEXIS 1 (1852).

Railroad corporation.

Railroad operating its line within this State and having superintendent resident here could be held on trustee process as to debts arising in business conducted by such authorized agent and payable here. Holt v. Ladd, 71 Vt. 204, 44 A. 69, 1899 Vt. LEXIS 155 (1899).

Railroad corporation chartered by and organized under laws of another State and having its principal place of business in that State, but operating lines of railway in this State, could not be charged as trustee, with respect to debt due principal defendant as wages for services rendered wholly in state of New York and payable there. Craig v. Gunn, 67 Vt. 92, 30 A. 860, 1894 Vt. LEXIS 18 (1894).

Temporary residence.

Where stay in State was temporary and for single purpose, trustees were not residents within meaning of statute. Rindge v. Green, 52 Vt. 204, 1879 Vt. LEXIS 162 (1879).

§ 3017. Foreign railroad corporations as trustees.

A foreign railroad corporation, operating a railroad in whole or in part within this State, may be summoned as a trustee of a person to whom such corporation is indebted, in an action brought to recover a debt contracted within this State. Service of process in such cause may be made as provided in section 3016 of this title.

History

Source.

V.S. 1947, § 1806. P.L. § 1752. G.L. § 1942. P.S. § 1664. R. 1906, § 1560. 1896, No. 32 , § 1.

§ 3018. Debts absolutely due, but not payable.

Any money or other thing due the defendant may be attached by trustee process before it has become payable, provided it is due absolutely and without contingency. The trustee shall not be compelled to pay or deliver it before the time fixed by the contract.

History

Source.

V.S. 1947, § 1804. P.L. § 1750. G.L. § 1940. P.S. § 1661. V.S. § 1308. R.L. § 1071. G.S. 34, § 7. R.S. 29, § 32. R. 1797, p. 506, §§ 8, 9.

CROSS REFERENCES

Trustee cases, attachment, see V.R.C.P. 4.2, 67.

ANNOTATIONS

Constitutionality.

Trustee process for wages, over and above exemption under § 3020(5) of this title, collateral to action in general assumpsit was not an unconstitutional deprivation of due process and did not oust court from jurisdiction to decide principal or collateral action. Shell Oil Co. v. Milne, 127 Vt. 249, 246 A.2d 837, 1968 Vt. LEXIS 217 (1968), cert. denied, 395 U.S. 965, 89 S. Ct. 2109, 23 L. Ed. 2d 750, 1969 U.S. LEXIS 1311 (1969).

State may by appropriate legislation authorize the attachment or garnishment of property within its borders, subject to limitations in Federal and State Constitutions. Shell Oil Co. v. Milne, 127 Vt. 249, 246 A.2d 837, 1968 Vt. LEXIS 217 (1968), cert. denied, 395 U.S. 965, 89 S. Ct. 2109, 23 L. Ed. 2d 750, 1969 U.S. LEXIS 1311 (1969).

Attachment or garnishment is not a deprivation of property without due process, inasmuch as there must be an adjudication of rights of parties before the property can be subject to plaintiff’s claim. Shell Oil Co. v. Milne, 127 Vt. 249, 246 A.2d 837, 1968 Vt. LEXIS 217 (1968), cert. denied, 395 U.S. 965, 89 S. Ct. 2109, 23 L. Ed. 2d 750, 1969 U.S. LEXIS 1311 (1969).

Arbitration award.

Arbitrator’s award which, pursuant to stipulation agreement, was subject to court approval or disapproval was not a debt due absolutely and without contingency as required by this section. Sullivan v. R. E. Bean Construction Co., 147 Vt. 310, 515 A.2d 1063, 1986 Vt. LEXIS 412 (1986).

Future rent.

Where promise of lessee to pay future rent was absolute, it was debt without contingency. Rowell v. Felker, 54 Vt. 526 (1881).

Insurance proceeds.

In order to hold an insurance company liable as garnishee on an indebtedness by reason of its liability on a policy of insurance, a present fixed liability to pay the insured for the loss insured against must be shown; that it is must be shown that the legal obligation is absolute, and not contingent or dependent upon unperformed conditions. Ricker v. Lajoie, 314 F. Supp. 401, 1970 U.S. Dist. LEXIS 11032 (D. Vt. 1970).

Nature of debt.

Under this section and sections 3013 and 3019 of this title, the debt reached must be one actually owed the judgment debtor by the third party at the time of service of the trustee process, or one which comes into the third party’s hands before he files his disclosure in the trustee process proceeding, the exception to this rule being when the third party fails to fulfill his responsibilities under the law and therefore puts his own resources at stake for the benefit of the judgment creditor. First Wisconsin Mortgage Trust v. Wyman's, Inc., 139 Vt. 350, 428 A.2d 1119, 1981 Vt. LEXIS 469 (1981).

Negotiable note.

Where trustee had given his negotiable note, with following condition, “I am at my option about paying the principal of this note while I pay the interest annually,” contract was of character to be liable to attachment by trustee process. D. Fay & Co. v. Smith, 25 Vt. 610, 1853 Vt. LEXIS 95 (1853).

Assignment of portion of note would not hinder an attachment of remainder of note. D. Fay & Co. v. Smith, 25 Vt. 610, 1853 Vt. LEXIS 95 (1853).

Trustee process not only remedy.

This section does not make trustee process only remedy when property of debtor in hands of third party is in form of money not a credit. State v. Lopez, 184 A.3d 880, 2018 Me. LEXIS 58 (Me. 2018).

—Generally.

To prevent trustee process from attaching to an obligation, a contingency must be such as to affect the existence of the debt itself and not simply the liability of the trustee to have the effects or credits called out of his hands in a particular manner. Ricker v. Lajoie, 314 F. Supp. 401, 1970 U.S. Dist. LEXIS 11032 (D. Vt. 1970); Dower v. Curtis, 25 Vt. 650, 1853 Vt. LEXIS 105 (1853).

§ 3019. Debts contingent; judgment subject to execution.

A person shall not be adjudged a trustee by reason of any money or other thing due from him or her to the principal defendant, unless it is due absolutely and without contingency at the time of the service of the writ upon him or her, or by reason of a debt due from him on a judgment, so long as he or she is liable to an execution on the judgment.

History

Source.

V.S. 1947, § 1807. P.L. § 1753. G.L. § 1943. P.S. § 1665. V.S. § 1311. R.L. § 1074. G.S. 34, § 6. R.S. 29, § 29.

ANNOTATIONS

Administrator’s funds.

Administrator, who was served with trustee writ before decree of distribution was made, was properly discharged as trustee, notwithstanding such decree was made before he filed his disclosure and funds belonging to heir then came into his hands upon filing of decree, since until such decree was made, claim of heir was contingent and liable to be defeated; hence at time of service of writ upon administrator there was no amount due heir absolutely and without contingency within this section. Island Pond Nat'l Bank v. Chase, 101 Vt. 60, 141 A. 474, 1928 Vt. LEXIS 172 (1928).

Arbitration award.

Arbitrator’s award which, pursuant to stipulation agreement, was subject to court approval or disapproval was not a debt due absolutely and without contingency as required by this section. Sullivan v. R. E. Bean Construction Co., 147 Vt. 310, 515 A.2d 1063, 1986 Vt. LEXIS 412 (1986).

Certainty.

Under this section and sections 3013 and 3018 of this title, the debt reached must be one actually owed the judgment debtor by the third party at the time of service of the trustee process, or one which comes into the third party’s hands before he files his disclosure in the trustee process proceeding, the exception to this rule being when the third party fails to fulfill his responsibilities under the law and therefore puts his own resources at stake for the benefit of the judgment creditor. First Wisconsin Mortgage Trust v. Wyman's, Inc., 139 Vt. 350, 428 A.2d 1119, 1981 Vt. LEXIS 469 (1981).

Debt which is certain as to liability, and uncertain only as to amount, is not contingent, within meaning of statute, but may be taken by trustee process. Rowell v. Felker, 54 Vt. 526 (1881); Joslyn & Hatch v. Merrow, 25 Vt. 185, 1853 Vt. LEXIS 22 (1853); Downer v. Topliff, 19 Vt. 399, 1847 Vt. LEXIS 47 (1847).

Trustee was not chargeable where there was at most only a possibility he might become liable on bills of exchange. Sibley v. Foster, 23 Vt. 352, 1851 Vt. LEXIS 37 (1851).

Lister’s compensation.

Town could not be held liable as trustee for compensation due one of its listers for services, if same was voted after service of writ upon it, for nothing would be due absolutely at time of service. Senna v. Kennedy, 68 Vt. 172, 34 A. 691, 1896 Vt. LEXIS 68 (1896).

Money held as security for becoming bail.

Money held as security for becoming bail did not depend on contingency under meaning of this section and was not exempt from trustee process. J.W. Ellis & Co. v. Goodnow, 40 Vt. 237, 1867 Vt. LEXIS 71 (1867).

§ 3020. Exemptions from trustee process generally.

The following named bodies corporate and persons shall not be liable or chargeable on trustee process:

  1. A fire insurance company on account of a sum due from such company to the defendant in consequence of loss by fire of property exempt from attachment and execution;
  2. A life insurance company by reason of having in its hands money not exceeding $500.00 due or payable under a policy of life insurance;
  3. A person having in his or her hands monies due or belonging to the debtor, as his or her debenture as a member or officer of the General Assembly or as a petit or grand juror attending Superior Court;
  4. A member of the General Assembly or officer of the State required to attend upon the General Assembly or to report thereto, upon a contract, express or implied, for board and lodging furnished to him or her by the principal debtor while attending the session of the General Assembly;
  5. [Repealed.]
  6. A person indebted for the services of a minor or married woman in an action against the parent of such minor or the husband of such married woman;
  7. A corporation by reason of any money due from it to a person residing outside the State for services rendered outside the State, provided a like sum of money so due would be exempt from attachment by trustee process in the state where such person resides.
  8. A person or corporation having in his, her, or its possession any goods, effects, or credits of a municipality, in any action or suit against such municipality as principal debtor or defendant.

HISTORY: Amended 1966, No. 8 (Sp. Sess.); 1969, No. 87 , eff. April 18, 1969; 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

1951, No. 34 . V.S. 1947, § 1808. P.L. § 1754. 1919, No. 74 . G.L. § 1944. 1912, No. 92 , § 1. P.S. § 1666. 1896, No. 31 , § 1. V.S. § 1312. 1884, No. 140 , § 1. R.L. § 1075. G.S. 34, § 2. 1860, No. 9 . 1857, No. 10 . 1856, No. 16 . 1856, No. 17 .

Amendments

—1973 (Adj. Sess.). Subdiv. (3): Substituted “Superior” for “County” preceding “Court”.

—1971 (Adj. Sess.). Subdiv. (5): Repealed. This subdiv. is now covered by V.R.C.P. 4.2(j)(2).

—1969. Subdiv. (8): Added.

—1966. Subdiv. (5): Amended generally and made applicable to corporate bodies.

CROSS REFERENCES

Exemptions from trustee process, health insurance policy benefits, see 8 V.S.A. § 4086 .

ANNOTATIONS

Constitutionality.

Trustee process for wages, over and above exemption under this section, collateral to action in general assumpsit was not an unconstitutional deprivation of due process and did not oust court from jurisdiction to decide principal or collateral action. Shell Oil Co. v. Milne, 127 Vt. 249, 246 A.2d 837, 1968 Vt. LEXIS 217 (1968), cert. denied, 395 U.S. 965, 89 S. Ct. 2109, 23 L. Ed. 2d 750, 1969 U.S. LEXIS 1311 (1969).

State may by appropriate legislation authorize the attachment or garnishment of property within its borders, subject to limitations in Federal and State Constitutions. Shell Oil Co. v. Milne, 127 Vt. 249, 246 A.2d 837, 1968 Vt. LEXIS 217 (1968), cert. denied, 395 U.S. 965, 89 S. Ct. 2109, 23 L. Ed. 2d 750, 1969 U.S. LEXIS 1311 (1969).

Attachment or garnishment is not a deprivation of property without due process, inasmuch as there must be an adjudication of rights of parties before the property can be subject to plaintiff’s claim. Shell Oil Co. v. Milne, 127 Vt. 249, 246 A.2d 837, 1968 Vt. LEXIS 217 (1968), cert. denied, 395 U.S. 965, 89 S. Ct. 2109, 23 L. Ed. 2d 750, 1969 U.S. LEXIS 1311 (1969).

Wages.

Where after service on defendant and trustee of plaintiff’s suit, defendant assigned his wages to amount of ten dollars, sum exempt under G.L. 1944, and of which assignment the trustee had notice, and plaintiff then discontinued that suit and brought suit in which he attached by trustee process goods, chattels, effects, and credits of defendant then in hands of trustee, ten dollars assigned could not be taken into account in determining defendant’s exemption. Wilson v. Richardson, 93 Vt. 182, 106 A. 653, 1919 Vt. LEXIS 149 (1919).

§ 3021. Debts reduced by sums owing defendant’s workmen.

In all cases where a principal defendant is indebted to other persons for work done in the performance of a contract out of which the trustee’s indebtedness arises, there shall be exempt from the trustee process, on an action brought for the recovery of debts not incurred as above stated, such sum or sums as may be due from the principal defendant to such other persons for work done in the prosecution of such contract. The principal defendant shall cause to be summoned as claimants before the court in which an action so brought is pending, all such other persons to whom he or she is indebted for work so done.

History

Source.

V.S. 1947, § 1809. P.L. § 1755. G.L. § 1945. P.S. § 1667. 1904, No. 62 , § 1.

ANNOTATIONS

Burden of proof.

The trustee bears the burden of establishing the facts necessary to claim the exemption under this section. Merrimack Sheet Metal, Inc. v. Liv-Mar, Inc., 147 Vt. 85, 511 A.2d 992, 1986 Vt. LEXIS 369 (1986).

Purpose.

This section is designed to protect employees of the principal defendant from having their wages trusteed by their employer’s creditors. Merrimack Sheet Metal, Inc. v. Liv-Mar, Inc., 147 Vt. 85, 511 A.2d 992, 1986 Vt. LEXIS 369 (1986).

Scope of exemption.

The exemption under this section applies only to indebtedness to other persons for work done in the performance of a labor contract; it does not apply to profit. Merrimack Sheet Metal, Inc. v. Liv-Mar, Inc., 147 Vt. 85, 511 A.2d 992, 1986 Vt. LEXIS 369 (1986).

§ 3022. Assignment of future earnings; validity as against trustee process; recording.

An assignment of future earnings shall not be valid against trustee process unless executed in writing and made to secure a debt of an amount therein stated, contracted prior to or simultaneously with the execution of the assignment, or a debt for necessaries to be thereafter furnished to the debtor to the amount therein stated. The assignment shall not be valid as to the trustee process unless it is recorded, before the service of the writ upon the alleged trustee, as follows:

  1. In the office of the clerk of the town wherein the assignor resides, if he or she is a resident of this State, otherwise in the office of the clerk of the town wherein the employer of such assignor resides; or
  2. In the office of the clerk of the town wherein the principal place of business of such employer is located, if such assignor is a nonresident and his or her employer is a resident corporation, partnership, or association; or
  3. In the office of the Secretary of State, if the assignor is a nonresident and his or her employer is a nonresident individual, corporation, partnership, or association, authorized to do business in this State.

History

Source.

V.S. 1947, § 1810. 1947, No. 202 , § 1844. P.L. § 1756. G.L. § 1946. P.S. § 1668. 1906, No. 69 , § 1.

CROSS REFERENCES

Assignment of wages, see 9 V.S.A. § 2456 and 21 V.S.A. § 344 .

§ 3023. Proceeds of property exempt from attachment.

Except as herein otherwise provided, a person shall not be liable on trustee process on account of a sum due or owing to the principal debtor for property sold or conveyed or delivered by him or her, which was exempt from attachment and execution at the time of the sale. If at the time the trustee process was commenced, the principal debtor was the owner of other property exempt from attachment and execution and of the same kind as that sold by him or her to the trustee, so far as such other property was free from encumbrance for the purchase money, the provisions of this section shall not apply.

History

Source.

V.S. 1947, § 1811. P.L. § 1757. G.L. § 1947. P.S. § 1669. V.S. § 1313. R.L. § 1076. 1865, No. 14 , § 1.

ANNOTATIONS

Burden of proof.

When one claims that property was exempt from attachment by trustee process, it is incumbent on him to show it. Rollins v. Allison, 59 Vt. 188, 10 A. 201, 1886 Vt. LEXIS 38 (1886).

Historical.

This section was first enacted in 1865, and while prior thereto for many years specific articles of property had been exempt from attachment and sale on mesne process, or execution, it had been repeatedly held that debt created by sale of such exempt articles was subject to attachment by trustee process. Martin v. Hurlburt & Rutland Sav. Bank, 60 Vt. 364, 14 A. 649, 1888 Vt. LEXIS 156 (1888).

Homestead.

Debtor’s proposed exemption of the proceeds from the pre-petition sale of her Vermont homestead property could be claimed as exempt, without durational or reinvestment restrictions, under the homestead exemption provisions of 27 V.S.A. § 101 and 12 V.S.A. § 3023 . In re Greene, 451 B.R. 331, 2011 Bankr. LEXIS 2282 (Bankr. D. Vt. 2011).

Exemption in case of homestead was in no way dependent upon debtor’s continuing to be housekeeper, nor upon his intention to acquire another homestead, nor upon intent with which he keeps proceeds. Locke v. Post, 71 Vt. 343, 45 A. 226, 1899 Vt. LEXIS 189 (1899).

Where defendant owned two lots of land, one containing an acre and a half with house on it kept for his home, worth $450, and the other lot, forty rods distant, kept and occupied as part of homestead, worth $650, and sold both, $500 was exempt, as homestead included not only house and lot on which it stood, but $50 in value in other lot. Hastie v. Kelley, 57 Vt. 293, 1884 Vt. LEXIS 35 (1884).

Pension fund.

Debt created by deposit of pension check, with bank, or of money received from it, was attachable on trustee process. Martin v. Hurlburt & Rutland Sav. Bank, 60 Vt. 364, 14 A. 649, 1888 Vt. LEXIS 156 (1888).

§ 3024. Debt for property in part exempt.

When the sum due or owing to the principal debtor is in part for property exempt from attachment and execution and in part for property not so exempt, the sum exempt from attachment by the trustee process shall be the value of the property so exempt from attachment and execution.

History

Source.

V.S. 1947, § 1812. P.L. § 1758. G.L. § 1948. P.S. § 1670. V.S. § 1314. R.L. § 1077. 1865, No. 14 , § 2.

§ 3025. Proceeds of exempt property held for taxes.

Sections 3023 and 3024 of this title shall not apply to a trustee process instituted for the collection of taxes.

History

Source.

V.S. 1947, § 1813. P.L. § 1759. G.L. § 1949. P.S. § 1671. V.S. § 1315. R.L. § 1078. 1865, No. 14 , § 3.

Subchapter 2. Procedure on Trustee Process

§§ 3051-3059. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 3051-3059. Former §§ 3051-3059 related to procedure on trustee process.

These sections are now covered by V.R.C.P. 4.2.

Former § 3051 was derived from V.S. 1947, § 1814; P.L. § 1760; G.L. § 1950; P.S. § 1672; V.S. § 1316; R.L. § 1079; G.S. 34, § 8; R.S. 29, § 3; 1835, No. 12 , § 1; 1807, p. 164; R. 1797, p. 499, § 1; R. 1797, p. 507, § 11.

Former § 3052 was derived from V.S. 1947, § 1815; P.L. § 1761; G.L. § 1951; P.S. § 1673; V.S. § 1317; R.L. § 1080; 1868, No. 22 ; G.S. 34, § 9; R.S. 29, § 7; 1838, No. 5 , § 3; 1835, No. 14 , § 3; 1831, No. 12 ; 1807, p. 165; R. 1797, p. 499, § 1, and amended by 1959, No. 261 , § 12.

Former § 3053 was derived from V.S. 1947, § 1816; P.L. § 1762; G.L. § 1952; P.S. § 1674; V.S. § 1318; 1884, No. 133 , § 1; R.L. § 1080.

Former § 3054 was derived from V.S. 1947, § 1817; 1943, No. 28 , § 1; P.L. § 1763; G.L. § 1953; P.S. § 1675; V.S. § 1319; R.L. § 1081; G.S. 34, § 10; 1846, No. 20 ; 1842, No. 8 .

Former § 3055 was derived from V.S. 1947, § 1818; P.L. § 1764; G.L. § 1954; P.S. § 1676; V.S. § 1320; R.L. § 1082; G.S. 34, § 11; R.S. 29, § 8.

Former § 3056 was derived from V.S. 1947, § 1819; P.L. § 1765; G.L. § 1955; P.S. § 1677; V.S. § 1321; R.L. § 1083; G.S. 34, § 12; R.S. 29, § 9; 1835, No. 12 , § 3; R. 1797, p. 501, §§ 4, 5.

Former § 3057 was derived from V.S. 1947, § 1820; P.L. § 1766; G.L. § 1956; 1917, No. 254 , § 1920; P.S. § 1678; V.S. § 1322; R.L. § 1084; 1869, No. 42 , § 1.

Former § 3058 was derived from V.S. 1947, § 1821; P.L. § 1767; G.L. § 1957; 1917, No. 254 , § 1921; 1915, No. 1 , § 69; P.S. § 1679; V.S. § 1323; R.L. § 1085; 1968, No. 42 , § 2.

Former § 3059 was derived from V.S. 1947, § 1822; P.L. § 1768; G.L. § 1958; P.S. § 1680; V.S. § 1324; R.L. § 1086; 1870, No. 62 ; 1869, No. 12 , § 3.

§ 3060. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 3060. Former § 3060, relating to justice’s court and bond, was derived from 1965, No. 194 , § 10; 1971, No. 185 , § 78.

§ 3061. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 3061. Former § 3061, relating to notice, justification and discharge of trustee, was derived from V.S. 1947, § 1824; P.L. § 1770; G.L. § 1960; 1917, No. 254 , § 1924; P.S. § 1682; V.S. § 1326; R.L. § 1088; 1876, No. 67 , §§ 2, 3. The section is now covered by D.C.C.R. 4.2.

§ 3062. Default of trustee—Adjudgment as trustee.

When a person summoned as trustee does not serve his or her disclosure within such time as the Supreme Court may by rule provide, he or she shall be defaulted and adjudged a trustee.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 79, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1825. P.L. § 1771. G.L. § 1961. P.S. § 1683. V.S. § 1327. R.L. § 1089. G.S. 34, §§ 26, 27. R.S. 29, §§ 13, 45. R. 1797, p. 500, § 2.

Amendments

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Disclosure.

To answer under this section, corporation trustee must make disclosure according to §§ 3064, 3065, and 3069 of this title. Herrick v. Larson, 111 Vt. 190, 13 A.2d 194, 1940 Vt. LEXIS 144 (1940).

Timeliness.

In denying plaintiff’s motion for default against the trustee in a trustee process action, the trial court acted within the court’s discretion in extending the deadline of the trustee process rule and accepting disclosure in order to avoid a default judgment against the trustee, which held no funds belonging to the defendants. Stroup v. Doran, 2014 VT 92, 197 Vt. 550, 109 A.3d 400, 2014 Vt. LEXIS 86 (2014).

Cited.

Cited in A. Emilo Building Supply, Inc. v. R. E. Bean Construction Co., 146 Vt. 198, 503 A.2d 528, 1985 Vt. LEXIS 380 (1985).

§ 3063. Amount of judgment; execution.

When a person is adjudged trustee by default, the judgment shall be for the amount of damages and costs recovered by the plaintiff in the action, and payable in money at the time the judgment is rendered against the principal defendant. Execution therefor may issue directly against the goods, chattels, or estate of the trustee.

History

Source.

V.S. 1947, § 1826. P.L. § 1772. G.L. § 1962. P.S. § 1684. V.S. § 1328. R.L. § 1090. G.S. 34, § 28. R.S. 29, § 44. R. 1797, p. 500, § 2.

ANNOTATIONS

Exceeding one hundred dollars.

In trustee process brought before justice of peace, whether before justice or in county court on appeal, trustee who made no disclosure was held chargeable for amount of judgment against principal debtor, though such judgment, by reason of allowance of costs, exceeded one hundred dollars. Harmon v. Harwood, 35 Vt. 211, 1862 Vt. LEXIS 22 (1862).

Trustee’s liability.

A trustee against which trustee process is served may, as a result of a total failure to disclose or an incomplete or negligently inadequate disclosure, be liable itself for the amount of the judgment sought to be satisfied by the trustee process. First Wisconsin Mortgage Trust v. Wyman's, Inc., 139 Vt. 350, 428 A.2d 1119, 1981 Vt. LEXIS 469 (1981).

§ 3064. Sworn disclosure; general denial; examination; discharge.

When an alleged trustee serves his or her written disclosure under oath declaring that he or she had not at the time of the service of the summons, nor has since had in his or her hands or possession any goods, effects, or credits of the defendant, and submits himself or herself thereupon to examination upon oath, he or she shall be discharged if the plaintiff should decline to examine him or her, or if his or her disclosure appears to be true upon examination and further proceedings. If the plaintiff examines the alleged trustee thereon, he or she shall propose interrogatories in writing, which shall be answered in writing, signed by the trustee, and sworn to by him or her in open court or before a person authorized by law to administer oaths.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 80, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1827. P.L. §§ 1773, 1774. G.L. § 1963. P.S. § 1685. V.S. § 1329. R.L. § 1091. G.S. 34, § 13. R.S. 29, § 10. R. 1797, p. 501, § 4. G.L. § 1964. P.S. § 1686. V.S. § 1330. R.L. § 1092. G.S. 34, § 14. R.S. 29, § 11. R. 1797, p. 501, § 4.

Amendments

—1971 (Adj. Sess.). Rephrased, substituted “serves his written disclosure under oath declaring” for “appears in person or by an attorney, and declares in writing,” and omitted provisions relating to signing declaration by attorney.

ANNOTATIONS

Attorney not licensed to practice.

One who is not attorney licensed to practice in this state is not “attorney” under this section by which trustee may execute disclosure. Herrick v. Larson, 111 Vt. 190, 13 A.2d 194, 1940 Vt. LEXIS 144 (1940).

Denial.

Trustee’s disclosure under this section denying the possession of any goods, effects or credits need not be sworn to. Herrick v. Larson, 111 Vt. 190, 13 A.2d 194, 1940 Vt. LEXIS 144 (1940).

Nature of duty of disclosure.

Once trustee process has been served, trustee has heavy responsibilities, and in making the required disclosure the trustee is held to what might be termed a fiduciary level of responsibility with respect to the assets allegedly belonging to the named owner and must hold and account for them. First Wisconsin Mortgage Trust v. Wyman's, Inc., 139 Vt. 350, 428 A.2d 1119, 1981 Vt. LEXIS 469 (1981).

Perjury.

Where part of trustee’s disclosure was given in writing, as statute required, and another part was given orally and not reduced to writing, prosecution for perjury could not be predicated on part not reduced to writing. State v. Trask, 42 Vt. 152, 1869 Vt. LEXIS 56 (1869).

Cited.

Cited in A. Emilo Building Supply, Inc. v. R. E. Bean Construction Co., 146 Vt. 198, 503 A.2d 528, 1985 Vt. LEXIS 380 (1985); Sullivan v. R. E. Bean Construction Co., 147 Vt. 310, 515 A.2d 1063, 1986 Vt. LEXIS 412 (1986).

§ 3065. Admission; statement of facts.

When an alleged trustee serves his or her written disclosure under oath admitting that he or she has in his or her hands or possession goods, effects, or credits of the defendant, or referring that question to the court upon the facts, his or her disclosure may set forth such facts as he or she deems material, and he or she may submit himself or herself thereupon to a further examination on oath. The plaintiff may propose interrogatories in writing, to be answered as provided in section 3064 of this title.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 81, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1828. P.L. § 1775. G.L. § 1965. P.S. § 1687. V.S. § 1331. R.L. § 1093. G.S. 34, § 15. R.S. 29, § 12. R. 1797, p. 501, § 4. R. 1797, p. 502, § 5. R. 1797, p. 507, § 12.

Amendments

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Failure to make declaration.

Where trustee, wishing to defer to court question whether, on existing facts, it was liable as trustee of principal defendant, failed to make declaration setting forth such facts as it deemed material as required by this section, but the question of trustee’s liability was subsequently tried by court substantially as provided by § 3067 of this title and no objection was made to informality of proceeding, Supreme Court raised no question with respect to such informality. Huestis v. Manley, 110 Vt. 413, 8 A.2d 644, 1939 Vt. LEXIS 160 (1939).

Nature of duty of disclosure.

Once trustee process has been served, trustee has heavy responsibilities, and in making the required disclosure the trustee is held to what might be termed a fiduciary level of responsibility with respect to the assets allegedly belonging to the named owner and must hold and account for them. First Wisconsin Mortgage Trust v. Wyman's, Inc., 139 Vt. 350, 428 A.2d 1119, 1981 Vt. LEXIS 469 (1981).

Necessity for sworn declaration.

Judgment by default on motion was properly entered against trustee mailing to court written disclosure not executed by signature of duly authorized officer and sworn to as required. Herrick v. Larson, 111 Vt. 190, 13 A.2d 194, 1940 Vt. LEXIS 144 (1940).

Cited.

Cited in A. Emilo Building Supply, Inc. v. R. E. Bean Construction Co., 146 Vt. 198, 503 A.2d 528, 1985 Vt. LEXIS 380 (1985); Marble Bank v. Heaton, 160 Vt. 188, 624 A.2d 365, 1993 Vt. LEXIS 31 (1993).

§ 3066. Answers and statements of trustee not conclusive.

The answers and statements sworn to by a person summoned as trustee shall not be conclusive in deciding how far he or she is chargeable, but either party may allege and prove facts material to that issue.

History

Source.

V.S. 1947, § 1829. P.L. § 1776. G.L. § 1966. P.S. § 1688. V.S. § 1332. R.L. § 1094. G.S. 34, § 16. R.S. 29, § 14. R. 1797, p. 501, §§ 4, 5.

ANNOTATIONS

Contradiction.

Disclosure of trustee may be contradicted by other evidence. Huntington v. Bishop, 5 Vt. 186 (1832), same case 3 Vt. 515.

Issues between principal parties.

Office of allegations by trustees under this section was not to present for trial same issues raised and tried between principal parties, and allegations for that purpose will be dismissed on motion. Chaffee v. Railroad Co., 55 Vt. 110, 1882 Vt. LEXIS 37 (1882).

§ 3067. Trial of issues by jury or court.

Questions of fact arising upon such additional allegations may be tried by the court, or in the discretion of the court, may be submitted to a jury in such manner as the court directs, in cases where a commissioner has not been appointed.

History

Source.

V.S. 1947, § 1830. P.L. § 1777. G.L. § 1967. P.S. § 1689. V.S. § 1333. R.L. § 1095. G.S. 34, § 17. R.S. 29, § 15. 1835, No. 14 , § 6.

ANNOTATIONS

Jury trial.

This section does not entitle either party to jury trial as matter of right. Grant v. Goodrich, 109 Vt. 462, 199 A. 246, 1938 Vt. LEXIS 156 (1938).

Trustee of absconding debtor had no right to trial by jury as to question whether he had effects or not. Huntington v. Bishop, 5 Vt. 186 (1832), same case 3 Vt. 515, 88 A.L.R. 1153.

§ 3068. Disclosure before judge in Superior Court action.

A person summoned to appear before the Superior Court as trustee may appear before a Superior judge, competent to try causes between the parties, and with the consent of the parties, certified by such judge, make his or her written disclosure, upon oath. On its being filed with the clerk of the court, such trustee shall not be required to appear before the court, except for the purpose of explaining or correcting his or her disclosure, and the same proceedings shall be had as if taken in Superior Court.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 249 (Adj. Sess.), § 20, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1831. P.L. § 1778. G.L. § 1968. 1917, No. 254 , § 1932. 1908, No. 62 . P.S. § 1690. V.S. § 1334. R.L. § 1096. G.S. 34, § 18. 1842, No. 9 , § 1.

Revision note

—2017. Substituted “Superior” for “district” pursuant to 2009, No. 154 (Adj. Sess.), § 236.

Revision note—. In section heading, reference to “county court” was changed to “superior court”.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

Omitted references to “justice”.

—1965. Substituted “district” for “municipal” judge.

§ 3069. Corporations summoned as trustees.

A corporation may appear by its cashier, treasurer, clerk, or such officer as it appoints, or as the court requires. The answer, disclosure, and examination on oath of such officers shall be received as the answer, disclosure, and examination of the corporation.

History

Source.

V.S. 1947, § 1832. P.L. § 1779. G.L. § 1969. P.S. § 1662. V.S. § 1309. R.L. § 1072. G.S. 34, § 4. R.S. 29, § 6.

ANNOTATIONS

Attorney.

Person signing disclosure as attorney does not thereby indicate that he is proper officer to make disclosure pursuant to this section. Herrick v. Larson, 111 Vt. 190, 13 A.2d 194, 1940 Vt. LEXIS 144 (1940).

Clerk of school district.

Disclosure of school district as trustee, made by clerk in presence and with assistance of prudential committee, bound district. Udall v. School Dist., 48 Vt. 588, 1876 Vt. LEXIS 51 (1876).

§ 3070. Commissioners—Appointment.

When a person summoned as trustee in Superior Court appears and files a disclosure denying his or her liability, or submits such question to the court upon a statement of facts, the court in its discretion may, or upon application of the plaintiff, trustee, or claimant shall, appoint one or more commissioners, who shall hear the testimony adduced by the parties as to the trustee’s liability or the right of the claimant, determine questions with reference thereto, and report to the court the facts with their decision thereon.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1833. P.L. § 1780. G.L. § 1970. P.S. § 1691. V.S. § 1335. R.L. § 1097. G.S. 34, § 19. 1861, No. 15 . 1857, No. 9 . 1853, No. 15 , § 1. 1843, No. 10 , § 1. R. 1797, p. 500, § 3.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

ANNOTATIONS

Conclusiveness.

Where claimant was cited in or appears voluntarily, and his claim affects or determines liability of trustee to plaintiff, case, so far as conflicting rights of plaintiff and claimant are concerned, is within jurisdiction of a commissioner, and his decision is conclusive, as to facts upon which decision of case must turn. Towne v. Leach, 32 Vt. 747, 1860 Vt. LEXIS 35 (1860).

Other parties.

Commissioner appointed was officer of court, and no power was given him to permit other parties to come into suit for purpose of having their rights adjudicated. Rowell v. Felker, 54 Vt. 526 (1881).

—Generally.

Report of commissioner should be so drawn as to clearly indicate to county court proper judgment to be entered thereon. Chittenden v. Hamilton Realty Co., 114 Vt. 57, 39 A.2d 199, 1944 Vt. LEXIS 86 (1944).

Where it appears from report of commissioner that he has left for determination of county court material facts or inferences to be drawn therefrom which statute requires commissioner to decide, appellate court may, under an exception to judgment, remand cause for purpose of having such facts found and inferences drawn and reported by commissioner, to end that no injustice may be done. Chittenden v. Hamilton Realty Co., 114 Vt. 57, 39 A.2d 199, 1944 Vt. LEXIS 86 (1944).

It was not in all cases necessary for report of commissioner in trustee process to show in terms that sale was fraudulent and such facts may be found as to enable court to say as matter of law that sale was fraudulent and void. Stevens v. Kirk, 37 Vt. 204, 1864 Vt. LEXIS 81 (1864).

Where commissioner was appointed, whole case as to liability of trustee was referred, and when commissioner professes to report facts, and makes no reference to disclosure as containing further facts, statements in disclosure could not be regarded by court. W.R. Lovejoy & Co. v. Lee, 35 Vt. 430, 1862 Vt. LEXIS 59 (1862).

Prior law.

Commissioner had no authority to hear and determine rights of claimant under statute of 1853. Boutwell v. McClure, 30 Vt. 674 (1858) same case 34 Vt. 235; Russell v. Thayer, 30 Vt. 525, 1858 Vt. LEXIS 65 (1858).

§ 3071. Powers and duties of commissioner.

A commissioner may summon the trustee to appear before him or her and make disclosure; and if, after reasonable notice from the commissioner, he or she does not appear, or, appearing, does not make disclosure, the commissioner shall report the fact to the court. Thereupon, unless cause is shown to the contrary, the court shall render judgment as in case of default against the trustee. When the trustee appears before the commissioner and does not answer the interrogatories proposed by the plaintiff or commissioner, such failure to answer, relative to the particular matter to which such answer is required, shall be taken against him or her.

History

Source.

V.S. 1947, § 1834. P.L. § 1781. G.L. § 1971. P.S. § 1692. V.S. § 1336. R.L. § 1099. G.S. 34, § 20. 1853, No. 15 , § 2. 1843, No. 10 , § 2.

§ 3072. Taking and return of disclosure.

The commissioner shall take the disclosure of the trustee in writing, and certify and return the same to the court with his or her report.

History

Source.

V.S. 1947, § 1835. P.L. § 1782. G.L. § 1972. P.S. § 1693. V.S. § 1337. R.L. § 1100. G.S. 34, § 22. 1853, No. 15 , § 4.

§ 3073. Judgment on disclosure and commissioner’s report.

When the commissioner has returned to the court the disclosure of the trustee, with the report of the facts and his or her decision thereon, if cause is not shown to the contrary, judgment with costs shall be rendered on such report according to the rights of the parties.

History

Source.

V.S. 1947, § 1836. P.L. § 1783. G.L. § 1973. P.S. § 1694. V.S. § 1338. R.L. § 1102. G.S. 34, § 24. 1861, No. 15 . 1853, No. 15 , § 6.

§ 3074. Disclosure not evidence in a prosecution.

The disclosure upon oath of a trustee in any action in which he or she is summoned shall not be used as evidence to prove any fact therein stated, in a prosecution against him or her for a crime or penalty.

History

Source.

V.S. 1947, § 1864. P.L. § 1811. G.L. § 2001. P.S. § 1722. V.S. § 1367. R.L. § 1131. G.S. 34, § 50. 1842, No. 9 , § 3.

§ 3075. Value less than $10.00; discharge of trustee; costs.

When the goods, effects, and credits in the hands of the trustee do not exceed $10.00 in value, the trustee shall be discharged with costs against the plaintiff. The provision of this section shall not affect a trustee process for the collection of taxes.

History

Source.

V.S. 1947, § 1861. P.L. § 1808. G.L. § 1998. 1912, No. 92 , § 2. P.S. § 1719. V.S. § 1364. 1886, No. 48 . 1884, No. 130 . R.L. § 1128. G.S. 34, § 72. R.S. 29, § 58. 1838, No. 12 , § 3.

ANNOTATIONS

Effect.

Effect of statute was to prevent trustee process from attaching where indebtedness did not exceed $10, and if indebtedness at no time exceeded $10 there was no time in which attachment was operative. Carr v. E. T. Fairbanks & Co., 28 Vt. 806, 1856 Vt. LEXIS 132 (1856).

§ 3076. Trustee liable only for balance due.

A trustee may deduct from the goods, effects, and credits in his or her hands his or her demands against the defendant founded on contract, express or implied, and shall be liable for the balance only after such demands are adjusted.

History

Source.

V.S. 1947, § 1862. P.L. § 1809. G.L. § 1999. P.S. § 1720. V.S. § 1365. R.L. § 1129. G.S. 34, § 52. R.S. 29, § 35.

ANNOTATIONS

Generally.

Right of trustees to retain amount of indebtedness from effects in their hands existed independently of statute. Bishop v. Catlin, 28 Vt. 71, 1855 Vt. LEXIS 136 (1855).

Contribution as cosurety.

Where one summoned as trustee had, previous to service of trustee process on him, signed promissory note as cosurety with principal defendant, and he paid note after trustee process was served upon him, he was entitled to deduct from funds in his hands one-half of amount so paid—being amount for which he was entitled to call principal defendant for contribution as cosurety. Strong & Buck v. Mitchell, 19 Vt. 644, 1847 Vt. LEXIS 98 (1847).

Demands not due.

Trustee could retain not only such demands against defendant as were due, but also such as were to fall due, and thus he could retain, of sum to be paid on defendant’s promissory note which was not yet due, enough to pay his own note due presently. Lynde v. Watson, 52 Vt. 648, 1880 Vt. LEXIS 201 (1880).

Effect of statute of frauds.

Trustee cannot deduct amounts which he has paid or become chargeable for on agreements not binding by reason of statute of frauds. Garfield v. Rutland Inc. Co., 69 Vt. 549, 38 A. 235, 1897 Vt. LEXIS 102 (1897); Strong & Buck v. Mitchell, 19 Vt. 644, 1847 Vt. LEXIS 98 (1847).

Where trustees who were agents of defendant, orally guaranteed to policy holders payment of unearned premiums on their policies in case of cancellation by defendant, and received from defendant commission in view of such guaranties, guaranties were unenforceable, as within statute of frauds, and trustees were not entitled to deduct from funds of defendant in their hands amounts paid by them thereunder. Garfield v. Rutland Inc. Co., 69 Vt. 549, 38 A. 235, 1897 Vt. LEXIS 102 (1897).

Existing demands.

One who was chargeable by trustee process could not deduct amount of note which he had merely endorsed for principal debtor but had not paid nor assumed. Husted v. Stone, 69 Vt. 149, 37 A. 253, 1896 Vt. LEXIS 24 (1896).

Right of trustee to retain claims in his favor, out of effects in his hands, extends only to existing demands founded on contract, and not to matters on which trustee stands simply as surety, unless he has absolutely assumed their payment. M. Noyes & Co. v. Hickok, 27 Vt. 36, 1854 Vt. LEXIS 91 (1854).

Independent claims.

Independent claims in favor of trustee against principal debtor were within statute and had no reference to time of service of process, unless they arose from voluntary advances made by trustee to principal debtor after service of process, or from other transactions, intended to render the creditor’s attachment less beneficial to him; and when such independent claims are set up by trustee, and there is no proof of fraud, but will allow him to retain for such claims from amount in his hands. Weller v. Weller, 18 Vt. 55, 1844 Vt. LEXIS 169 (1844).

Legal obligation on account of defendant.

Trustee could retain whatever, before service of trustee process, he became legally bound to pay to any third party on account of principal defendant. Merrill v. Englesby, 28 Vt. 150, 1855 Vt. LEXIS 152 (1855).

Partnership claim.

Where several trustees, summoned under trustee statute, disclosed a joint indebtedness to principal debtor, and one of trustees claimed that principal debtor was indebted to himself and third person, as partners, such individual trustee would not be allowed to set off this claim against joint indebtedness of himself and his cotrustees. Wells v. Mace, 17 Vt. 503, 1845 Vt. LEXIS 68 (1845), rev'd, 48 U.S. 272, 12 L. Ed. 698, 7 How. 272, 1849 U.S. LEXIS 348 (1848).

Town tax.

Where town summoned as trustee owed defendant $112 for professional services, and at same time there was town tax against defendant, unpaid, of $131.88, town was not entitled to apply said tax upon said debt and thus avoid being held under trustee process. Johnson v. Howard, 41 Vt. 122, 1868 Vt. LEXIS 86 (1868).

Violation of law.

Trustee could not deduct demand against defendant for money paid on illegal sale of intoxicating liquor. Thayer v. Partridge, 47 Vt. 423, 1875 Vt. LEXIS 37 (1875).

§ 3077. Payments by trustee after service.

When, after service on the trustee but before he or she has knowledge thereof, he or she, in good faith, makes payment or becomes liable to a third person on account of the goods, effects, or credits in his or her hands or delivers the same to the defendant or to any other person entitled thereto, he or she shall be allowed therefor as if the payment or delivery had been made or the liability incurred, before the service of the process on him or her.

History

Source.

V.S. 1947, § 1863. P.L. § 1810. G.L. § 2000. P.S. § 1721. V.S. § 1366. R.L. § 1130. G.S. 34, § 53. R.S. 29, § 5.

ANNOTATIONS

Ignorance of ownership of fund.

Where it appeared that trustee employed defendant through an interpreter who gave defendant’s name as Arthur Goulette, and that name was entered on trustee’s books some weeks before writ was served, and defendant’s time credited to that name for two days, but the same work was also credited under the name of Charles Goulette, and all defendant’s work after the first two days was credited to that name, and that after the writ was served on trustee, defendant applied for his wages, presenting time slip made out in name of Charles Goulette and received wages due on that account, it was held that while there may be circumstances in which ignorance of defendant’s ownership of fund will entitle trustee to the same protection as ignorance of the service of the writ, under this section, yet service of process in name under which defendant was originally entered on books three weeks prior thereto was sufficient to put the trustee on inquiry regarding change in name of account, and hence it was in fault in crediting defendant’s earnings under another name, and could not take advantage of this section. Davis v. Goulette, 81 Vt. 255, 69 A. 827 (1908), same case 85 Vt. 158, 81 A. 255.

§ 3078. Judgment on money demands—Amount; when payable.

When a person is adjudged trustee on account of money due to the defendant at a future day, the court shall determine the amount which the trustee shall pay on the judgment and the time when the same shall be paid.

History

Source.

V.S. 1947, § 1868. P.L. § 1815. G.L. § 2005. P.S. § 1726. V.S. § 1371. R.L. § 1135. G.S. 34, § 44. R.S. 29, § 36. R. 1797, p. 502, § 5. R. 1797, p. 560, § 8.

ANNOTATIONS

Cited.

Cited in In re Shuler, 117 B.R. 96, 1990 Bankr. LEXIS 1533 (Bankr. D. Vt. 1990).

§ 3079. Liability of trustee on failure to pay.

When the trustee does not pay such sum by the time specified, when required by the officer serving the execution, he or she shall be liable to the plaintiff for the same with interest in an action of contract on this statute.

History

Source.

V.S. 1947, § 1869. P.L. § 1816. G.L. § 2006. P.S. § 1727. V.S. § 1372. R.L. § 1136. G.S. 34, § 45. R.S. 29, § 37. R. 1797, p. 502, § 5.

References in text.

The reference to “an action of contract” is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

§ 3080. Execution against trustee.

When a person is adjudged trustee on account of money due the defendant at the time judgment is rendered, the court shall determine the amount which the trustee shall pay on such judgment, and execution may issue directly against the goods, chattels, or estate of the trustee for the same. When execution issues against the defendant, the amount of the judgment against the trustee shall be certified thereon.

History

Source.

V.S. 1947, § 1870. P.L. § 1817. G.L. § 2007. P.S. § 1728. V.S. § 1373. R.L. § 1137. G.S. 34, § 46. 1842, No. 9 , § 2. R.S. 111, § 12. R. 1797, p. 502, § 5.

ANNOTATIONS

Generally.

An execution must issue in order to enforce a trustee process judgment. In re Shuler, 117 B.R. 96, 1990 Bankr. LEXIS 1533 (Bankr. D. Vt. 1990), rev'd, 130 B.R. 430, 1991 U.S. Dist. LEXIS 11262 (D. Vt. 1991).

Satisfaction of portion of debt.

If while trustee process was pending in court and previous to judgment being rendered against trustee, plaintiff obtained satisfaction of any portion of his debt, and that appeared in case, he could only take execution against trustee for residue. Spring v. Ayer, 23 Vt. 516, 1851 Vt. LEXIS 60 (1851).

§ 3081. Judgment against trustee; effect on defendant’s demand.

The judgment against a person as trustee shall discharge him or her from demands by the defendant for goods, effects, and credits paid, delivered or accounted for by the trustee, by force of the judgment; and if he or she is afterwards sued therefor by the defendant or his or her representatives, the judgment shall constitute a defense.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 82, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1871. P.L. § 1818. G.L. § 2008. P.S. § 1729. V.S. § 1374. R.L. § 1138. G.S. 34, § 57. R.S. 29, § 38. R. 1797, p. 506, § 10.

Amendments

—1971 (Adj. Sess.). Substituted provisions relating to judgment as defense for evidence under the general denial.

ANNOTATIONS

Adjudication conclusive as to amount.

When question as to how much was due from trustee to principal defendant has been once adjudicated, without collusion or other wrong, issues having been made up, parties having had their day in court, court having jurisdiction of parties and subject matter, such adjudication was conclusive, and question as to amount could not be again litigated by another party, who subsequently commences suit against same defendant and same trustee. State v. Bellavance, 65 A.3d 1235, 2013 Me. LEXIS 42 (Me. 2013).

Necessity for full disclosure.

Trustee must disclose fully and with utmost good faith, or he cannot claim the protection of judgment rendered on such disclosure. Parker v. Wilson, 61 Vt. 116, 17 A. 747, 1888 Vt. LEXIS 120 (1888); Marsh v. Davis, 24 Vt. 363, 1852 Vt. LEXIS 51 (1852).

If trustee makes partial disclosure, so that court has no opportunity to judge real merits of case, and there are any indications of collusion between him and creditor, judgment may furnish him no protection. Seward v. Heflin, 20 Vt. 144, 1848 Vt. LEXIS 8 (1848).

Representative.

Where plaintiff, who was deputy sheriff, having attached certain iron on several writs, permitted it to be sold on purchaser’s agreement to pay price to plaintiff, and, after having made plaintiff partial payment, purchaser was summoned as trustee in suit against attachment defendant, and suffered judgment therein by default, and paid judgment, plaintiff’s writs having been satisfied out of other property, plaintiff in an action against purchaser for the price of the iron was “representative” of attachment defendant within meaning of this section. Lamb v. Zundell, 78 Vt. 232, 62 A. 33, 1905 Vt. LEXIS 104 (1905).

Cited.

Cited in In re Shuler, 117 B.R. 96, 1990 Bankr. LEXIS 1533 (Bankr. D. Vt. 1990).

§ 3082. Discharge of trustee; effect on defendant’s demand.

When a person summoned as trustee is discharged, the judgment shall not be a bar to an action brought against him or her by the defendant for the same demand.

History

Source.

V.S. 1947, § 1872. P.L. § 1819. G.L. § 2009. P.S. § 1730. V.S. § 1375. R.L. § 1139. G.S. 34, § 58. R.S. 29, § 39.

§ 3083. Costs—Allowed to trustee.

When a person summoned as trustee appears and submits to examination upon oath, he or she shall be allowed his or her costs for travel and attendance, and such further sum as the court deems reasonable for his or her counsel fees and other necessary expenses.

History

Source.

V.S. 1947, § 1890. P.L. § 1837. G.L. § 2027. P.S. § 1748. V.S. § 1393. R.L. § 1158. G.S. 34, § 59. R.S. 29, § 40. R. 1797, p. 502, § 5.

ANNOTATIONS

Actual travel.

Trustee and claimants were allowed costs only for their actual travel and not for travel at those terms of court when they appeared only by attorney. Hunt v. Miles, 42 Vt. 533, 1870 Vt. LEXIS 3 (1870).

Counsel fees.

It was discretionary with court whether to allow counsel fees to trustee or not. Rollins v. Allison, 59 Vt. 188, 10 A. 201, 1886 Vt. LEXIS 38 (1886).

Trustee in suit brought by trustee process before justice of peace was not entitled to tax costs for counsel fees before justice. Miller v. Williams, 30 Vt. 386, 1858 Vt. LEXIS 47 (1858).

Exceptions or appeal.

When trustee takes proceedings to remove case into another court by exceptions or appeal, he does it at his peril, as respects costs. Goddard v. Collins & Holden, 25 Vt. 712, 1853 Vt. LEXIS 115 (1853).

If trustee excepts and fails in Supreme Court on his exceptions, he cannot tax costs but must pay costs to plaintiff. Goddard v. Collins & Holden, 25 Vt. 712, 1853 Vt. LEXIS 115 (1853).

If creditor excepts to judgment rendered against trustee, and by carrying case into Supreme Court gets judgment modified, trustee is still entitled to tax costs, inasmuch as he still remained passive, and did not become actor in removal of case to a higher tribunal. Goddard v. Collins & Holden, 25 Vt. 712, 1853 Vt. LEXIS 115 (1853).

Refusal erroneous.

Since trustee was only adjudged chargeable on an item as to which he admitted his liability in his disclosure, it was error to refuse him costs. National Union Bank v. Brainerd, 65 Vt. 291, 26 A. 723, 1893 Vt. LEXIS 56 (1893).

§ 3084. Retention out of funds in trustee’s hands.

When a person is adjudged a trustee, his or her costs and charges shall be retained out of the goods, effects, and credits in his or her hands, and he or she shall be chargeable on execution for the balance.

History

Source.

V.S. 1947, § 1891. P.L. § 1838. G.L. § 2028. P.S. § 1749. V.S. § 1394. R.L. § 1161. G.S. 34, § 60. R.S. 29, § 41. R. 1797, p. 502, § 5.

ANNOTATIONS

Exceptions to Supreme Court.

Trustee, who excepted to decision of county court charging him as trustee and brought case into Supreme Court, and did not prevail upon his exceptions, either in whole or in part, would not be allowed to retain his costs in Supreme Court out of funds in his hands. Brown v. Davis, 19 Vt. 603 (1846), same case 18 Vt. 211.

Taxation against plaintiff.

Person summoned as trustee, who discloses sum of money in his hands belonging to principal debtor, but that he has been adjudged chargeable as trustee for same sum in prior suit against the debtor, must be discharged, and his costs must be taxed against plaintiff in suit and not be deducted from amount found in his hands. Bullard v. Hicks, 17 Vt. 198, 1845 Vt. LEXIS 13 (1845).

§ 3085. Retention of property until costs paid.

When a person is adjudged trustee on account of specific articles of personal property, he or she shall not be obliged to deliver the same to the officer serving the execution until his or her costs and charges are fully paid or tendered.

History

Source.

V.S. 1947, § 1892. P.L. § 1839. G.L. § 2029. P.S. § 1750. V.S. § 1395. R.L. § 1162. G.S. 34, § 63. R.S. 29, § 42.

§ 3086. Judgment for costs of discharged trustee.

When the trustee is discharged, he or she shall recover judgment against the plaintiff for his or her costs and charges and have execution therefor.

History

Source.

V.S. 1947, § 1893. P.L. 1840. G.L. § 2030. P.S. § 1751. V.S. § 1396. R.L. § 1163. G.S. 34, § 64. R.S. 29, § 43. R. 1797, p. 501, §§ 4, 5.

ANNOTATIONS

Absolute right.

Under this section, trustee’s claim for costs was matter of absolute right, of which trustees could not be deprived, except by their own consent, and courts had no discretionary power in matter. Decker v. Fisher, 25 Vt. 533, 1853 Vt. LEXIS 81 (1853).

§ 3087. Recognizance for trustee’s costs.

The plaintiff in a trustee process shall give security for costs to the trustee by way of recognizance by some person other than the plaintiff. The security shall be in the sum of $50.00 for a summons returnable to a Superior Court. If trustee process issues without a minute of the recognizance, with the name of the surety and the sum in which he or she is bound, signed by the clerk thereon, the trustee shall be discharged.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 83, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; No. 249 (Adj. Sess.), § 21, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 78.

History

Source.

V.S. 1947, § 1894. P.L. § 1841. G.L. § 2031. P.S. § 1752. V.S. § 1397. R.L. § 1164. G.S. 34, § 65. R.S. 29, § 54. 1834, No. 17 . 1807, p. 164.

Amendments

—2009 (Adj. Sess.) Deleted “in the sum of $10.00 for a summons returnable before the district court and” preceding “in the sum of $50.00” in the second sentence, and inserted “or she” following “he” in the third sentence.

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

Omitted reference to justice of the peace.

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Cited.

Cited in Sullivan v. R. E. Bean Construction Co., 147 Vt. 310, 515 A.2d 1063, 1986 Vt. LEXIS 412 (1986).

§ 3088. Plaintiff’s costs not to exceed damages.

The plaintiff in a trustee process shall not recover a greater sum for costs, including costs allowed to the trustee, than the amount of damages recovered.

History

Source.

V.S. 1947, § 1895. P.L. § 1842. G.L. § 2032. P.S. § 1753. V.S. § 1398. R.L. § 1165. G.S. 34, § 71. R.S. 29, § 53. 1807, p. 164.

Subchapter 3. Particular Proceedings

§ 3121. Specific property—Delivery to officer; sale; application of proceeds.

When a person is charged as trustee by reason of personal property, other than money, which he or she holds or is bound to deliver to the defendant, he or she shall deliver the same, or so much thereof as is necessary, to the officer who holds the execution, and it shall be sold and the proceeds thereof applied and accounted for as if taken on execution in common form.

History

Source.

V.S. 1947, § 1844. P.L. § 1791. G.L. § 1981. P.S. § 1702. V.S. § 1347. R.L. § 111. G.S. 34, § 29. R.S. 29, § 20. R. 1797, p. 502, § 5.

CROSS REFERENCES

Execution, see ch. 111 of this title.

ANNOTATIONS

Cited.

Cited in In re Shuler, 117 B.R. 96, 1990 Bankr. LEXIS 1533 (Bankr. D. Vt. 1990).

§ 3122. Value as between trustee and defendant.

The value of such personal property so delivered shall be ascertained, as between the trustee and defendant, as if it had been delivered to the defendant. Upon the application of either party, the court may determine such value and make an order as to such property and the expense of keeping and delivering the same, proper to protect the rights of the trustee and the defendant.

History

Source.

V.S. 1947, § 1845. P.L. § 1792. G.L. § 1982. P.S. § 1703. V.S. § 1348. R.L. § 1112. G.S. 34, § 30. R.S. 29, § 21.

§ 3123. Contract as to delivery; tender.

A person summoned as trustee, who has contracted to deliver specific personal property to the defendant at a certain time and place, shall not be compelled thereby to deliver it at any other time or place. He or she may tender it at the time and place mentioned in the contract, and shall retain possession thereof, subject to the order of the court in the trustee process, unless he or she has been previously adjudged a trustee on account thereof.

History

Source.

V.S. 1947, § 1846. P.L. § 1793. G.L. § 1983. P.S. § 1704. V.S. § 1349. R.L. § 1113. G.S. 34, § 31. R.S. 29, § 22. R. 1797, p. 506, § 9.

§ 3124. Delivery of tendered property to officer.

The property so tendered shall be held to respond to the judgment in the trustee process as if the same had been attached, and the trustee shall deliver it to the officer holding the execution, on receiving a reasonable compensation for keeping the same after such tender. The tender shall have the same effect as if it had been made to the defendant and he or she had refused to receive the property.

History

Source.

V.S. 1947, § 1847. P.L. § 1794. G.L. § 1984. P.S. § 1705. V.S. § 1350. R.L. § 1114. G.S. 34, § 32. R.S. 29, § 23.

§ 3125. Payment of trustee’s claim by creditor.

When it appears that personal property in the hands of a person summoned as a trustee is mortgaged, pledged, or liable for the payment of a debt due to him or her, the court may allow the attaching creditor to pay or tender the amount due to the trustee, and he or she shall thereupon deliver such property, as provided in this subchapter, to the officer holding the execution.

HISTORY: Amended 2018, No. 8 (Sp. Sess.), § 5, eff. June 28, 2018.

History

Source.

V.S. 1947, § 1848. P.L. § 1795. G.L. § 1985. P.S. § 1706. V.S. § 1351. R.L. § 1115. G.S. 34, § 33. R.S. 29, § 24.

Amendments

—2018 (Sp. Sess.) Substituted “as provided in this subchapter” for “as hereinbefore provided” preceding “to the officer”.

§ 3126. Performance of contract or condition by creditor.

When such property is held for a purpose other than to secure the payment of money, and the contract, condition, or other thing to be performed is such as can be performed by the attaching creditor without damage to the other parties, the court may order the performance thereof by him or her. Upon such performance or tender thereof, the trustee shall deliver the property, as hereinbefore provided, to the officer holding the execution.

History

Source.

V.S. 1947, § 1849. P.L. § 1796. G.L. § 1986. P.S. § 1707. V.S. § 1352. R.L. § 1116. G.S. 34, § 34. R.S. 29, § 25.

§ 3127. Reimbursement of creditor from proceeds of sale.

Personal property received by the officer under sections 3124-3126 of this title shall be sold as if it had been taken on execution in the common form, except that out of the proceeds of the sale the officer shall repay to the attaching creditor the amount paid by him or her to the trustee for keeping or redeeming the same, with interest thereon, or shall indemnify the creditor for such other act or thing as he or she has done pursuant to the order of the court for the redemption of such property.

History

Source.

V.S. 1947, § 1850. P.L. § 1797. G.L. § 1987. P.S. § 1708. V.S. § 1353. R.L. § 1117. G.S. 34, § 35. R.S. 29, § 26.

CROSS REFERENCES

Execution, see ch. 111 of this title.

§ 3128. Disposal of property by trustee before payment or tender.

The provisions of this chapter shall not prevent the trustee from selling personal property in his or her hands for the payment of the demand for which it is mortgaged, pledged, or otherwise liable, before the amount due him or her is paid or tendered, as before provided, if such sale is authorized by the terms of the contract between him or her and the defendant.

History

Source.

V.S. 1947, § 1851. P.L. § 1798. G.L. § 1988. P.S. § 1709. V.S. § 1354. R.L. § 1118. G.S. 34, § 36. R.S. 29, § 27.

§ 3129. Trustee’s liability on refusal to deliver property.

When a trustee does not deliver personal property in his or her hands, when lawfully required by the officer serving the execution, he or she shall be liable to the plaintiff in the action for the value thereof, after deducting the amount, if any, of his or her lien, to be recovered in an action of tort on this statute.

History

Source.

V.S. 1947, § 1852. P.L. § 1799. G.L. § 1989. P.S. § 1710. V.S. § 1355. R.L. § 1119. G.S. 34, § 37. R.S. 29, § 28. R. 1797, p. 502, § 5.

References in text.

The reference to “an action of tort” is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

ANNOTATIONS

Prior law.

Under revised code of 1839 if trustee refused or neglected to deliver specific articles to officer when lawfully required to do so he was liable to plaintiff for value of them in action on the case. Rice v. Talmadge, 20 Vt. 378, 1848 Vt. LEXIS 51 (1848).

§ 3130. Trustee not liable for destruction of property without his or her fault.

When a person is adjudged a trustee on account of personal property in his or her hands, and the same is destroyed without his or her negligence or default after the judgment and before demand therefor by the officer holding the execution, the trustee shall be discharged from liability to the plaintiff for not delivering the same. When a suit is commenced against him or her for not delivering the property, the destruction shall constitute a defense.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 84, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1853. P.L. § 1800. G.L. § 1990. P.S. § 1711. V.S. § 1356. R.L. § 1120. G.S. 34, §§ 38, 39. R.S. 29, §§ 60, 61.

Amendments

—1971 (Adj. Sess.). Rephrased and omitted reference to general denial.

§ 3131. Defense of trustee sued for not delivering property.

If a trustee is sued for not delivering to the officer personal property in his or her hands, any matter of discharge occurring after he or she was adjudged trustee shall constitute a defense, if that matter would be a good discharge in an action brought against a sheriff if he or she had attached the property.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 85, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1854. P.L. § 1801. G.L. § 1991. P.S. § 1712. V.S. § 1357. R.L. § 1121. G.S. 34, § 40. R.S. 29, § 62.

Amendments

—1971 (Adj. Sess.). Rephrased and omitted reference to general denial.

§ 3132. Claims of third persons—Appearance; notice.

When it appears that goods, effects, or credits in the hands of an alleged trustee are claimed by another person, the court may permit such claimant to appear and maintain his or her right. If he or she does not appear, notice for that purpose may be issued and served on him or her in such manner as the court directs.

History

Source.

V.S. 1947, § 1855. P.L. § 1802. G.L. § 1992. P.S. § 1713. V.S. § 1358. R.L. § 1122. G.S. 34, § 54. R.S. 29, § 16.

CROSS REFERENCES

Subsequent attaching creditors, see §§ 3331-3334 of this title.

ANNOTATIONS

Parties.

Plaintiff who obtained summary judgment against husband and moved for trustee process to satisfy the judgment with bank account held by husband and wife in the name “Rita Larose or Albert Larose” could not successfully claim that as wife was not a party husband could not claim the account could not be used to satisfy the debt because of wife’s interest in the account, on the ground that a principle of standing is that one party ordinarily cannot assert the rights of another, as husband had an interest in protecting what might prove to be property held by the entirety, and wife’s interest was so great, in view of fact she deposited the funds after her father left them to her upon his death and husband’s name was not originally on the account, that fundamental fairness required that wife be officially made a party. The Beacon Milling Co., Inc. v. Larose, 138 Vt. 457, 418 A.2d 32, 1980 Vt. LEXIS 1259 (1980).

§ 3133. Third person as party; recognizance; trial of title.

When the claimant appears, he or she may be admitted as party to the action for the purpose of maintaining his or her title to the goods, effects, or credits in question, and the title shall be tried and determined in the same manner as the liability of the trustee.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 86, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1856. P.L. § 1803. G.L. § 1993. P.S. § 1714. V.S. § 1359. R.L. § 1123. G.S. 34, § 55. 1851, No. 6 . R.S. 29, § 17.

Amendments

—1971 (Adj. Sess.). Rephrased and omitted provisions relating to filing statement of claim and security for costs.

CROSS REFERENCES

Intervention, procedure, see V.R.C.P. 24(c).

ANNOTATIONS

Admission by order of court.

Claimant has no standing in court unless he has been admitted by order of court. Rowell v. Felker, 54 Vt. 526 (1881).

Evidence.

Evidence was sufficient to show right or title in claimant. Stevens v. Fullington, 59 Vt. 671, 10 A. 829, 1887 Vt. LEXIS 171 (1887); Davis v. Willey, 57 Vt. 125, 1884 Vt. LEXIS 8 (1884); Crawford v. Gould, 52 Vt. 409, 1880 Vt. LEXIS 151 (1880); Way, Titus & Co. v. Pierce, 51 Vt. 326, 1878 Vt. LEXIS 167 (1878).

To entitle claimant to funds in hands of trustee, he must show present legal right thereto; it was not sufficient to show valid claim or right of action against the defendant. Sibley v. Johnson, 43 Vt. 67, 1870 Vt. LEXIS 48 (1870).

Where it appeared that by arrangement between principal defendant, trustee, and claimant, made for purpose of protecting former’s property from attachment by his creditors, claimant held himself out as owner of defendant’s property, and executed fictitious bill of sale thereof to trustee, and delivered property to him and took his note therefor, transaction, though void as to bona fide creditors of defendant, was valid as to parties to it, and therefore it was competent for claimant to show before commissioner that plaintiff was not bona fide creditor of defendant, but was merely prosecuting suit for latter’s benefit. Boutwell v. McClure, 30 Vt. 674 (1858), same case 34 Vt. 235.

Filing of findings.

Provision of this section that title of claimant to fund held under trustee process shall be tried and determined in same manner as liability of trustee does not entitle either party to such proceedings to trial by jury and therefore does not make filing of findings of fact obligatory in order to procure review under § 2425 of this title. Grant v. Goodrich, 109 Vt. 462, 199 A. 246, 1938 Vt. LEXIS 156 (1938).

Infant.

Where infant became party to a trustee process, as claimant, it should appear, in order to render proceeding conclusive against him, that his rights were actually tried on evidence and adjudicated, and also that he appeared by guardian, as in case of infant defendant, and not by next friend. Keeler v. Fassett, 21 Vt. 539, 1849 Vt. LEXIS 72 (1849).

Judgment.

Where court rendered judgment that fund sought to be attached belonged to claimant, it concluded not only claimant and trustee, but established judicially that fund was property of claimant, and for that reason not attachable by trustee process as property of defendant. Fisher v. Williams, 56 Vt. 586, 1884 Vt. LEXIS 100 (1884).

Judgment in favor of claimant did not determine what, if anything, was due claimant from trustee; but when judgment was rendered trustee was discharged, and claimant was left to pursue his remedy against him the same as though no trustee suit had ever been brought, and trustee had same right to defend. Carpenter v. McClure, 37 Vt. 127 (1864), same case 38 Vt. 375, 39 Vt. 9, 40 Vt. 108.

—Generally.

Claimant of effects in hands of person summoned as trustee in suit before justice could only appeal, if at all, in such cases as were appealable by other parties. Cabot v. Burnham, 28 Vt. 694 (1856).

Motion to discharge trustees.

Document entitled “Motion to Discharge Trustees” and purporting to be signed by principal defendant and his wife was treated by Supreme Court as claim under this section to fund in question by principal defendant and his wife as property held by entirety, since it was so treated by parties and court below. Grant v. Goodrich, 109 Vt. 462, 199 A. 246, 1938 Vt. LEXIS 156 (1938).

Hearing by court of so-called motion to discharge trustees was not trial of “a question of fact that entitled either party to trial thereof by jury” within provisions of § 2425 of this title limiting review when such questions are tried by court to facts reduced to writing and filed by court below. Grant v. Goodrich, 109 Vt. 462, 199 A. 246, 1938 Vt. LEXIS 156 (1938).

Necessary parties.

Plaintiff who obtained summary judgment against husband and moved for trustee process to satisfy the judgment with bank account held by husband and wife in the name “Rita Larose or Albert Larose” could not successfully claim that as wife was not a party husband could not claim the account could not be used to satisfy the debt because of wife’s interest in the account, on the ground that a principle of standing is that one party ordinarily cannot assert the rights of another, as husband had an interest in protecting what might prove to be property held by the entirety, and wife’s interest was so great, in view of fact she deposited the funds after her father left them to her upon his death and husband’s name was not originally on the account, that fundamental fairness required that wife be officially made a party. The Beacon Milling Co., Inc. v. Larose, 138 Vt. 457, 418 A.2d 32, 1980 Vt. LEXIS 1259 (1980).

—Generally.

Plaintiff could not object to claimant being heard before commissioner because allegations were not filed where plaintiff waived such filing. Carr v. Sevene, 47 Vt. 574, 1874 Vt. LEXIS 109 (1874).

Objection that trustee could not be held because joint debt could not be subject of trustee process was properly raised by claimant whose claim was not valid. Fairchild v. Lampson, 37 Vt. 407, 1865 Vt. LEXIS 2 (1865).

Plea in abatement.

Person who was admitted as claimant could not plead in abatement. McKenzie v. Ransom, 22 Vt. 324, 1850 Vt. LEXIS 36 (1850).

§ 3134. Costs.

When such claimant is so admitted, the court, in its discretion, may award costs between such claimant and the attaching creditor and the alleged trustee, or either such creditor or trustee, as justice may require.

History

Source.

V.S. 1947, § 1857. P.L. § 1804. G.L. § 1994. P.S. § 1715. V.S. § 1360. R.L. § 1124. G.S. 34, § 56. R.S. 29, § 19.

ANNOTATIONS

Discretion of trial court.

Awarding of costs to or against claimant was matter of discretion to be exercised by trial court and Supreme Court could make no order as to such costs. National Union Bank v. Brainerd, 65 Vt. 291, 26 A. 723, 1893 Vt. LEXIS 56 (1893); Laclair v. Reynolds & Co., 50 Vt. 418, 1878 Vt. LEXIS 4 (1878).

§ 3135. Death of trustee—Attachment not discharged; liability of representative.

When a person summoned as trustee in his or her own right dies before the judgment recovered by the plaintiff is satisfied, the goods, effects, and credits in his or her hands at the time of the attachment shall remain bound thereby, and his or her executor or administrator shall be liable therefor, as if the process had been originally served on him or her.

History

Source.

V.S. 1947, § 1873. P.L. § 1820. G.L. § 2010. P.S. § 1731. V.S. § 1376. R.L. § 1140. G.S. 34, § 66. R.S. 29, § 48.

§ 3136. Representative may appear or be cited.

When the person so summoned dies before judgment in the original action, his or her executor or administrator may appear voluntarily or may be cited to appear, and the proceedings shall then be conducted as if the executor or administrator, in that capacity, had been originally summoned as trustee, except that the examination of the deceased, if any had been taken, shall have the same effect as if he or she were living.

History

Source.

V.S. 1947, § 1874. P.L. § 1821. G.L. § 2011. P.S. § 1732. V.S. § 1377. R.L. § 1141. G.S. 34, § 67. R.S. 29, § 49.

ANNOTATIONS

Continuance until estate settled.

Since executor cited to appear was chargeable only for such sum as should be ordered by probate court to be paid on the debt as proved before the commissioners on estate, it was necessary for court in which trustee suit was pending to continue it as to trustee until debt attached had been proved in usual course of proceedings in settlement of estates, and an order of distribution of assets had been made, to enable executor or administrator to file his disclosure. Hurlburt Bros. v. Hinde, 86 Vt. 517, 86 A. 739, 1913 Vt. LEXIS 228 (1913).

Sufficiency of disclosure.

Where trustee died and his executrix was cited to appear, in accordance with this section, and her disclosure, alleging that she had not at time of citation on her, nor had the estate of deceased trustee, any goods, rights, or credits belonging to defendant, was as broad as citation, judgment could not be rendered against her because period covered by her disclosure did not extend to time of service of writ on trustee. Hurlburt Bros. v. Hinde, 86 Vt. 517, 86 A. 739, 1913 Vt. LEXIS 228 (1913).

Where under statute providing that all claims of an absolute or legal nature against decedent must within time limited be presented before commissioners on his estate for allowance, or they were barred, failure seasonably to present before commissioners of decedent’s estate for allowance mortgage debt absolutely due at time of service of trustee process on decedent bars claim, and no distributive share of assets of estate could be applied to pay that debt in favor either of principal debtor or attaching creditor in trustee process; hence executrix of deceased trustee properly ignored that debt in her written disclosure. Hurlburt Bros. v. Hinde, 86 Vt. 517, 86 A. 739, 1913 Vt. LEXIS 228 (1913).

§ 3137. Default for nonappearance after notice.

When, after notice, such executor or administrator does not appear, the plaintiff may take judgment against him or her by default, as if he or she had been summoned as trustee by an original process.

History

Source.

V.S. 1947, § 1875. P.L. § 1822. G.L. § 2012. P.S. § 1733. V.S. § 1378. R.L. § 1142. G.S. 34, § 68. R.S. 29, § 50.

§ 3138. Representative to pay on execution if trustee dies after judgment.

When the person originally summoned as trustee dies after judgment in the original action, his or her executor or administrator shall pay on the execution such sum as he or she would have been required to pay, if the amount for which such deceased person was adjudged trustee had been a legal debt against his or her estate.

History

Source.

V.S. 1947, § 1876. P.L. § 1823. G.L. § 2013. P.S. § 1734. V.S. § 1379. R.L. § 1143. G.S. 34, § 69. R.S. 29, § 51.

§ 3139. Plaintiff’s remedy when representative does not pay.

When an executor or administrator does not deliver or pay on execution what he or she is required by the provisions of this chapter to deliver or pay, the plaintiff in the trustee process shall have the same remedy against him or her, or upon his or her administration bond, as the defendant in the trustee process would have had.

History

Source.

V.S. 1947, § 1877. P.L. § 1824. G.L. § 2014. P.S. § 1735. V.S. § 1380. R.L. § 1144. G.S. 34, § 70. R.S. 29, § 52.

§ 3140. Pending action against trustee—Action to proceed; continuance for judgment.

When the defendant is summoned as trustee of the plaintiff, during the pendency of an action, the first action may proceed so far as to ascertain by a verdict, award, or otherwise, what sum is due from the defendant. Such action shall not be delayed by the trustee process unless the court, for cause shown, continues the same for judgment until the termination of such trustee process or until the trustee is discharged.

History

Source.

V.S. 1947, § 1858. P.L. § 1805. G.L. § 1995. P.S. § 1716. V.S. § 1361. R.L. § 1125. G.S. 34, § 41. R.S. 29, § 30.

ANNOTATIONS

Chancery suit.

Where trustee disclosed that suit in chancery was commenced by principal debtor against him, calling for an account, and was set down for trial before service of trustee process, and was heard by chancellor before filing disclosure, but not decided, he was not chargeable under trustee process. Wadsworth v. Clark, 14 Vt. 139, 1842 Vt. LEXIS 23 (1842).

Stay of execution.

Where defendant, in suit pending, was summoned as trustee of plaintiff, and was adjudged trustee for full amount of plaintiff’s claims against him, which judgment remains unsatisfied, judgment should be rendered for plaintiff in first suit for amount of his claim, but court would order execution stayed, until plaintiff shall cause defendant to be released from trustee suit. Spicer v. Spicer, 23 Vt. 678, 1851 Vt. LEXIS 91 (1851).

§ 3141. Application for continuance; effect of denial.

On application of the plaintiff in the trustee process the court may continue the first action on reasonable terms. If such action is not continued and judgment is rendered against the defendant, he or she shall not afterwards be adjudged a trustee on account of the demand so recovered against him or her, while he or she is liable to an execution on such judgment.

History

Source.

V.S. 1947, § 1859. P.L. § 1806. G.L. § 1996. P.S. § 1717. V.S. § 1362. R.L. § 1126. G.S. 34, § 42. R.S. 29, § 31.

ANNOTATIONS

Entry of trustee process.

Plaintiff could enter in pending suit and move that same be continued to await conclusion of his trustee process, although his own suit had not yet been entered in court. Collins v. Richardson, 66 Vt. 89, 28 A. 877, 1894 Vt. LEXIS 71 (1894).

§ 3142. Payment made on judgment in trustee action allowed.

When, before final judgment in the first action, the defendant therein is adjudged a trustee in the other and pays thereon the money demanded in the first action, or a part thereof, the fact shall be stated on the record of such action, and judgment shall be rendered thereon for the costs due to the plaintiff, and for such part of the debt or damages as remains due and unpaid.

History

Source.

V.S. 1947, § 1860. P.L. § 1807. G.L. § 1997. P.S. § 1718. V.S. § 1363. R.L. § 1127. G.S. 34, § 43. R.S. 29, § 32.

§ 3143. Fraudulent conveyance and assignment—Trustee with title void as to creditors; examination.

When a person summoned as a trustee has in his or her possession goods, effects, or credits of the defendant, which he or she holds by a conveyance or title void as to the creditors of the defendant, he or she may be adjudged a trustee on account thereof, although the defendant could not have maintained an action therefor against him or her; and, in its discretion, the court may order a person so summoned to appear personally before the court and submit to an oral examination.

History

Source.

V.S. 1947, § 1865. P.L. § 1812. G.L. § 2002. P.S. § 1723. V.S. § 1368. R.L. § 1132. G.S. 34, §§ 48, 49. 1842, No. 9 , § 9. R.S. 29, § 34.

ANNOTATIONS

Assignees of note.

Where defendant assigned certain property, including promissory note, payable to himself, in consideration of his future support, without reserving enough to pay his debts and assignees surrendered note, receiving therefor part cash and new note running to themselves, assignees of note were chargeable as trustees under this section, and, as they had received from income of real estate transferred to them by defendant sum greater than their expenditures for defendant’s support, there was no occasion for considering such expenditures as affecting the amount for which they were chargeable. Ludlow Sav. Bank & Trust Co. v. Knight, 92 Vt. 171, 102 A. 51, 1917 Vt. LEXIS 308 (1917).

Burden of proof.

Where it appeared from findings that defendant owed trustee an honest debt and that there was valuable consideration for conveyance of property to her, burden was on plaintiff to prove that defendant conveyed property to trustee with intent to defraud his other creditors and that she participated in fraudulent intent, at least to extent of having knowledge of such intent on part of defendant. Holstein v. Blanchette, 108 Vt. 30, 182 A. 289, 1936 Vt. LEXIS 145 (1936).

Fraudulent conveyance actions.

Where a debtor has no right to assets held by a trustee, a creditor may bring an action against the trustees in order to set aside a fraudulent conveyance. Marble Bank v. Heaton, 160 Vt. 188, 624 A.2d 365, 1993 Vt. LEXIS 31 (1993).

Fraudulent conveyance action was not established under statute allowing creditors to bring actions against a debtor’s trustee when no factual basis for court to rule was disclosed by trustees because plaintiff had failed to provide notice that trustee process had been issued. Marble Bank v. Heaton, 160 Vt. 188, 624 A.2d 365, 1993 Vt. LEXIS 31 (1993).

Preference.

Under this section creditor cannot be adjudged trustee of property conveyed to him by his debtor simply because conveyance operates to prefer him over other creditors of debtor, but conveyance must be void as to creditors of debtor. Holstein v. Blanchette, 108 Vt. 30, 182 A. 289, 1936 Vt. LEXIS 145 (1936); Gregory, Tilton & Co. v. Harrington, 33 Vt. 241, 1860 Vt. LEXIS 101 (1860).

Real estate.

Real estate is not included in enumeration of “goods, effects or credits,” as used in this section. Ludlow Sav. Bank & Trust Co. v. Knight, 92 Vt. 171, 102 A. 51, 1917 Vt. LEXIS 308 (1917); Hunter v. Case, 20 Vt. 195, 1848 Vt. LEXIS 18 (1848); Drew v. Corliss, 65 Vt. 650, 27 A. 613, 1893 Vt. LEXIS 109 (1893).

§ 3144. Execution against trustee; arrest.

An execution shall issue against the goods, chattels, or estate of the trustee, unless the court, upon motion and hearing, finds that the trustee did not act in good faith in taking the conveyance or title. If the court so finds, a certificate thereof shall be indorsed by the clerk upon the writ of execution, and the writ shall be directed against the body, as well as the goods, chattels, or estate of the trustee.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 87, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1866. P.L. § 1813. G.L. § 2003. P.S. § 1724. V.S. § 1369. R.L. § 1133. G.S. 34, § 51. 1843, No. 11 . 1842, No. 9 , § 10.

Amendments

—1971 (Adj. Sess.). Rephrased, substituted “upon motion and hearing” for “at the time of rendering judgment” and added references to “writ”.

CROSS REFERENCES

Execution of judgments, see V.R.C.P. 69.

§ 3145. Validity of sale or assignment may be inquired into.

When it appears that a trustee had been notified of the sale or assignment of a demand for which he or she would otherwise be adjudged trustee, either of the parties to the trustee process may raise the question of the validity of such sale or assignment, and the person giving notice to the trustee may be summoned as a witness and compelled to testify to the consideration upon which such sale or assignment was made. When it is found upon the evidence that such sale or assignment was not made in good faith, the trustee shall be adjudged liable as though the pretended sale or assignment had not been made.

History

Source.

V.S. 1947, § 1867. P.L. § 1814. G.L. § 2004. P.S. § 1725. V.S. § 1370. R.L. § 1134. G.S. 34, § 47. 1852, No. 4 . 1841, No. 8 .

ANNOTATIONS

Burden of proof.

Where trustee served with trustee process did not retain possession of fund until plaintiff could contest validity of certain orders given by principal defendant transferring fund, but accepted those orders and paid over fund, such payments were prima facie voluntary, and trustee had burden of showing their validity as against plaintiff. Peck v. Monahan, 87 Vt. 312, 89 A. 358, 1914 Vt. LEXIS 239 (1914).

Full cross-examination.

Plaintiff had right to cross-examine the claimant fully as to consideration on which assignment was made. Dow v. Taylor, 71 Vt. 337, 45 A. 220, 1899 Vt. LEXIS 187 (1899).

§ 3146. Mortgagor of personal property summoned as trustee of mortgagee—Mortgagee defined.

The word “mortgagee” as used in sections 3147-3152 of this title shall be construed to mean the mortgagee, assignee of the mortgagee, or other person holding his or her interest.

History

Source.

V.S. 1947, § 1837. P.L. § 1784. G.L. § 1974. P.S. § 1695. V.S. § 1346. R.L. § 1110. 1880, No. 34 , § 8.

§ 3147. Attachment of mortgagee’s interest.

When a mortgagor of personal property is summoned as trustee of the mortgagee, the plaintiff may direct the officer serving the writ to attach the mortgagee’s interest in such property. The officer when so directed shall attach such interest by leaving a copy of the writ in the town clerk’s office where the mortgage is recorded, with his or her return thereon describing the property and the interest of the mortgagee therein. The town clerk shall enter upon the margin of the record of such mortgage, a statement that the interest of the mortgagee is attached, and make such other record and entry as is required by law to be made where property is attached by copy.

History

Source.

V.S. 1947, § 1838. P.L. § 1785. G.L. § 1975. P.S. § 1696. V.S. § 1339. R.L. § 1103. 1880, No. 34 , § 1.

§ 3148. Held to satisfy execution against trustee.

The property so attached shall be holden to satisfy any execution issuing upon or in action on a judgment rendered against the trustee in the original action, in the same manner and to the same extent that property attached as the property of the defendant in an action and taken into the actual possession of the officer making the attachment is held to satisfy an execution against such defendant.

History

Source.

V.S. 1947, § 1839. P.L. § 1786. G.L. § 1976. P.S. § 1697. V.S. § 1340. R.L. § 1104. 1880, No. 34 , § 2.

§ 3149. Mortgagee not to sell attached property.

The mortgagee whose interest is so attached shall not sell or dispose of such property while the attachment is in force or while the liability of the trustee is undetermined or continues.

History

Source.

V.S. 1947, § 1840. P.L. § 1787. G.L. § 1977. P.S. § 1698. V.S. § 1341. R.L. § 1105. 1880, No. 34 , § 3.

§ 3150. Purchaser’s title in property sold on execution.

Property so attached may be sold upon an execution issuing by reason of a judgment rendered against the trustee, either in the original action or in an action on a judgment rendered in the original action, and the title and interest of the mortgagor, mortgagee, or other person to and in such property shall pass to the purchaser of the property as such sale.

History

Source.

V.S. 1947, § 1841. P.L. § 1788. G.L. § 1978. P.S. § 1699. V.S. § 1342. R.L. § 1106. 1880, No. 34 , § 4.

§ 3151. Trustee may file bond and sell property.

When such action is pending in the Supreme or Superior Court, the trustee may sell the property, and the purchaser shall hold the same released from the mortgage and attachment, if such trustee files with the clerk of the court:

  1. a bond to the plaintiff in a sum equal to the amount for which attachment is directed in the writ, with sufficient sureties, approved by such clerk or judge, conditioned that such trustee will pay the judgment rendered against him or her in the action; and
  2. a bond to the defendant in a penal sum double the amount of the mortgage debt, with sureties approved as aforesaid, conditioned that he or she will pay the balance due upon the mortgage after paying such judgment and that, if discharged as trustee, he or she will pay the amount secured by the mortgage.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 79.

History

Source.

V.S. 1947, § 1842. P.L. § 1789. G.L. § 1979. 1917, No. 254 , § 1942. P.S. § 1700. V.S. § 1343. R.L. § 1107. 1880, No. 34 , § 5.

Amendments

—2009 (Adj. Sess.) Substituted “supreme or superior court” for “supreme, superior, or district court”, “the court” for “such court” and deleted “or with the judge of such district court” in the introductory paragraph.

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court” in the first sentence of the introductory paragraph.

—1965. Substituted “district” for “municipal” court.

§ 3152. Mortgagee may file bond and release property.

When such action is pending in such a court, the trustees shall be discharged and the attachment dissolved if the mortgagee, in the manner provided in section 3151 of this title, files a bond in a sum equal to the amount for which attachment is directed in the writ, with sufficient sureties approved by such clerk or judge, conditioned that he or she will pay the judgment that may be rendered against him or her.

History

Source.

V.S. 1947, § 1843. P.L. § 1790. G.L. § 1980. P.S. § 1701. V.S. § 1344. R.L. § 1108. 1880, No. 34 , § 6.

§ 3153. Action by assignee of negotiable paper after judgment against maker—Pleading judgment in bar; citation of plaintiff in trustee action.

When a person is held as trustee upon a negotiable paper in an action in which a claimant does not appear or is not cited in, and an action is afterwards brought against the trustee upon such paper by an assignee thereof, the trustee may plead the former judgment against himself or herself in bar. The court shall thereupon issue a citation, and such assignee shall cause it to be served on the plaintiff in the trustee process or his or her attorney of record.

History

Source.

V.S. 1947, § 1886. P.L. § 1833. G.L. § 2023. P.S. § 1744. V.S. § 1389. R.L. § 1154. 1874, No. 64 , § 1.

§ 3154. Court to decide to whom judgment belongs.

The court shall try the action upon such negotiable paper between the assignee and plaintiff in the trustee process, as though the assignee had been cited to appear as claimant in such process. The judgment in such action against the trustee shall not be conclusive of the rights of the assignee and of such plaintiff, but the court shall decide to which of the parties such judgment belongs.

History

Source.

V.S. 1947, § 1887. P.L. § 1834. G.L. § 2024. P.S. § 1745. V.S. § 1390. R.L. § 1155. 1874, No. 64 , § 1.

§ 3155. Proceedings if judgment belongs to assignee.

When the court decides in favor of the assignee, it shall adjudge such judgment against the trustee to be the property of the assignee, and it may be enforced by him or her at his or her expense in the name of the plaintiff in the first action, if it has not been previously paid. When the trustee has paid it in whole or in part to the plaintiff in the trustee process, the assignee shall have judgment against such plaintiff for the sum so paid, and may enforce against the trustee any part of the judgment not paid.

History

Source.

V.S. 1947, § 1888. P.L. § 1835. G.L. § 2025. P.S. § 1746. V.S. § 1391. R.L. § 1156. 1874, No. 64 , § 1.

§ 3156. Mode of trial; costs.

Either party may have the facts tried by jury or commissioner, as in other causes. Costs shall be allowed between the parties as the court deems just.

History

Source.

V.S. 1947, § 1889. P.L. § 1836. G.L. § 2026. P.S. § 1747. V.S. § 1392. R.L. § 1157. 1874, No. 64 , § 2.

§§ 3157-3164. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former §§ 3157-3164. Former § 3157, relating to disclosure of proceedings before justices, was derived from V.S. 1947, § 1878; P.L. § 1825; G.L. § 2015; P.S. § 1736; V.S. § 1381; R.L. § 1146; G.S. 34, § 74; and 1847, No. 44 , § 2.

Former § 3158, relating to written notice and immediate trial, was derived from V.S. 1947, § 1879; P.L. § 1826; G.L. 2016; P.S. § 1737; V.S. § 1382; R.L. § 1147; G.S. 34, § 75; R.S. 29, § 63; and 1838, No. 5 , § 1.

Former § 3159, relating to service of notice, was derived from V.S. 1947, § 1880; P.L. § 1827; G.L. 2017; P.S. § 1738; V.S. § 1383; R.L. § 1148; G.S. and § 76.

Former § 3160, relating to trial on trustee’s liability, was derived from V.S. 1947, § 1881; P.L. § 1828; G.L. 2018; P.S. § 1739; V.S. § 1384; R.L. § 1149; G.S. 34, § 77; and R.S. 29, § 65.

Former § 3161, relating to appeals from justices; right to appeal and procedure, was derived from V.S. 1947, § 1882; P.L. § 1829; G.L. 2019; 1915, No. 91 , § 17; P.S. § 1740; V.S. § 1385; R.L. § 1150; G.S. 34, §§ 80, 81, 85, 86; 1847, No. 46 , §§ 1, 2; 1842, No. 9 , § 4; R.S. 29, § 57; and 1838, No. 14 , § 1, and amended by 1971, No. 185 (Adj. Sess.), § 88.

Former § 3162, relating to judgment against defendant if only trustee appeals, was derived from V.S. 1947, § 1883; P.L. § 1830; G.L. 2020; P.S. § 1741; V.S. § 1386; R.L. § 1151; G.S. 34, §§ 81, 84; and 1842, No. 9 , §§ 5, 8.

Former § 3163, relating to costs when trustee appeals, was derived from V.S. 1947, § 1884; P.L. § 1831; G.L. 2021; P.S. § 1742; V.S. § 1387; R.L. § 1152; G.S. 34, § 82; and 1842, No. 9 , § 6.

Former § 3164, relating to failure to enter appeal, was derived from V.S. 1947, § 1885; P.L. § 1832; G.L. 2022; P.S. § 1743; V.S. § 1388; R.L. § 1153; G.S. 34, § 83 and 1842, No. 9 , § 7.

§ 3165. Repealed. 1979, No. 67, § 9, eff. date, see note set out below.

History

Former § 3165. Former § 3165, relating to employer prohibited from discharging employee due to trustee process, was derived from 1967, No. 323 (Adj. Sess.), § 1, and amended by 1969, No. 207 (Adj. Sess.), § 7.

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

§ 3166. Compensation assignments, employer acceptance required.

  1. If the compensation of a person due him or her for work and labor performed is attached under this chapter, the employer of the person shall, upon the request of the employee, accept a compensation assignment in an amount not in excess of 10 percent of the employee’s compensation, payable to the attaching creditor or his or her agent.
  2. If the employer fails to accept the assignment within 10 days from the date that it is presented to him or her, he or she shall be liable to the creditor in the same manner as if the assignment had been formally accepted.

HISTORY: Added 1967, No. 323 (Adj. Sess.), § 2, eff. March 22, 1968.

§ 3167. Enforcement of money judgments; trustee process against earnings.

Trustee process against earnings may not be used in connection with the enforcement of a money judgment in any civil action until the judgment becomes final, and then only in accordance with sections 3168-3171 of this title.

HISTORY: Added 1979, No. 67 , § 2, eff. date, see note set out below.

History

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

Vermont Rules of Civil Procedure. For effectiveness of V.R.C.P., see note set out under § 2681 of this title.

ANNOTATIONS

Control.

Trustee process against earnings may not be defeated in cases where the judgment-debtor employee controls the corporate-trustee employer. Winey v. Cutler, 165 Vt. 566, 678 A.2d 1261, 1996 Vt. LEXIS 52 (1996) (mem.).

Law Reviews —

Trustee Process Against Earnings in Vermont, see 5 Vt. L. Rev. 133 (1980).

§ 3168. Motion for issuance of trustee process; scheduling and notice of hearing.

  1. Whenever a judgment debtor has neglected or refused to pay or make reasonable arrangements to pay a money judgment in any civil action, the judgment creditor may move the court which rendered the judgment to issue trustee process against the earnings of the judgment debtor.  The motion shall describe in detail the grounds for requesting issuance of trustee process, the amount of judgment alleged to be unpaid, and the source of earnings of the judgment debtor.
  2. Upon receipt of the motion of the judgment creditor, the court shall give notice thereof to the trustee and to the judgment debtor as provided by Rule 4.2 of the Rules of Civil Procedure and shall hold a hearing on the motion.

HISTORY: Added 1979, No. 67 , § 2, eff. date, see note set out below.

History

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

Vermont Rules of Civil Procedure. For effectiveness of V.R.C.P., see note set out under § 2681 of this title.

§ 3169. Hearing on motion; findings; order.

  1. At the hearing on the motion the court shall determine on the basis of the motion and any affidavit of the judgment creditor, the record in the civil action and any testimony offered by either party, and by the trustee whether the judgment debtor has neglected or refused to pay or make reasonable arrangements to pay the money judgment in question.  If the court so finds, it shall also determine:
    1. the amount of the judgment unpaid;
    2. the amount of the judgment debtor’s weekly disposable earnings;
    3. whether the judgment debtor has been a recipient of assistance from the Vermont Department for Children and Families or the Department of Vermont Health Access within the two months preceding the date of the hearing; and
    4. the weekly expenses reasonably incurred for maintenance of the debtor and dependents, and it shall enter an order approving the issuance of trustee process against earnings in accordance with, and subject to the provisions of section 3170 of this title.
  2. For the purposes of sections 3167-3172 of this title:
    1. The term “earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.
    2. The term “earnings” also means proceeds from the sale of milk with respect to an individual engaged in the occupation of dairy farming.
    3. The term “disposable earnings” means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.

HISTORY: Added 1979, No. 67 , § 2, eff. date, see note set out below; amended 1981, No. 58 ; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 17; 2009, No. 156 (Adj. Sess.), § I.16.

History

Amendments

—2009 (Adj. Sess.) Subdiv. (a)(3): Substituted “department” for “office”.

—2005 (Adj. Sess.). Subdiv. (a)(3): Substituted “department for children and families or the office of Vermont health access” for “department of prevention, assistance, transition, and health access”.

—1999 (Adj. Sess.). Subdiv. (a)(3): Substituted “department of prevention, assistance, transition, and health access” for “department of social welfare”.

—1981. Subsec. (b): Added a new subdiv. (2) and redesignated former subdiv. (2) as present subdiv. (3).

Subdiv. (b)(3): Redesignated from subdiv. (2).

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

Vermont Rules of Civil Procedure. For effectiveness of V.R.C.P., see note set out under § 2681 of this title.

ANNOTATIONS

Definitions.

Compensation owed independent contractor for survey work did not come within the definition of “earnings” in subdivision (b)(1) of this section or the definition of “disposable earnings” in subdivision (b)(3). Olson v. Townsend, 148 Vt. 135, 530 A.2d 566, 1987 Vt. LEXIS 461 (1987).

§ 3170. Exemptions; issuance of order.

  1. No order approving the issuance of trustee process against earnings shall be entered against a judgment debtor who was, within the two-month period preceding the hearing provided in section 3169 of this title, a recipient of assistance from the Vermont Department for Children and Families or the Department of Vermont Health Access. The judgment debtor must establish this exemption at the time of hearing.
  2. The earnings of a judgment debtor shall be exempt as follows:
    1. 75 percent of the debtor’s weekly disposable earnings, or 30 times the federal minimum hourly wage, whichever is greater; or
    2. if the judgment debt arose from a consumer credit transaction, as that term is defined by 15 U.S.C. § 1602 and implementing regulations of the Federal Reserve Board, 85 percent of the debtor’s weekly disposable earnings, or 40 times the federal minimum hourly wage, whichever is greater; or
    3. if the court finds that the weekly expenses reasonably incurred by the debtor for his or her maintenance and that of dependents exceed the amounts exempted by subdivisions (1) and (2) of this subsection, such greater amount of earnings as the court shall order.
  3. After hearing, the court shall enter an appropriate order, which may provide for repetitive withholding from earnings, and which may, upon motion, be modified from time to time. The order shall state that section 3172 of this title prohibits discharge of the employee subject to the order because of the exercise of trustee process against the employee.
  4. Any waiver of the provisions of subsection (b) of this section shall be void.

HISTORY: Added 1979, No. 67 , § 2, eff. date, see note set out below; amended 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 18; 2009, No. 156 (Adj. Sess.), § I.17.

History

References in text.

The reference to 15 U.S.C. 1602, in subdiv. (b)(2), is codified as § 103 of the Truth in Lending Act.

Amendments

—2009 (Adj. Sess.) Subsec. (a): Substituted “department” for “office” preceding “of Vermont health” in the first sentence.

—2005 (Adj. Sess.). Subsec. (a): Substituted “for children and families or the office of Vermont health access” for “of prevention, assistance, transition, and health access”.

—1999 (Adj. Sess.). Subsec. (a): Substituted “department of prevention, assistance, transition, and health access” for “department of social welfare”.

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

Vermont Rules of Civil Procedure. For effectiveness of V.R.C.P., see note set out under § 2681 of this title.

ANNOTATIONS

Earnings.

Money earned by independent contractor was not entitled to the exemption from garnishment provided in subdivision (b)(1) of this section. Olson v. Townsend, 148 Vt. 135, 530 A.2d 566, 1987 Vt. LEXIS 461 (1987).

Not applicable to bankruptcy.

Court agreed with the bankruptcy court’s finding that a debtor could not claim an exemption for earnings under 12 V.S.A. § 3170(b)(1) , because the statute was designed for the purpose of restricting wage garnishment, and it was inapplicable to bankruptcy. Riendeau v. Canney, 293 B.R. 832, 2002 U.S. Dist. LEXIS 26460 (D. Vt. 2002), aff'd, 336 F.3d 78, 2003 U.S. App. LEXIS 13726 (2d Cir. 2003).

§ 3171. Service of order; liability of trustee.

  1. The order shall be served on the trustee at the request of the judgment creditor, and shall state the address of the judgment creditor to which amounts withheld are to be delivered, and the following warnings:
    1. no employee may be discharged from employment on account of trustee process issued against earnings;
    2. failure to withhold and deliver non-exempt earnings as directed herein may make you liable to the judgment creditor for the amounts you fail to withhold and deliver together with any costs, interest, and reasonable attorneys’ fees incurred in their collection.
  2. Any employer who fails to honor the order of the court shall be liable to the judgment creditor in the amounts that employer has failed to withhold and deliver together with any costs, interest, and reasonable attorneys’ fees incurred in their collection.  The judgment debtor shall have no additional liability for those costs, interest, or attorneys’ fees.
  3. As soon as reasonably practicable, the trustee shall notify the court and the judgment creditor of termination of the judgment debtor’s employment.
  4. Upon full satisfaction or payment of the debt upon which the judgment is based, the judgment creditor forthwith shall notify the employer of the judgment debtor, in writing, and the employer shall thereafter cease withholding from the earnings of the judgment debtor.

HISTORY: Added 1979, No. 67 , § 2, eff. date, see note set out below.

History

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

Vermont Rules of Civil Procedure. For effectiveness of V.R.C.P., see note set out under § 2681 of this title.

§ 3172. Employee protected.

No employee may be discharged from employment on account of trustee process issued to an employer against earnings. Discharge of an employee from employment within 60 days of service of a trustee process summons upon an employer shall be rebuttably presumed to be on account of the issuance of trustee process. Any employee discharged in violation of this section may sue in Superior Court for reinstatement of employment, back wages, and damages and, if that employee prevails, the court shall award costs and may award reasonable attorneys’ fees to the employee.

HISTORY: Added 1979, No. 67 , § 2, eff. date, see note set out below.

History

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

Vermont Rules of Civil Procedure. For effectiveness of V.R.C.P., see note set out under § 2681 of this title.

Chapter 123. Attachment of Property

Subchapter 1. Attachment Generally

§ 3221. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 3221. Former § 3221, which related to deduction of attachment, discharge, was derived from V.S. 1947, § 1579; P.L. § 1540; G.L. § 1756; P.S. § 1459; 1906, No. 63 , § 34; V.S. § 1110; 1890, No. 26 .

This section is now covered by V.R.C.P. 4.1(e).

Subchapter 2. Attachment of Personal Property

§ 3251. Attachment or levy of execution by filing.

When personal property is taken upon a writ of attachment or execution, the officer serving such process may lodge a copy of the same, with his or her return, in the office or offices proper for the filing of a financing statement to perfect a security interest in such property under 9A V.S.A. § 9-401. Such lodgment shall hold the property against all subsequent sales, attachments, or executions as if it had been actually removed and taken into the possession of the officer, and different officers thereafter may serve in like manner other writs of attachment or execution so as to create a valid subordinate lien upon the same property. Where such process is required by this section to be lodged in any office other than that of the town clerk in the town where the property is found, it shall be sufficient if the officer sends a copy of the process by registered or certified mail, return receipt requested, to the appropriate office.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 89, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1571. P.L. § 1532. G.L. § 1749. 1915, No. 87 . P.S. § 1452. V.S. § 1103. 1884, No. 99 , § 1. R.L. §§ 876, 878. 1878, No. 31 . 1878, No. 34 . 1876, no. 69. 1874, No. 76 . 1874, No. 77 . 1872, No. 47 . 1868, No. 43 . 1866, No. 38 . G.S. 33, § 25. 1859, No. 13 . 1856, No. 20 . 1850, No. 6 . 1848, No. 40 . R.S. 28, § 15. 1833, No. 6 . 1827, No. 2 . 1826, No. 1 . 1820, p. 25. 1817, p. 102.

Amendments

—1971 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Attachment and sale of corporate stock, see 11 V.S.A. § 274 .

Exemption of personal property from attachment and execution, see § 2740 of this title.

Security by creditor in case of doubt as to ownership or liability of chattels to attachment or execution, see § 2742 of this title.

ANNOTATIONS

Actions by officer to protect attached property.

Sale of property upon chattel mortgage was not a conversion as against an officer who had attached same by copy in town clerk’s office, where no possession was taken of property sold. Thorp v. Robbins, 68 Vt. 53, 33 A. 896, 1895 Vt. LEXIS 13 (1895).

Officer could maintain trespass against another officer who, subsequent to leaving copy in town clerk’s office and before copy was delivered to debtor, attached and removed the same property by virtue of a legal writ of attachment against same debtor. Putnam v. Clark, 17 Vt. 82, 1843 Vt. LEXIS 133 (1843).

Attachment of hay and grain by leaving copies agreeable to this section enabled the officer to maintain trespass against one who took or used the same. Stanton v. Hodges, 6 Vt. 64, 1834 Vt. LEXIS 13 (1834); Putnam v. Clark, 17 Vt. 82, 1843 Vt. LEXIS 133 (1843); McKormsby v. Morris, 29 Vt. 417, 1857 Vt. LEXIS 56 (1857).

An attachment made pursuant to this section gave sufficient title to officer to enable him to maintain trover, although he did not take actual possession. Lowry v. Walker, 5 Vt. 181 (1833), same case 4 Vt. 76.

Attaching property of corporations.

Provision for “holding” personal property without removal by lodging a copy in town clerk’s office pertains to both individuals and corporations and, in case of corporations, to both domestic and foreign. Kittredge v. The Fairbanks Company, 91 Vt. 174, 99 A. 1016, 1917 Vt. LEXIS 227 (1917).

Constitutional law.

This section is unconstitutional to the extent that it allows prejudgment nonpossessory attachment of personal property without adequate due process safeguards. Briere v. Agway, Inc., 425 F. Supp. 654, 1977 U.S. Dist. LEXIS 17962 (D. Vt. 1977).

Defects in process or service.

Where defendant was described in writ of summons and attachment as a corporation without designating the state of its incorporation, and service was made by attaching defendant’s property and lodging copy of writ in town clerk’s office pursuant to section 3251 of this title, and by delivery of copy to one described as defendant’s agent “for want of a designated service of process agent within this state”, the defect in description of defendant might be cured by amendment, and, since the jurisdiction of the property acquired by the attachment afforded a basis for retaining the suit, service might thereafter be perfected as required by statute. Kittredge v. The Fairbanks Company, 91 Vt. 174, 99 A. 1016, 1917 Vt. LEXIS 227 (1917).

Effect of defective return.

Return of service which did not contain or have appended to it a list or description of the goods or estate attached, but simply indicated service by delivery of the writ of attachment to the town clerk, was defective, and the attempt to attach was wholly inoperative and created no valid lien. Rodrigue v. Biron, 147 Vt. 90, 510 A.2d 1321, 1986 Vt. LEXIS 365 (1986).

When property is attached by leaving a copy of the writ in the town clerk’s office, the want of a return, or a defective return, upon the copy so left, was held to render attachment ineffectual because return is all that constitutes the attachment, and without the return it is impossible to determine what property was intended to be attached. McKenzie v. Ransom, 22 Vt. 324, 1850 Vt. LEXIS 36 (1850).

Evidence.

Proper evidence of an attachment was officer’s return on original writ, and until that was proved to have been lost, a copy was not admissible. Weeks v. Sowles, 58 Vt. 696, 6 A. 603, 1886 Vt. LEXIS 133 (1886).

Officer’s affidavit and certified copy of record of writ and return left in town clerk’s office were admissible as evidence. Pond v. Campbell, 56 Vt. 674, 1884 Vt. LEXIS 119 (1884).

Return of a sheriff, on a writ, is evidence in his behalf of the official acts therein contained. Stanton v. Hodges, 6 Vt. 64, 1834 Vt. LEXIS 13 (1834).

Necessity of possession.

Personal property could be attached or taken in execution as effectually by lodging a copy in town clerk’s office as by taking actual possession. Barron v. Smith, 63 Vt. 121, 21 A. 269, 1890 Vt. LEXIS 65 (1890).

Sufficiency of description of property attached.

Where an attachment is made by filing, pursuant to this section, the property attached must be described with reasonable certainty in the return or in an inventory annexed thereto, and must be sufficiently identified to inform the defendant and those with whom he may deal that the property is attached. Rodrigue v. Biron, 147 Vt. 90, 510 A.2d 1321, 1986 Vt. LEXIS 365 (1986).

Description of property sought to be attached as “six cows, five of said cows are the same bought of Byron Davis, of Greensboro, and one bought of McClary, of Greensboro,” created no lien in favor of the officer. Keniston v. Stevens, 66 Vt. 351, 29 A. 312, 1894 Vt. LEXIS 105 (1894).

Description “100 fleeces of wool, 100 sheep, two cows, 75 tons of hay, 450 tin sap buckets, one evaporator, one ox cart, one mowing machine, horse rake, one single sleigh, one buggy wagon, one Prescott organ, 40 bobbin logs, situated on defendant’s farm,” was sufficient, and the same would be true if the word “situated” were omitted. Barron v. Smith, 63 Vt. 121, 21 A. 269, 1890 Vt. LEXIS 65 (1890).

Return on the copy left with town clerk must contain a specific description of the property attached. Pond v. Baker, 55 Vt. 400 (1883), same case 58 Vt. 293, 2 A. 164, 93 A.L.R. 763.

Officer was not bound to give a description of each cow so particular that a subsequent attaching creditor could not err in determining which he had attached. Brooks v. Farr, 51 Vt. 396, 1878 Vt. LEXIS 170 (1878).

It has been repeatedly held in this State that an attempt to attach personal property by leaving a copy of the writ in the town clerk’s office, with a return thereon describing the property as being all the property of its kind in the town, and nothing more, is wholly inoperative and creates no lien. West River Bank v. Gorham, 38 Vt. 649, 1866 Vt. LEXIS 44 (1866); Rogers v. Fairfield, 36 Vt. 641, 1864 Vt. LEXIS 23 (1864); Paul v. Burton, 32 Vt. 148, 1859 Vt. LEXIS 77 (1859).

All that is necessary to create a valid lien is that return of officer should be sufficiently precise to show identity of property attached. Fullam v. Stearns, 30 Vt. 443, 1857 Vt. LEXIS 90 (1857).

Statement in return that property was attached as belonging to both defendants, when in fact one of them had no interest in it, was no part of its description, and such attachment was valid to hold all interest of either of defendants in property. Fullam v. Stearns, 30 Vt. 443, 1857 Vt. LEXIS 90 (1857).

In order to give an officer the constructive possession of personal property attached by leaving a copy with the town clerk, it was only necessary that property should be described with reasonable certainty; and sufficiency of return in this respect was to be determined by applying it to actual state of debtor’s property at the time. Bucklin v. Crampton, 20 Vt. 261, 1848 Vt. LEXIS 27 (1848).

Cited.

Cited in In re Shuler, 117 B.R. 96, 1990 Bankr. LEXIS 1533 (Bankr. D. Vt. 1990).

§ 3252. Recording by clerk.

When a copy of a writ of attachment upon which personal property is attached is lodged in the office of a town clerk, he or she shall enter in a book to be kept by him or her, in alphabetical order, the names of the parties, the date of the writ, the time when and the court to which the same is returnable, and the amount demanded.

History

Source.

V.S. 1947, § 1576. P.L. § 1537. G.L. § 1753. P.S. § 1456. V.S. § 1107. 1888, No. 59 , § 2.

ANNOTATIONS

Public record.

Record of an attachment required to be made by this section was public in character, and a duly certified copy was admissible in evidence. Humphrey v. Wheeler, 92 Vt. 47, 101 A. 1018, 1918 Vt. LEXIS 148 (1918).

Notes to Opinions

Recording method.

Personal property attachments may be listed alphabetically in the book kept by the clerk, and the writ of attachment filed in a chronological file. 1974 Vt. Op. Att'y Gen. 214.

§§ 3253, 3254. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 3253, 3254. Former §§ 3253, 3254 related to notice to defendant and service of copy of attachment. These sections are now covered by V.R.C.P. 4.1(d).

Former § 3253 was derived from V.S. 1947, § 1572; P.L. § 1533; G.L. § 1750; P.S. § 1453; V.S. § 1104; 1884, No. 99 , § 2; R.L. § 878; 1878, No. 29 ; 1876, No. 70 ; 1872, No. 47 , §§ 2, 3.

Former § 3254 was derived from V.S. 1947, § 1578; P.L. § 1539; G.L. § 1755; P.S. § 1458; V.S. § 1109; R.L. § 881; G.S. 33, § 22; R.S. 28, § 13; R. 1797, p. 84, § 6; R. 1787, pp. 26, 85.

Annotations From Former § 3253

Notice to defendant.

Statement in return regarding notice to defendant.

Annotations From Former § 3254

Known agent.

Leaving copy at place where goods attached.

Service on common agent.

Service on defendant by writ of attachment.

Service on school district.

Successive attachments.

—Effect of service by attachment.

Sufficiency of return.

—Effect of service by attachment.

Annotations From Former § 3253

Notice to defendant.

Notice to defendant was not necessary to perfect lien. Barron v. Smith, 63 Vt. 121, 21 A. 269, 1890 Vt. LEXIS 65 (1890).

It was sufficient if copy of attachment was left with debtor at any time before the legal time of service upon writ expired. Putnam v. Clark, 17 Vt. 82, 1843 Vt. LEXIS 133 (1843).

Statement in return regarding notice to defendant.

Where sheriff attached property and returned that he left a copy of writ at last and usual place of abode of the defendant, without stating in what situation such copy was left, service was defective. Newton v. Adams, 4 Vt. 437, 1832 Vt. LEXIS 55 (1832).

Annotations From Former § 3254

Known agent.

Division superintendent of railroad, although not person upon whom by appointment service of process generally may be made, might well be taken to be the known agent, and leaving a copy of attachment of two locomotives with him would be a leaving with a known agent within the meaning of this section, or at the place where they were attached, within the same meaning. Boston & M. R.R. v. Gokey, 210 U.S. 155, 28 S. Ct. 657, 52 L. Ed. 1002, 1908 U.S. LEXIS 1500 (1908).

Leaving copy at place where goods attached.

Where service was by leaving copy at place where goods were attached, return must show that neither defendant or his known agent or attorney was within the State, since the methods of service are not alternative but successive. James R. Hill & Co. v. Warren, 54 Vt. 73, 1881 Vt. LEXIS 73 (1881); Deal v. Powell, 88 Vt. 404, 92 A. 648, 1914 Vt. LEXIS 235 (1914).

Service on common agent.

Valid service of a writ attaching property of nonresident defendants cannot be made by delivering one copy of writ to their common agent, as statute requires that in such case a copy be left for each. Wade v. Wade's Adm'r, 81 Vt. 275, 69 A. 826, 1908 Vt. LEXIS 142 (1908); James R. Hill & Co. v. Warren, 54 Vt. 73, 1881 Vt. LEXIS 73 (1881).

Service on defendant by writ of attachment.

If a writ of attachment is served by leaving a copy with defendant, the service will operate as a summons, and is sufficient to hold defendant to trial. Brewer v. Story, 2 Vt. 281, 1828 Vt. LEXIS 46 (1828).

Service on school district.

Where writ was served on a school district by attaching certain personal property of district, and leaving true and attested copy of writ, with officer’s return thereon, at house of the then usual abode of the clerk of said district, in the hands of the wife, service was good. Dow v. School Dist. No. 12, 46 Vt. 108, 1873 Vt. LEXIS 78 (1873).

Successive attachments.

Where officer attached property from time to time on a writ and left a single copy, agreeably to law, including a list of all property taken before the time of service expired, service was good. United States Bank v. Taylor, 7 Vt. 116, 1835 Vt. LEXIS 21 (1835).

—Effect of service by attachment.

Where foreign corporation was doing business in this State without having designated a resident agent on whom process against it could be served, service of a writ of attachment on corporation by attaching its property in this State, and service on its agent therein, in the manner provided by this section and § 3291 of this title was sufficient, not only to bring the attached property within the custody of the law, and subject it to the satisfaction of any judgment that plaintiff in the action might obtain, but also to make that judgment a personal one. Somerville Lumber Co. v. Mackres, 86 Vt. 466, 85 A. 977, 1913 Vt. LEXIS 217 (1913).

The statutory provision for service of process against foreign corporation by making service on its designated process agent does not make that mode of service primary but only additional to prescribed mode of service of like process on non-resident defendants, and so where such a corporation was served by attaching its property within this State in the manner required by this section and § 3291 of this title, officer’s return need not negative the appointment of process agent. Somerville Lumber Co. v. Mackres, 86 Vt. 466, 85 A. 977, 1913 Vt. LEXIS 217 (1913).

Sufficiency of return.

Manner in which attachment was served must appear in return, and unless return shows a legal service, it is cause of abatement. Swetland v. Stevens, 6 Vt. 577, 1834 Vt. LEXIS 96 (1834).

When goods or chattels are attached, the return must show a copy was left, according to this section, or it is cause of abatement. Swetland v. Stevens, 6 Vt. 577, 1834 Vt. LEXIS 96 (1834).

—Effect of service by attachment.

Where foreign corporation was doing business in this State without having designated a resident agent on whom process against it could be served, service of a writ of attachment on corporation by attaching its property in this State, and service on its agent therein, in the manner provided by this section and § 3291 of this title was sufficient, not only to bring the attached property within the custody of the law, and subject it to the satisfaction of any judgment that plaintiff in the action might obtain, but also to make that judgment a personal one. Somerville Lumber Co. v. Mackres, 86 Vt. 466, 85 A. 977, 1913 Vt. LEXIS 217 (1913).

The statutory provision for service of process against foreign corporation by making service on its designated process agent does not make that mode of service primary but only additional to prescribed mode of service of like process on non-resident defendants, and so where such a corporation was served by attaching its property within this State in the manner required by this section and § 3291 of this title, officer’s return need not negative the appointment of process agent. Somerville Lumber Co. v. Mackres, 86 Vt. 466, 85 A. 977, 1913 Vt. LEXIS 217 (1913).

§ 3255. Taking possession with or without filing.

  1. An officer, having attached personal property by lodging a copy in the appropriate office as provided in section 3251 of this title shall thereafter remove the property so attached or take it into his or her possession whenever the care, safety, or preservation of the property so requires, or he or she may accept a receipt for the same.  In either case he or she shall withdraw the copy from the office where it was lodged, except that in a mixed attachment of real and personal property he or she shall make and cause to be recorded a certificate stating either that the personal property attached has been taken into his or her possession or receipted.  Where the copy was originally lodged by mail, as provided in section 3251 of this title, such withdrawal or recording may also be accomplished by mail.
  2. The officer taking personal property as provided in this chapter may remove the same and take it into his or her possession, in which case he or she need not leave a copy of the attachment or execution in any office of record.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 90, eff. March 29, 1972.

History

Source.

V.S. 1947, §§ 1573, 1577. P.L. §§ 1534, 1538. G.L. §§ 1751, 1754. P.S. §§ 1454, 1457. V.S. §§ 1105, 1108. 1884, No. 99 , § 3. R.L. § 880. G.S. 33, § 27. R.S. 28, § 16. 1817, p. 102.

Amendments

—1971 (Adj. Sess.). Subsec. (a): Provided for filing in appropriate office under section 3251 and filing by mail.

Subsec. (b): Substituted “any office of record” for “the town or county clerk’s office”.

CROSS REFERENCES

Receivers of attached articles in process of manufacture, see §§ 4481-4485 of this title.

ANNOTATIONS

Action against receiptors.

Signers of receipt taken by constable for realty and personalty attached by lodging required copy in town clerk’s office could not complain when sued for failure to return personalty that officer had not withdrawn copy from town clerk’s office, and caused to be recorded a certificate that the attached personalty had been receipted, since receiptors were not interested in having the records cleared of attachment. Stannard v. Tillotson, 88 Vt. 1, 90 A. 950, 1914 Vt. LEXIS 185 (1914).

Attaching property in building.

Officer who sought admission into a mill for purpose of attaching machinery therein whether as property of owner of mill or another person, could, where admittance was refused after he had requested it, break into building, using so much force as was necessary and no more. Fullam v. Stearns, 30 Vt. 443, 1857 Vt. LEXIS 90 (1857).

Care of attached property.

An attaching officer was bound to exercise reasonable supervision of property attached to preserve it for execution; and must see to it not only that the property was not lost, but that its identity was preserved. Lowell v. Stannard, 90 Vt. 443, 98 A. 925, 1916 Vt. LEXIS 301 (1916).

Lien of officer to receipted property.

Where officer took into his custody personal property by writ of attachment, and third person receipted property, and permitted it to go back into hands of debtor, officer by taking the receipt did not part with his lien upon property. Rood v. Scott, 5 Vt. 263, 1833 Vt. LEXIS 39 (1833).

Removal of property.

Machinery which was personal property subject to attachment and levy of execution, could be removed by attaching officer from building which contained it; and where in so removing it the officer unintentionally did some small injury to building he was not on that account a trespasser ab initio; he must not, however, act willfully, rashly, maliciously or wantonly. Fullam v. Stearns, 30 Vt. 443, 1857 Vt. LEXIS 90 (1857).

§ 3256. Custody of attached property; penalties.

When an officer has attached personal property and taken it into his or her custody and chained, locked, or otherwise secured the same, a person, except another officer duly authorized, shall not interfere with the first named officer’s custody of such property. A person who violates the provisions of this section shall be fined not more than $100.00 or be imprisoned not more than 60 days, or both.

History

Source.

V.S. 1947, § 1574. P.L. § 1535. 1929, No. 42 , § 1.

ANNOTATIONS

Trespass for forcible taking.

Where one of two joint owners of personal property forcibly took it from officer who had taken it on legal process against other joint owner, officer could maintain trespass therefor. Whitney v. Ladd, 10 Vt. 165, 1838 Vt. LEXIS 28 (1838).

§ 3257. Buildings erected by mortgagor or lessee.

An officer levying attachment of buildings or structures erected by a mortgagor or lessee, in addition to the copy lodged in the town clerk’s office, shall serve upon the mortgagee or lessor a like true and attested copy of the process, with a description of the property, and the return of the officer thereon, as is provided for the attachment of personal property held by a person as lessee or bailee. Upon sale on execution, the vendee shall succeed to the rights of the original lessee or mortgagor to the property.

History

Source.

V.S. 1947, § 1575. P.L. § 1536. G.L. § 1752. P.S. § 1455. V.S. § 1106. R.L. § 879. 1878, No. 31 .

Subchapter 3. Attachment of Real Property

ANNOTATIONS

Cited.

Cited in In re APC Constr., Inc., 112 B.R. 89, 1990 Bankr. LEXIS 1587 (Bankr. D. Vt. 1990).

§ 3291. Service of copies of attachment.

When real estate is attached, in addition to serving the party whose estate is attached, the officer shall leave a true and attested copy of the attachment, with a description of the estate so attached, in the office where by law a deed of that estate is required to be recorded.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 91, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1567. P.L. § 1528. G.L. § 1745. P.S. § 1450. V.S. § 1101. R.L. § 874. G.S. 33, § 37. R.S. 28, § 17. R. 1797, p. 84, § 26.

Amendments

—1971 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Attachment, service, see V.R.C.P. 4.1(d).

Estates of homestead exempt from attachment and execution, see 27 V.S.A. chapter 3.

ANNOTATIONS

Constitutionality.

Except in extraordinary situations, the prejudgment attachment of real estate of an in-state resident may be effected only after notice to the owner and a hearing presided over by a judicial officer, at which it must be determined that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance or bond shown by the defendant to be available to satisfy the judgment; and procedures of this section, section 3292 of this title and V.R.C.P. 4.1 whereby, upon commencement of an action, plaintiff may attach defendant’s real estate without notice or a prior hearing and with no participation by a judicial officer are violative of the due process clause of the Fourteenth Amendment and their continued enforcement would be enjoined. Terranova v. AVCO Financial Services of Barre, Inc., 396 F. Supp. 1402, 1975 U.S. Dist. LEXIS 11749 (D. Vt. 1975).

Description of property attached.

Where neither writ of attachment nor officer’s return contained a description of the property purportedly attached, motion for dissolution of the writ should have been granted even though defendants may have had actual notice as to what property plaintiff intended to attach, since such notice could not be held to be effective as to third parties with whom defendants may have had dealings. Spaulding v. Cahill, 147 Vt. 273, 514 A.2d 714, 1986 Vt. LEXIS 391 (1986).

Evidence.

Proper evidence of attachment was officer’s return on original writ, and until that was proved to have been lost, a copy was not admissible. Weeks v. Sowles, 58 Vt. 696, 6 A. 603, 1886 Vt. LEXIS 133 (1886).

Notice to absent defendant.

Where real estate is attached and defendant does not reside in this State, and has no tenant, agent or attorney in this State, act of officer serving writ in leaving a copy in office where by law a deed of such estate is required to be recorded with a description of property attached, for purpose of making attachment and creating a lien thereon, does not constitute notice to defendant, but in such case this section requires another copy, having the officer’s return thereon, to be left with town clerk for defendant, in order to complete the service and constitute notice to defendant. Washburn v. New York & Vt. Mining Co., 41 Vt. 50, 1868 Vt. LEXIS 75 (1868).

Pleading.

Where plaintiff sought to give court jurisdiction of a nonresident defendant by serving his alleged agent, defendant, by appearing specially and pleading in abatement that person served was not his agent when served, submitted to jurisdiction of court so far as to enable it to try any issue joined on that plea. Boright v. Williams, 87 Vt. 245, 88 A. 735, 1913 Vt. LEXIS 195 (1913).

Service by lodging copy in records office.

Prescribed methods of service were not alternative, but successive, and therefore lodging copy in office where deed was required to be recorded did not constitute valid service in absence of statement in return that defendant had no tenant, agent or attorney in the State. Deal v. Powell, 88 Vt. 404, 92 A. 648, 1914 Vt. LEXIS 235 (1914).

Sufficiency of return.

Where a sheriff served a writ of attachment on lands and returned that he had left in hands of defendant a true and attested copy of writ, with his return thereon endorsed, and also that he had left a like copy of the writ in town clerk’s office of town where lands were situate, and had caused material part thereof to be recorded, such attachment created no valid lien on such lands against a subsequent bona fide purchaser. Cox v. Johns, 12 Vt. 65, 1840 Vt. LEXIS 12 (1840).

Variance in copy from original.

A variance in copy left with town clerk from original in a trifling and unimportant particular did not destroy effect of attachment. Huntington v. Cobleigh, 5 Vt. 49, 1833 Vt. LEXIS 7 (1833).

§ 3292. Recording by town or Superior clerk.

When a copy of a writ of attachment, on which real estate is attached, is lodged in the office of a town or Superior clerk, such clerk shall enter in a book to be kept for that purpose the names of the parties, the date of the writ, the time when and the court to which the same is returnable, the nature of the action, the sum demanded, and the officer’s return thereon.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1568. P.L. § 1529. G.L. § 1746. P.S. § 1451. V.S. § 1102. R.L. § 875. G.S. 33, § 38. R.S. 28, § 18. 1823, p. 24.

Revision note

—2017. Substituted “Superior” for “county” in the catchline to conform to section.

—2002. Substituted “the time when and the court to which the same is returnable” for “the time when the court to which the same is returnable” to correct a printing error. See V.S. 1947, § 1568.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “clerk”.

ANNOTATIONS

Constitutionality.

Except in extraordinary situations, the prejudgment attachment of real estate of an in-state resident may be effected only after notice to the owner and a hearing presided over by a judicial officer, at which it must be determined that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance or bond shown by the defendant to be available to satisfy the judgment; and procedures of this section, section 3291 of this title and V.R.C.P. 4.1 whereby, upon commencement of an action, plaintiff may attach defendants’ real estate without notice or a prior hearing and with no participation by a judicial officer are violative of the due process clause of the Fourteenth Amendment, and their continued enforcement would be enjoined. Terranova v. AVCO Financial Services of Barre, Inc., 396 F. Supp. 1402, 1975 U.S. Dist. LEXIS 11749 (D. Vt. 1975).

Failure of clerk to make record.

Where town clerk took no custody of copies of attachments and did not make records of them, attachments were not valid as against bona fide purchasers who relied upon the records. Burchard, Wilson & Co. v. Fair Haven, 48 Vt. 327, 1875 Vt. LEXIS 94 (1875).

An attachment of real estate was effected by officer’s leaving in town clerk’s office a copy of writ, with his return of such an attachment thereon; the making of record or entries respecting it which it was the duty of town clerk to make did not constitute any part of attachment itself. Braley v. French, 28 Vt. 546, 1856 Vt. LEXIS 73 (1856).

Sufficiency of record.

Attachment was good although the clerk did not record the substantial part where officer left a certified copy with clerk and directed him to record such part, and such attachment created a lien against anyone who had notice of attachment from clerk and had seen a copy on file. Huntington v. Cobleigh, 5 Vt. 49, 1833 Vt. LEXIS 7 (1833).

Cited.

Cited in Haner v. Bruce, 146 Vt. 262, 499 A.2d 792, 1985 Vt. LEXIS 352 (1985).

Notes to Opinions

Sufficiency of record.

It would satisfy this section and 24 V.S.A. § 1154 to copy the substance of a writ of attachment or execution in the record book and then file the actual copy of the writ. 1974 Vt. Op. Att'y Gen. 214.

§ 3293. Discharge of attachment lien.

  1. When an attachment or sequestration of real estate is made in an action at law, such real estate shall be discharged from such attachment lien and the party in whose favor the attachment or sequestration is made, his or her legal representative or attorney of record in the action shall discharge such attachment upon the record of attachment in the town clerk’s office, under any one of the following conditions:
    1. when the action is discontinued or the demand on which it is founded is satisfied;
    2. when the original writ or process is not returned to the court issuing the same within the time designated by such writ or process;
    3. when final judgment is entered in such cause and the docket entries or court records of proceedings in such cause do not show that execution was issued therein within the time the attached property is held to respond to the judgment rendered thereon;
    4. when execution has issued in such cause and returned with officer’s return thereon that the execution is satisfied; or
    5. if such execution is not returned to the court issuing the same within two years from the date of issue as determined by the docket entries or court records, provided that service is not stayed by order or decree of any court or by operation of law.
  2. If such attachment or sequestration is not discharged of record as above provided, any person having any title in or lien on such property may obtain from the court to which the original writ or process was made returnable, a certificate stating therein the fulfillment of any one of the conditions set forth above, and may file such certificate in the town or city clerk’s office in the town or city where such attachment was made.  Such clerk shall thereupon discharge such attachment as follows:

    “Discharged by the town (city) clerk per court’s certificate on file.”

  3. [Repealed.]
  4. A clerk discharging an attachment as herein authorized shall receive a fee of $4.00.

HISTORY: Amended 1971, No. 84 , § 7, eff. July 1, 1971; 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974; 1979, No. 161 (Adj. Sess.), § 12; 1993, No. 170 (Adj. Sess.), § 10.

History

Source.

V.S. 1947, § 1569. 1939, No. 46 . P.L. § 1530. 1931, No. 36 , § 1. G.L. § 1747. 1917, No. 254 , § 1708. 1908, No. 63 , § 1.

Revision note—

Reference to “or in equity” was omitted in view of merger of law and equity pursuant to 1971, No. 185 (Adj. Sess.), § 236. See note set out under 4 V.S.A. § 219 .

Amendments

—1993 (Adj. Sess.). Subsec. (d): Substituted “$4.00” for “$2.00”.

—1979 (Adj. Sess.). Subsec. (d): Discharge attachment fee increased from “$1.00” to “$2.00”.

—1973 (Adj. Sess.). Subsec. (c): Repealed.

—1971. Subsec. (d): Increased fee.

CROSS REFERENCES

Discharge of attachment when property is not taken in execution within certain period after judgment, see §§ 2685, 2686 of this title.

ANNOTATIONS

Cited.

Cited in In re Shuler, 117 B.R. 96, 1990 Bankr. LEXIS 1533 (Bankr. D. Vt. 1990).

§ 3294. Liability for refusal to discharge attachment lien.

When such party or his or her representative refuses for 10 days after being thereto requested to discharge the lien so created, he or she shall be liable to the party injured for the damages occasioned thereby, to be recovered in an action of tort.

History

Source.

V.S. 1947, § 1570. P.L. § 1531. G.L. § 1748. 1908, No. 63 , § 2.

References in text.

The reference to “an action of tort” is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

§ 3295. Attachment of real estate and personal property.

A writ of attachment of real estate or personal property shall be filled out as provided by rule adopted by the Supreme Court and issued to the plaintiff’s attorney by the clerk of the court in the county where the action is pending or the property is located. Such writ shall issue only upon the order of a Superior judge approving attachment in the same manner as is provided by the Vermont Rules of Civil Procedure for attachment of personal property that is to be removed or taken into possession.

HISTORY: Added 1977, No. 254 (Adj. Sess.), § 1, eff. April 19, 1978.

History

Revision note

—2017. Deleted “or District” pursuant to 2009, No. 154 (Adj. Sess.), § 236.

Attachment. 1977, No. 254 (Adj. Sess.), § 3, eff. April 19, 1978, provided: “Rule 4.1 of the Vermont Rules of Civil Procedure, to the extent it is inconsistent with this act [which added this section and amended section 1 of this title], shall be null and void.”

ANNOTATIONS

Due process.

Except in extraordinary circumstances, the due process clause of the Fourteenth Amendment requires a hearing before issuance of a writ of attachment, possessory or nonpossessory, of either real or personal property. Filter Equipment Co. v. International Business Machines Corp., 142 Vt. 499, 458 A.2d 1091, 1983 Vt. LEXIS 434 (1983).

Subchapter 4. Subsequent Attaching Creditors

§ 3331. Subsequent attaching creditors of real or personal property permitted to defend.

When a subsequent attaching creditor of real or personal property wishes to contest the validity of the debt or claim on which a previous attachment is founded, the court before whom the process is returnable, on which the previous attachment was made, in its discretion, may permit such subsequent attaching creditor to appear by himself or herself or counsel and defend such action. The words “attaching creditor” shall include creditors claiming to hold by trustee process personal property or funds in the hands of any person against such previous attachments.

History

Source.

V.S. 1947, § 1896. P.L. § 1843. G.L. § 2033. P.S. § 1754. V.S. § 1399. R.L. § 1166. G.S. 30, § 44. 1852, No. 6 , § 1. 1845, No. 27 .

CROSS REFERENCES

Execution for subsequent attaching creditor, see § 2686 of this title.

Notice to subsequent attaching creditor of sale of real estate on execution, see § 2788 of this title.

ANNOTATIONS

Effect of confession of judgment.

Where record of justice showed judgment by confession, parol evidence offered by a subsequent attaching creditor to show that defendant never appeared personally before justice was inadmissible, record of judgment being conclusive. Farr v. Ladd, 37 Vt. 156, 1864 Vt. LEXIS 74 (1864).

When a suit was commenced by attachment, confession of judgment did not by mere force of confession dissolve attachment, and where before any steps were taken or any prejudice suffered by other creditors, parties entered into a binding agreement to waive confession and proceed with original suit, it equally concluded the use of such technical defense to subsequent attaching creditors, whose attachments were pending when confession of judgment was made. Fletcher v. Bennett, 36 Vt. 659, 1864 Vt. LEXIS 26 (1864).

Evidence introduced by subsequent creditor.

It was competent for a subsequent attaching creditor to introduce any evidence contesting validity of claim, and showing that it was illegal and void as against subsequent attaching creditors, even if the testimony would be incompetent if offered by debtor himself. Harding v. Harding, 25 Vt. 487, 1853 Vt. LEXIS 70 (1853).

Property attached under trustee process.

Subsequent attaching creditor was authorized to appear and defend against prior attaching creditors where property was attached under a trustee process. Harding v. Harding, 25 Vt. 487, 1853 Vt. LEXIS 70 (1853).

Subsequent attaching creditor as party.

When subsequent attaching creditors enter and defend, they so far become parties to the suit that they have right of appeal, and can prosecute same in appellate court. Chaffee v. Malarkee & Hodges & 0wen, 26 Vt. 242 (1854).

§ 3332. Admissions of defendant.

When a creditor has so appeared, an admission or declaration in writing or otherwise, afterwards made by the debtor in the cause, of the validity of the claim on which such previous attachment is founded, shall not be given in evidence against such creditor nor shall he or she be affected thereby.

History

Source.

V.S. 1947, § 1897. P.L. § 1844. G.L. § 2034. P.S. § 1755. V.S. § 1400. R.L. § 1167. G.S. 30, § 45. 1852, No. 6 , § 2.

§ 3333. Costs when plaintiff recovers in full.

When the plaintiff recovers final judgment for his or her whole debt or claim, he or she may have execution against such creditor for nominal damages and the costs that accrue in the cause after he or she so enters.

History

Source.

V.S. 1947, § 1898. P.L. § 1845. G.L. § 2035. P.S. § 1756. V.S. § 1401. R.L. § 1168. G.S. 30, § 46. 1853, No. 16 , § 1.

§ 3334. Costs when plaintiff recovers in part.

When such creditor defeats on trial a part of the plaintiff’s claim on the ground that it is fraudulent as against creditors, he or she shall have judgment and execution against the plaintiff for such costs accrued after entry by such creditor as the court may tax in its discretion.

History

Source.

V.S. 1947, § 1899. P.L. § 1846. G.L. § 2036. P.S. § 1757. V.S. § 1402. R.L. § 1169. G.S. 30, § 47. 1853, No. 16 , § 2.

Subchapter 5. Personal Property Subject to Mortgage, Pledge, or Lien; Attachment, Levy of Execution, and Sale

§ 3351. Attachment, taking in execution, and sale.

Personal property not exempt from attachment, subject to a mortgage, pledge, or lien, may be attached, taken in execution, and sold as the property of the mortgagor, pledgor, or general owner, in the same manner as other personal property, except as otherwise provided in this subchapter.

HISTORY: Amended 2018, No. 8 (Sp. Sess.), § 6, eff. June 28, 2018.

History

Source.

V.S. 1947, § 1910. P.L. § 1857. G.L. § 2047. P.S. § 1768. V.S. § 1413. R.L. § 1180. 1880, No. 33 , § 1.

Amendments

—2018 (Sp. Sess.) Deleted “hereinafter” following “except as” and added “in this subchapter” following “otherwise provided”.

CROSS REFERENCES

Attachment of buildings erected by mortgagee or lessee, see § 3257 of this title.

Attachment of mortgagee’s interest in personal property when mortgagor is summoned as trustee, see §§ 3146-3152 of this title.

ANNOTATIONS

Mortgaged property.

After breach of condition, chattel mortgagor had no attachable interest in property. Norris v. Sowles, 57 Vt. 360, 1885 Vt. LEXIS 57 (1885).

Pledged bank bills.

Bank bills deposited by defendants in the hands of a third person as security for any judgment which the plaintiff might obtain against them, were rightfully attached in an action of tort brought by plaintiff against the defendants. State v. Lopez, 184 A.3d 880, 2018 Me. LEXIS 58 (Me. 2018).

Property subject to bill of lading.

Where purchaser had property delivered to railroad company, took bill of lading and transferred it to a bank as collateral for his draft, purchaser had no attachable interest in the property and could have re-acquired an interest only by paying the draft. Crampton v. McBain, 71 Vt. 242, 42 A. 611, 1899 Vt. LEXIS 164 (1899).

§ 3352. Statement of secured debt.

The officer making such attachment or taking such property on execution may make a written demand of the mortgagee, pledgee, or the holder of such lien, for an account in writing, under oath, of the amount due upon the debt secured by such mortgage, pledge, or lien, and may retain such property in his or her custody until the same is given without tender or payment. Upon receiving such demand, the account shall be rendered within 15 days by a resident of the State and within 30 days by a nonresident. If the account is not rendered within the time aforesaid or if a false account is rendered, such property may be holden and sold, discharged from such mortgage, pledge, or lien.

History

Source.

V.S. 1947, § 1911. P.L. § 1858. G.L. § 2048. P.S. § 1769. V.S. § 1414. R.L. § 1181. 1880, No. 33 , § 2.

ANNOTATIONS

Demand for account.

Demand for a statement of amount due forthwith was not within the statute, and mortgage lien was not discharged by failure to render statement within fifteen days from such demand. Green v. Kelley, 64 Vt. 309, 24 A. 133, 1892 Vt. LEXIS 41 (1892).

False account.

Statement was not false where plaintiff’s bill, seeking to avoid mortgage as attaching creditor and as purchaser at execution sale of property sold subject to chattel mortgage, admitted that mortgagor owed mortgagee amount therein stated, which as between parties was covered by mortgage. People’s Trust Co. of St. Albans v. Finn, 107 Vt. 433, 181 A. 102 (1935), same case 106 Vt. 345, 175 A. 4.

Replevin by mortgagee of property taken by officer.

A mortgagee to maintain replevin for property to which he holds title by chattel mortgage against an officer who had taken same in execution against mortgagor must show that such officer had unlawfully taken or detained property; that is, that he held it in a way inconsistent with the statutes permitting attachment and sale of mortgagor’s interest; it was not enough that he had levied upon and advertised it for sale. National Bank v. Miller, 67 Vt. 66, 30 A. 700, 1894 Vt. LEXIS 12 (1894).

§ 3353. Payment of debt if due.

When such debt is due at the time of rendering the account, the creditor so attaching or causing such property to be taken on execution may pay or tender, within 10 days after such account is rendered, the amount so rendered to the mortgagee, pledgee, or holder of such lien, and retain and sell such property free and clear of such mortgage, pledge, or lien.

History

Source.

V.S. 1947, § 1912. P.L. § 1859. G.L. § 2049. P.S. § 1770. V.S. § 1415. R.L. § 1182. 1880, No. 33 , § 3.

§ 3354. Payment of debt becoming due before sale.

When such debt is not due at the time of rendering the account, but becomes due before the time fixed by the officer making such attachment or levy of execution for the sale of the property, within 10 days after the debt becomes due and before the sale, such creditor may pay or tender the amount thereof to such mortgagee, pledgee, or holder of such lien, and retain and sell such property as is provided in section 3353 of this title.

History

Source.

V.S. 1947, § 1913. P.L. § 1860. G.L. § 2050. P.S. § 1771. V.S. § 1416. R.L. § 1183. 1880, No. 33 , § 4.

§ 3355. Payment of debt not due.

When such debt is not due at the time fixed by the officer for sale of the property, the creditor may offer to pay the debt to the mortgagee, pledgee, or holder of the lien. If such payment is accepted, the same proceedings may be had as provided in section 3353 of this title.

History

Source.

V.S. 1947, § 1914. P.L. § 1861. G.L. § 2051. P.S. § 1772. R. 1906, § 1668. V.S. § 1417. R.L. § 1185. 1880, No. 33 , § 6.

§ 3356. Subrogation of creditor by payment.

When such creditor pays or tenders such debt to the mortgagee, pledgee, or holder of such lien, as provided in sections 3353-3355 of this title, he or she shall be subrogated to all the rights of such mortgagee, pledgee, or holder, and may cause the same to be sold in the same manner that unencumbered personal property may be sold on mesne or final process; and the proceeds of such sale shall be applied first, in payment of the sum paid by such creditor to such mortgagee, pledgee, or holder and second, to satisfy the execution.

History

Source.

V.S. 1947, § 1915. P.L. § 1862. G.L. § 2052. P.S. § 1773. V.S. § 1418. R.L. § 1184. 1880, No. 33 , § 5.

§ 3357. Sale of property subject to mortgage, pledge, or lien.

When the mortgagee, pledgee, or holder of a lien duly renders such account, whether or not the debt is due, the attaching creditor may cause the property to be sold subject to the mortgage, pledge, or lien, without first paying or tendering the amount due on the debt secured thereby.

History

Source.

V.S. 1947, § 1916. P.L. § 1863. G.L. § 2053. P.S. § 1174. V.S. § 1419. 1888, No. 69 , § 1.

ANNOTATIONS

Sale in conformity with law.

Resort to sale on execution subject to a conditional sale lien was warranted only by specific statutory law, and in order to be justified, must have been shown to have been in conformity with the provisions of such law. Reed v. Witham, 107 Vt. 482, 181 A. 129, 1935 Vt. LEXIS 202 (1935).

§ 3358. Subrogation of purchaser.

When a mortgagor, pledgor, or conditional vendee of property sold on execution under the provisions of this subchapter fails or refuses to discharge such lien after it becomes due and payable, and within 10 days after written notice so to do is served upon him or her by the purchaser of the whole or part thereof, the person so purchasing may tender and pay to the holder of such mortgage, pledge, or lien, or the conditional vendor, the amount due such creditor upon the whole of such property. Upon such tender or payment, such purchaser shall be subrogated to all the rights of such original mortgagee, pledgee, or conditional vendor, and may hold the same as security for the amount so paid in discharge of such original claim, together with the sum paid by him or her on the execution sale, with interest upon such sums. He or she shall have the same benefit of foreclosure, sale, and disposition of such property that the original mortgagee, pledgee, or conditional vendor would have had under his or her claim.

History

Source.

V.S. 1947, § 1917. P.L. § 1864. G.L. § 2054. P.S. § 1775. V.S. § 1420. 1888, No. 69 , § 2. R.L. § 1185. 1880, No. 33 , § 6.

ANNOTATIONS

Purchase of property subject to two mortgages.

Purchaser of personal property at execution sale subject to two mortgages could not repudiate either, since terms of sale, although not creating direct liability on purchaser to pay debt of either mortgage, created condition which purchaser must perform to perfect its title to property. People’s Trust Co. of St. Albans v. Finn, 106 Vt. 345, 175 A. 4 (1934), same case 107 Vt. 433, 181 A. 102.

Purchaser of personal property at execution sale subject to two mortgages and paying one of said mortgages and taking assignment thereof, was estopped to deny validity of other mortgage, since it would be inequitable to permit purchaser to secure property at lower figure than any other interested party believed or intended at time of such sale. People’s Trust Co. of St. Albans v. Finn, 106 Vt. 345, 175 A. 4 (1934), same case 107 Vt. 433, 181 A. 102.

§ 3359. Property subject to conditional sales contract—Attachment and execution.

If property, in pursuance of the terms of a conditional sales contract, has passed into the possession of the vendee and the purchase money or part thereof remains unpaid, a creditor of the vendee may attach or levy his or her execution upon the property, and, upon payment or tender of such unpaid purchase money to the vendor, his or her agent or attorney, within 10 days after notice of the amount thereof remaining unpaid, may hold the property discharged from the claim of such vendor.

History

Source.

V.S. 1947, § 1918. P.L. § 1865. G.L. § 2055. P.S. § 1776. V.S § 1421. R.L. § 1186. G.S. 23, § 28. 1854, No. 12 , § 1.

ANNOTATIONS

Attachable interest of vendee.

Conditional vendee of personal property had no attachable interest therein under this section when none of the purchase money thereof had been paid by him. Rowan v. State Bank, 45 Vt. 160, 1872 Vt. LEXIS 116 (1872).

Default of payment or tender.

After default of payment or tender, an officer who held property taken by him on attachment or who sold it at execution sale was a trespasser and was liable for his unlawful taking. Commercial Credit Corp. v. Dusckett, 114 Vt. 450, 49 A.2d 106, 1946 Vt. LEXIS 94 (1946).

Under this section where a conditional sales agreement was seasonably recorded, an attaching creditor had no right to hold property as against vendor otherwise than by payment or tender of amount due; he must have complied with provisions of statute if he was to benefit from his attachment. Commercial Credit Corp. v. Dusckett, 114 Vt. 450, 49 A.2d 106, 1946 Vt. LEXIS 94 (1946).

Where conditionally sold property was attached by officer and later stolen from him, officer was liable to vendor for full value of the property, not merely amount due, where no tender was made to vendor. Duncans v. Stone, 45 Vt. 118, 1872 Vt. LEXIS 110 (1872).

Pleading.

In trover by conditional vendor of goods, against an officer who had attached them on a writ against vendee where plea was that vendor gave no notice of amount of his lien, and did not allow ten days in which to pay it and replication was of actual notice of the recorded lien to defendant and creditor, with demurrer thereto, demurrer admitted knowledge of all facts necessary to enable defendant and creditor to pay or tender the sum due; and, as the vendor might bring suit within the ten days, plea, alleging neither tender nor payment within that time, was bad. Towner v. Bliss, 51 Vt. 59, 1878 Vt. LEXIS 121 (1878).

Tender.

Attaching creditor must pay or tender to the vendor, his agent or attorney, amount unpaid within ten days from time he has notice thereof, though the ten days expires before unpaid purchase money becomes due by contract of sale. Fales v. Roberts, 38 Vt. 503, 1866 Vt. LEXIS 21 (1866).

Fact that there was a dispute as to amount due did not interfere with right of attaching creditor to make tender. Fales v. Roberts, 38 Vt. 503, 1866 Vt. LEXIS 21 (1866).

Where there was a dispute as to how much of purchase money, if any, was unpaid, so that it was necessary for an accounting to be made to determine what was due, it could not be urged as a bar to accounting that attaching creditor did not pay or tender to vendors residue of purchase money remaining unpaid within ten days after attachment. Rowan v. Union Arms Co., 36 Vt. 124, 1863 Vt. LEXIS 50 (1863).

Where one has purchased personal property with an agreement that it shall belong to vendor until price is paid, in order to enable a creditor of vendee to attach and hold property discharged from claim of vendor, he must pay or tender to vendor amount of his claim to property within ten days after the attachment, and this tender must be of a definite sum and money must be brought into court; tender must be so made that vendor may accept sum offered at any point in proceeding, and that he may also have it secured to him in the event of litigation being determined against him. Hefflin v. Bell, 30 Vt. 134, 1858 Vt. LEXIS 10 (1858).

§ 3360. Proceeds of sale.

The officer making such attachment or levy shall hold and dispose of such property like other personal property attached or levied upon, and from the proceeds of the sale thereof pay to the creditor the amount by him or her paid or tendered to the vendor and apply the residue upon the execution.

History

Source.

V.S. 1947, § 1919. P.L. § 1866. G.L. § 2056. P.S. § 1777. V.S. § 1422. R.L. § 1187. G.S. 33, § 29. 1854, No. 12 , § 2.

§ 3361. Defense in action by vendor.

If the vendor refuses to receive the amounts so tendered him or her and brings an action on account of the attachment or levy, the tender shall constitute a defense. On proof thereof and payment of the money tendered into court, the defendant may recover his or her costs, unless it appears that the amount so tendered, as the residue of the purchase money, was less than the sum due the vendor.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 92, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1920. P.L. § 1867. G.L. § 2057. P.S. § 1778. V.S. § 1423. R.L. § 1188. G.S. 33, § 30. 1854, No. 12 , § 3.

Amendments

—1971 (Adj. Sess.). Rephrased, omitted reference to general denial, and provided for tender as defense.

§ 3362. Mortgagee taking possession; foreclosure of mortgage, pledge, or lien.

Sections 3351-3361 of this title shall not be construed so as to prevent or delay a mortgagee or a conditional vendor from taking possession of the secured property at any time for its necessary care and preservation, nor to prevent or delay the due foreclosure of a mortgage, pledge, or lien under the provisions of 9A V.S.A. Article 9.

HISTORY: Amended 1959, No. 262 , § 27, eff. June 11, 1959; 1971, No. 185 (Adj. Sess.), § 93, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1921. P.L. § 1868. 1919, No. 81 , § 4.

Amendments

—1971 (Adj. Sess.). Rephrased, substituted “secured” for “mortgaged” property and changed references to Title 9A.

—1959. Inserted “or a conditional vendor” and added reference to 9 V.S.A. chapter 45.

§ 3363. Property in hands of bailee—Taking of reversionary interest of lessor, bailor, pledgor, or other owner.

The reversionary title in personal property may be attached or levied upon as the property of the lessor, bailor, pledgor, or other person owning the same, subject to the contract rights of the party holding possession thereof.

History

Source.

V.S. 1947, § 1922. P.L. § 1869. G.L. § 2058. P.S. § 1779. V.S. § 1424. R.L. § 1189. G.S. 33, § 31. 1858, No. 8 , § 1.

ANNOTATIONS

Gratuitous bailee.

A gratuitous bailee is answerable only for fraud or gross neglect. Jobidon v. Lussier, 124 Vt. 242, 204 A.2d 88, 1964 Vt. LEXIS 95 (1964).

Lease discharged before sale.

While under this section only the reversionary interest of the lessor can be attached and sold, when, before sale, property was discharged from the lease, interest of lessor became the entire value of the property; it was interest at time of sale, not at time of attachment, that creditor was entitled to take. Pond v. Baker, 58 Vt. 293, 2 A. 164 (1885), same case 55 Vt. 500.

Property in possession of lessee.

Personal property in possession of the lessee cannot be attached as the property of the lessor, except in the manner provided by statute; it cannot be taken from lessee’s possession. Brigham v. Avery, 48 Vt. 602, 1876 Vt. LEXIS 55 (1876).

§ 3364. Service of process on person holding property.

A valid lien on such property shall be created by delivering to the person so holding it a true and attested copy of the process upon which it is attached or levied, with the return of the officer thereon describing it, which shall have the same effect as though the property were taken into the possession of such officer.

History

Source.

V.S. 1947, § 1923. P.L. § 1870. G.L. § 2059. P.S. § 1780. V.S. § 1425. R.L. § 1190. G.S. 33, § 32. 1858, No. 8 , § 2.

ANNOTATIONS

Sufficiency of return.

Where return was, in part, “I served this writ by attaching as the property of the within named defendant all the real estate in said town of M - - -, etc., all the neat cattle, horses, hogs and sheep, cows, oxen, etc., now on or kept on said farms, lands, and premises, or any part thereof, . . .”, in view of actual condition of property, the livestock on the farm was legally attached; and return was sufficient to inform defendant and any reasonable, prudent person dealing with him, that the property was under attachment. Pond v. Baker, 58 Vt. 293, 2 A. 164 (1885), same case 55 Vt. 400.

Return on copy left with a lessee, or town clerk, must contain a specific description of property attached. Pond v. Baker, 55 Vt. 400 (1883), same case 58 Vt. 293, 2 A. 164, 93 A.L.R. 763.

§ 3365. Sale of reversionary interest.

The reversionary interest in the property may be sold at public sale, as personal property is required to be sold upon legal process, subject to the contract rights under which it is held.

History

Source.

V.S. 1947, § 1924. P.L. § 1871. G.L. § 2060. P.S. § 1781. V.S. § 1426. R.L. § 1191. G.S. 33, § 33. 1858, No. 8 , § 3.

Subchapter 6. Sale of Personal Property on Attachment

§ 3401. Sale by consent of parties.

When goods or chattels are attached on mesne process in one or more actions and the debtor and attaching creditors consent in writing to a sale thereof, the attaching officer shall sell the same in the manner prescribed by law for selling like property on execution. The proceeds of the sale, after deducting the necessary charges thereof, shall be paid into court and held to respond to judgments in such actions.

History

Source.

V.S. 1947, § 1925. P.L. § 1872. G.L. § 2061. P.S. § 1782. V.S. § 1427. R.L. § 1192. 1867, No. 4 . G.S. 33, § 39. R.S. 28, § 46.

ANNOTATIONS

Sale for amount exceeding claim.

Sale upon mesne process of a part only of property attached, but for amount exceeding plaintiff’s claim, and exceeding amount to which officer was commanded to attach, did not dissolve attachment as to remainder or impair creditor’s lien upon it. Marshall v. Town, 28 Vt. 14, 1855 Vt. LEXIS 125 (1855).

§ 3402. Attachment after advertisement.

After the property is advertised for sale, a creditor shall not have a right to prevent such sale by attachment of the same. The property may be charged by attachment or execution put into the hands of the officer holding it, as if the same were not advertised for sale, and the proceeds thereof shall be held subject to the attachments and executions in the officer’s hands, at the time of the sale, against the owner of the property.

History

Source.

V.S. 1947, § 1926. P.L. § 1873. G.L. § 2062. P.S. § 1783. V.S. § 1428. R.L. § 1193. G.S. 33, § 40. R.S. 28, § 47.

§ 3403. Perishable property—Notice of sale; appraisers.

  1. When an attachment is made of living animals or of perishable goods or chattels which are liable to waste or liable to deteriorate appreciably in value by keeping or which cannot be kept without great or disproportionate expense, and the parties do not consent to the sale thereof, upon written application of either of the parties interested therein, made to the attaching officer, the property so attached shall be examined, appraised and sold, or otherwise disposed of and notice thereof given by the officer to the other parties in such manner as the Supreme Court shall by rule provide for service of summons.
  2. Such officer shall prepare a schedule of the property and appoint three disinterested persons acquainted with its value as appraisers to be sworn by him or her.  If such appraisers are satisfied that the defendant in the action has been informed of the attachment of the property, they shall appraise the same as provided by law.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 94, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1927. 1947, No. 202 , § 1961. P.L. § 1874. G.L. § 2063. P.S. § 1784. V.S. § 1429. R.L. § 1194. G.S. 33, § 41. 1860, No. 11 . R.S. 28, § 48.

Amendments

—1971 (Adj. Sess.). Subsec. (a): Amended generally to provide for service by rule.

CROSS REFERENCES

Attachment, see V.R.C.P. 4.1.

ANNOTATIONS

Deterioration of property in hands of officer.

Where an officer attached and held property lawfully, but sold it illegally, it having deteriorated without his fault, in an action on the case he was liable only for its value at the time of sale. Walker v. Wilmarth, 37 Vt. 289, 1864 Vt. LEXIS 98 (1864).

Hearing of appraisers.

Although this section is silent as to any hearing by appraisers provided for therein, scope of their inquiry is such that in some, if not most, instances hearing is necessary to intelligent action. Arthur A. Bishop & Co. v. Thompson, 99 Vt. 17, 130 A. 701, 1925 Vt. LEXIS 164 (1925).

Notice.

Although this section does not provide when notice shall be given of application to have attached property examined, appraised and sold, except that it shall be at least 20 days prior to sale of property, it must be given a reasonable length of time before appraisers act, so that parties may have an opportunity to be present if they so desire. Arthur A. Bishop & Co. v. Thompson, 99 Vt. 17, 130 A. 701, 1925 Vt. LEXIS 164 (1925).

Where notice of examination, appraisal, and sale of attached property was not given debtor until after appraisers had been appointed and appraised property, there was an unqualified noncompliance with statute in a respect essential to authority of officer to sell attached property, in absence of consent of parties, and by reason thereof sale by officer constituted conversion of such property. Arthur A. Bishop & Co. v. Thompson, 99 Vt. 17, 130 A. 701, 1925 Vt. LEXIS 164 (1925).

Where plaintiff’s property was attached and, at the request of the attaching creditor, sold under the provisions of this section, but officer did not give plaintiff written notice of the application, sale was illegal although the plaintiff had verbal notice and was present at the appraisal and sale, and did not object. Walker v. Wilmarth, 37 Vt. 289, 1864 Vt. LEXIS 98 (1864).

It was not necessary in order to authorize officer to proceed to sell property that he should also notify owner of property that property had been appraised and at what amount. Abbott v. Kimball, 23 Vt. 542 (1851), same case 19 Vt. 551.

Proceedings in conformity with law.

Resort to proceedings for examination, appraisal, and sale of attached property was warranted only by specific statutory law, and to be justified proceedings must be shown to have been in conformity with provisions of such law. Arthur A. Bishop & Co. v. Thompson, 99 Vt. 17, 130 A. 701, 1925 Vt. LEXIS 164 (1925).

§ 3404. Duties of appraisers; sale.

The appraisers shall examine the attached property and, if the same or part thereof is liable to perish or waste or to be greatly reduced in value by keeping or cannot be kept without great and disproportionate expense, they shall appraise the same at its value in money. Such property shall thereupon be sold by the officer and the proceeds held and disposed of as hereinbefore provided in case of a sale by consent of parties, unless the property is taken by the defendant as hereinafter provided.

History

Source.

V.S. 1947, § 1928. P.L. § 1875. G.L. § 2064. P.S. § 1785. V.S. § 1430. R.L. § 1195. G.S. 33, § 42. R.S. 28, § 50.

§ 3405. Return of sale.

When an attaching officer sells property pursuant to any of the preceding sections, within 30 days, he or she shall make a return of his or her sale and any action taken on the writ upon which the attachment was made and return the writ with his or her proceedings to the clerk who signed it or to the clerk of the court in which the action is pending. When the defendant confesses judgment to the plaintiff before he or she makes the return, the officer shall make return to the magistrate before whom the judgment is confessed.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 95, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1929. P.L. § 1876. G.L. § 2065. P.S. § 1786. V.S. § 1431. R.L. § 1196. G.S. 33, § 43. 1843, No. 7 .

Amendments

—1971 (Adj. Sess.). Rephrased and substituted clerk of the court “in which the action is pending” for clerk “to which it is returnable”.

ANNOTATIONS

Officer’s return.

When an officer’s return of sale of property sold on the writ by request of creditor did not state specifically that notice was given to debtor as required by this section, parol evidence was admissible to prove that such notice was given. Bentley v. White, 54 Vt. 564 (1882).

§ 3406. Delivery of property to defendant on giving security.

The property appraised and ordered sold under the provisions of this subchapter shall be delivered to the defendant, if he or she requires it, upon his or her depositing with the attaching officer the appraised value thereof in money, or giving to him or her satisfactory security for payment of such value, or to satisfy such judgments as are recovered in the actions in which the property is attached, if demanded within the time during which it would have been held by the respective attachments, and to indemnify the officer for such costs and damages as he or she may sustain if such payment is not made within the time aforesaid.

History

Source.

V.S. 1947, § 1930. P.L. § 1877. G.L. § 2066. P.S. § 1787. V.S. § 1432. R.L. § 1197. G.S. 33, § 44. R.S. 28, § 51.

§ 3407. Officer to account for appraised value.

Such officer shall be accountable to the attaching creditor for the appraised value only of the property so delivered to the debtor.

History

Source.

V.S. 1947, § 1931. P.L. § 1878. G.L. § 2067. P.S. § 1788. V.S. § 1433. R.L. § 1198. G.S. 33, § 45. R.S. 28, § 52.

§ 3408. Sale after return of process.

After the process has been entered in court and before final judgment, personal property attached on mesne process may be sold or disposed of upon the same requests and in the same manner as provided for the sale or disposal of property so attached, before the process has been entered in court.

History

Source.

V.S. 1947, § 1932. P.L. § 1879. G.L. § 2068. P.S. § 1789. V.S. § 1434. R.L. § 1199. G.S. 33, § 46. 1861, No. 16 , § 1.

ANNOTATIONS

Construction with other laws.

By specific provision of this section sale of attached personal property after return of process was governed by §§ 3403, 3404 of this title providing for sale of attached perishable property. Goodrich v. Chappell, 90 Vt. 263, 98 A. 46, 1916 Vt. LEXIS 271 (1916).

Determination whether property subject to sale.

Appraisers were required to determine whether property was such or so conditioned as to be subject to sale and officer could not legally sell property until such determination and subsequent appraisal. Goodrich v. Chappell, 90 Vt. 263, 98 A. 46, 1916 Vt. LEXIS 271 (1916).

§ 3409. Officer’s return.

When an officer sells property as provided in section 3408 of this title, he or she shall forthwith make return of his or her doings and sale to the clerk of the court or to the magistrate before whom the cause is pending. Such return shall be appended to and made part of the officer’s return on the original process.

History

Source.

V.S. 1947, § 1933. P.L. § 1880. G.L. § 2069. P.S. § 1790. V.S. § 1435. R.L. § 1200. G.S. 33, § 47. 1861, No. 16 , § 2.

ANNOTATIONS

Court to which return made.

Where officer attached property on a justice writ, and while case was pending on appeal in county court, by request of creditor he sold it, but made his return to the magistrate instead of the county clerk, attachment, sale and application of funds being legal, such officer was not a trespasser ab initio. Bentley v. White, 54 Vt. 564 (1882).

§ 3410. Deposit or investment of proceeds.

When property is sold on mesne process returnable to the Superior Court under this subchapter, upon application of either party, the money realized from the sales shall be paid into court, and the clerk thereof shall invest or deposit such money during the pendency of the cause, as the court directs. When the officer has paid the money into court, he or she shall not be responsible to either party therefor.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1934. P.L. § 1881. G.L. § 2070. P.S. § 1791. V.S. § 1436. R.L. § 1201. 1867, No. 4 .

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

Chapter 125. Arrest, Bail, and Recognizances

Subchapter 1. Bail and Recognizances

§ 3471. Bail or recognizance as including surety bond.

The word “bail” or the word “recognizance” wherever used in connection with civil proceedings shall mean a good and sufficient surety bond, if one is furnished.

HISTORY: Amended 1967, No. 337 (Adj. Sess.), § 1, eff. July 1, 1968.

History

Source.

V.S. 1947, § 3. P.L. § 3. 1933, No. 157 , § 8751. 1927, No. 40 .

Amendments

—1967 (Adj. Sess.). Omitted “or criminal proceedings”.

CROSS REFERENCES

Bail and recognizances in criminal cases, see 13 V.S.A. chapter 229.

Forms for arrest, bail, bonds, and recognizances, see ch. 213 of this title.

ANNOTATIONS

Factors considered.

Among the factors to be taken into account by a court in determining the amount of bail are ability of the accused to furnish bail, nature of the offense, penalty for the offense charged, character and reputation of the accused, health of the accused, character and strength of the evidence, probability of the accused appearing at trial, and whether the accused was a fugitive from justice when arrested. State v. Toomey, 126 Vt. 123, 223 A.2d 473, 1966 Vt. LEXIS 175 (1966).

Fact that a respondent was not a “local person” is a factor which may be considered by the trial court under certain circumstances in setting sufficient bail to ensure the respondent’s appearance. State v. Toomey, 126 Vt. 123, 223 A.2d 473, 1966 Vt. LEXIS 175 (1966).

Fact that victim of the alleged offense was a “local person,” while respondent was not, is not, of itself, a tenable reason upon which the trial court could exercise its discretion in setting bail. State v. Toomey, 126 Vt. 123, 223 A.2d 473, 1966 Vt. LEXIS 175 (1966).

Multiple defendants.

In criminal proceedings against more than one defendant the standards for fixing bail are to be applied to each defendant individually. State v. Toomey, 126 Vt. 123, 223 A.2d 473, 1966 Vt. LEXIS 175 (1966).

Right to bail.

An accused person is bailable as a matter of right unless charged with a capital offense when the proof of guilt is evident or presumption great. State v. Toomey, 126 Vt. 123, 223 A.2d 473, 1966 Vt. LEXIS 175 (1966).

§ 3472. Surety bond in lieu of recognizance.

Whenever in any civil proceeding, surety by way of recognizance is required, the court or magistrate before whom such proceedings are pending may accept a good and sufficient surety bond in lieu of such recognizance.

HISTORY: Amended 1967, No. 337 (Adj. Sess.), § 2, eff. July 1, 1968.

History

Source.

V.S. 1947, § 1275. P.L. § 1243. 1927, No. 40 , § 1.

Amendments

—1967 (Adj. Sess.). Omitted “or criminal proceedings”.

CROSS REFERENCES

Surety bonds by fidelity insurance companies, see 8 V.S.A. § 4144a .

§ 3473. Insufficiency of recognizance or bail; order for new bail.

When it appears that the security or recognizance for the prosecution of a pending cause or an appeal or the bail taken by the officer on the writ, is insufficient to secure the party for whose benefit the same was taken, the court, or the clerk in vacation, in his or her discretion, may order sufficient bail to be entered by a certain time, or that judgment be rendered against the party neglecting to comply with such order. Within the time provided, the party so required to furnish bail shall file with the clerk of the court a bond with sufficient surety in the amount required, to be approved by the clerk, or shall with sufficient surety, so approved, enter into a personal recognizance before the clerk in such amount. Such recognizance shall be entered by the clerk upon the docket of the cause.

History

Source.

V.S. 1947, § 1905. P.L. § 1852. G.L. § 2042. P.S. § 1763. V.S. § 1408. 1892, No. 28 , §§ 14, 16. 1884, No. 115 . R.L. § 1175. 1878, No. 78 . G.S. 30, § 50. R.S. 25, § 14. R. 1797, p. 95, § 45.

ANNOTATIONS

Chancery.

Where recognizance for costs in chancery suit is deemed by defendant to be inadequate, his remedy is to move for additional security under this section and not by way of motion to dismiss or abate. Beebe v. Rupert, 114 Vt. 172, 41 A.2d 149, 1945 Vt. LEXIS 65 (1945).

Pleading.

Demurrer in action of debt on recognizance, on ground that it did not appear by declaration nor by record produced by plaintiff on oyer, that there was sufficient compliance with this section to charge defendant with liability, amounted to a demurrer for want of facts alleged, and reached the declaration and not the record. White v. Hall, 91 Vt. 57, 99 A. 274, 1916 Vt. LEXIS 221 (1916).

§ 3474. Release of bail for misrepresentations, etc.

When it is made to appear to the court by a person who is bail for a party in a cause pending therein, that he or she was induced to enter bail by misrepresentations or by promise of indemnity which has not been performed, with the consent of the party for whose security the bail is taken, the court may discharge such bail, and order new bail on reasonable terms.

History

Source.

V.S. 1947, § 1906. P.L. § 1853. G.L. § 2043. P.S. § 1764. V.S. § 1409. R.L. § 1176. G.S. 30, § 50. 1853, No. 18 .

§ 3475. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 3475. Former § 3475, relating to right of bail, bailpiece, was derived from V.S. 1947, § 2205; P.L. § 2153; G.L. § 2342; P.S. § 2064; V.S. § 1709; R.L. § 1464; G.S. 33, § 68; R.S. 28, § 33; 1812, p. 79; R. 1797, p. 88, § 32. The section is now covered by V.R.C.P. 4.3.

§ 3476. Rights of bail—Bailpiece in bastardy proceedings.

When a surety recognizes before a Superior judge, for the appearance before the Superior Court of a person charged with being the father of a bastard child, the officer making the arrest upon the warrant shall deliver to such surety a bailpiece, if required, provided the recognizance is entered into before a Superior judge. If such recognizance is entered into before a judge of the Superior Court, the keeper of the jail in the county in which the principal is confined shall, if required, deliver to such surety a bailpiece.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 249 (Adj. Sess.), § 22, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2206. P.L. § 2154. G.L. § 2343. 1915, No. 1 , § 91. 1908, No. 62 . P.S. § 2065. V.S. § 1710. 1884, No. 97 , § 1.

Revision note

—2017. Replaced “District” with “Superior” pursuant to 2009, No. 154 (Adj. Sess.), § 236.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court” in the first and second sentences.

Omitted reference to justice of peace and rephrased.

—1965. Substituted “district” for “municipal” judge and court.

§ 3477. Warrant thereon.

Upon presentation of a bailpiece to a Superior judge, such magistrate shall issue to the surety a warrant directed to any sheriff or constable in the State, commanding him to assist such surety in apprehending the principal.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 249 (Adj. Sess.), § 23, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2207. P.L. § 2155. G.L. § 2344. 1908, No. 62 . P.S. § 2066. V.S. § 1711. 1884, No. 87 , § 2. R.L. § 1465. G.S. 33, § 69. R.S. 28, § 34. R. 1797, p. 88, § 32.

Revision note

—2017. Substituted “Superior” for “district” pursuant to 2009, No. 154 (Adj. Sess.), § 236.

Amendments

—1973 (Adj. Sess.). Omitted reference to justice of the peace.

—1965. Substituted “district” for “municipal” judge.

§ 3478. Use of warrant.

When he has occasion to arrest the principal, a surety may use such warrant to surrender him in court in discharge of his bail on the original process or upon scire facias or to secure him until a term of the court in which he may be surrendered for that purpose.

History

Source.

V.S. 1947, § 2208. P.L. § 2156. G.L. § 2345. P.S. § 2067. V.S. § 1712. 1884, No. 97 , § 3. R.L. § 1466. G.S. 33, §§ 68, 70. R.S. 28, §§ 33, 35. R. 1797, p. 88, § 32.

§ 3479. Commitment of principal.

The officer apprehending the principal may commit him to jail in the county in which he was arrested on the original process or in the county in which the process is pending, agreeably to the direction in the warrant. Such commitment shall be considered as a commitment on the original process, if the same is pending.

History

Source.

V.S. 1947, § 2209. P.L. § 2157. G.L. § 2346. P.S. § 2068. V.S. § 1713. 1884, No. 97 , § 4. R.L. § 1467. G.S. 33, §§ 69, 71. R.S. 28, §§ 34, 36. R. 1797, p. 88, § 32.

§§ 3480, 3481. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 3480, 3481. Former §§ 3480, 3481 related to bail, delivering and committing principal. These sections are now covered by V.R.C.P. 4.3.

Former § 3480 was derived from V.S. 1947, § 2210; P.L. § 2158; G.L. § 2347; P.S. § 2069; V.S. § 1714; R.L. § 1468; G.S. 33, §§ 65, 70; R.S. 28, §§ 30, 35; R. 1797, p. 87, § 29; R. 1797, p. 88, § 32.

Former § 3481 was derived from V.S. 1947, § 2211; P.L. § 2159; G.L. § 2348; P.S. § 2070; V.S. § 1715; R.L. § 1469; G.S. 33, § 66; R.S. 28, § 31.

§ 3482. Principal delivered in bastardy proceedings.

A surety on the recognizance in a bastardy complaint may deliver the principal into court in discharge of his recognizance before the principal is adjudged to be the father of such bastard child and the court has made an order charging him with its support, but not after. Such surety may commit the principal to jail so that he may be delivered into court, before such adjudication and order.

History

Source.

V.S. 1947, § 2212. P.L. § 2160. G.L. § 2349. P.S. § 2071. V.S. § 1716. 1884, No. 97 , § 5.

§ 3483. Commitment of principal.

When the principal is delivered into court under section 3482 of this title, the court shall order him committed to jail, unless he enters into a recognizance before the court, with sufficient sureties, in the sum fixed by the order of the judge, conditioned as provided by law in such cases. Such commitment shall be deemed a commitment on the original warrant.

HISTORY: Amended 1973, No. 249 (Adj. Sess.), § 24, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2213. P.L. § 2161. G.L. § 2350. P.S. § 2072. V.S. § 1717. 1884, No. 97 , § 6.

Amendments

—1973 (Adj. Sess.). Omitted the words “justice or” preceding the word “judge” in the first sentence.

§ 3484. Surety may have warrant.

A surety in a recognizance taken by a Justice of the Supreme Court, a judge of a Superior Court, or a clerk of the Supreme or Superior Court, may make written application to the authority taking the recognizance for a warrant to apprehend the principal and commit him to jail. The authority taking the recognizance shall thereupon issue such warrant, directed to any sheriff or constable in the State. When the principal is committed to jail on such warrant, the bail shall be discharged.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 249 (Adj. Sess.), § 25, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2214. P.L. § 2162. G.L. § 2351. 1917, No. 254 , § 2314. 1915, No. 1 , § 92. P.S. § 2073. V.S. § 1718. 1884, No. 132 .

Revision note

—2017. Deleted “District or” pursuant to 2009, No. 154 (Adj. Sess.), § 236.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

Omitted reference to justice of the peace.

—1965. Substituted “district” for “municipal” court.

§§ 3485-3490. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 3485-3490. Former §§ 3485-3490 related to remedies against bail. These sections are now covered by V.R.C.P. 4.3.

Former § 3485 was derived from V.S. 1947, § 2215; P.L. § 2163; 1933, No. 157 , § 2002; G.L. § 2352; P.S. § 2074; V.S. § 1719; R.L. § 1470; G.S. 33, § 62; R.S. 28, § 27; 1821, p. 77; R. 1797, p. 86, § 29; R. 1797, p. 90, § 34; 1791, p. 8; R. 1787, p. 146.

Former § 3486 was derived from V.S. 1947, § 2216; P.L. § 2164; G.L. § 2353; P.S. § 2075; V.S. § 1720; 1884, No. 136 ; R.L. § 1471; G.S. 33, § 63; R.S. 28; § 28; 1818, p. 75; R. 1797, p. 86, § 29; R. 1787, p. 146.

Former § 3487 was derived from V.S. 1947, § 2217; P.L. § 2165; G.L. § 2354; 1915, No. 1 , § 93; P.S. § 2076; V.S. § 1721; R.L. § 1472; G.S. 33, § 63; R.S. 28, § 28; 1821, p. 79.

Former § 3488 was derived from V.S. 1947, § 2218; P.L. § 2166; G.L. § 2355; P.S. § 2077; V.S. § 1722; R.L. § 1473; G.S. 33, § 72; R.S. 28, § 27.

Former § 3489 was derived from V.S. 1947, § 2219; P.L. § 2167; G.L. § 2356; P.S. § 2078; V.S. § 1723; R.L. § 1474; G.S. 33, § 64; R.S. 28, § 29; R. 1797, p. 87, § 29.

Former § 3490 was derived from V.S. 1947, § 2220; P.L. § 2168; G.L. § 2357; P.S. § 2079; V.S. § 1724; R.L. § 1475; G.S. 33, § 73; R.S. 28, § 38; R. 1797, p. 88, § 30.

Subchapter 2. Arrest in Actions Founded on Contract

§ 3521. Imprisonment for debt abolished.

No person shall be arrested or imprisoned on mesne process. No person shall be arrested or imprisoned on an execution or by other means to enforce a judgment in any civil action for money damages. Notwithstanding the provisions herein, the court shall have full power to punish for contempt.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 96, eff. March 29, 1972; 1979, No. 67 , § 1, eff. date, see note set out below.

History

Source.

V.S. 1947, § 2221. P.L. § 2170. G.L. § 2359. P.S. § 2081. V.S. § 1726. 1892, No. 42 . 1890, No. 47 . R.L. § 1477. G.S. 33, § 76. 1852, No. 3 . R.S. 28, § 3. 1838, No. 12 , § 1. 1819, p. 31.

Amendments

—1979. Amended generally by deleting exceptions for imprisonment.

—1971 (Adj. Sess.). Section amended generally.

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

Vermont Rules of Civil Procedure. For effectiveness of V.R.C.P., see note set out under § 2681 of this title.

CROSS REFERENCES

Abolishment of civil arrest, see V.R.C.P. 4.3.

Judgments, execution, see V.R.C.P. 69.

Tort action for drawing check without sufficient funds, see 9 V.S.A. 2311.

ANNOTATIONS

Contract and tort action distinguished.

An unfulfilled promise to furnish a tractor and plow will support a tort action if such promise is part of a general scheme to defraud. Jobidon v. Lussier, 124 Vt. 242, 204 A.2d 88, 1964 Vt. LEXIS 95 (1964).

If complaint was actually in contract but writ issued as a capias with arrest of defendant thereon, court would be without jurisdiction of the process. New England Acceptance Corp. v. Nichols, 110 Vt. 478, 8 A.2d 665, 1939 Vt. LEXIS 168 (1939).

Where complaint contains some counts sounding in contract and other counts sounding in tort, writ issued as a capias is void on its face, court is without jurisdiction, and the infirmity cannot be corrected by amendment or otherwise. Howard v. Chapman, 101 Vt. 152, 141 A. 686, 1928 Vt. LEXIS 135 (1928); Parker v. Roberts, 99 Vt. 219, 131 A. 21, 1925 Vt. LEXIS 182 (1925); Roy v. Phelps, 83 Vt. 174, 75 A. 13, 1910 Vt. LEXIS 175 (1910).

Where complaint on false warranty in sale of goods did not allege knowledge of falsity of defendant, action was founded on contract instead of tort and arrest of defendant was not authorized. Roy v. Phelps, 83 Vt. 174, 75 A. 13, 1910 Vt. LEXIS 175 (1910); Caldbeck v. Simanton, 82 Vt. 69, 71 A. 881, 1909 Vt. LEXIS 247 (1909).

Conversion by fiduciary, see annotations under §§ 3529 and 3625 of this title.

Execution against bail.

Liability incurred by one who becomes bail for defendant on mesne process, is a liability upon contract, and execution issued against body of such bail, upon judgment against him on scire facias, will be set aside. Stoughton v. Barrett, 20 Vt. 385, 1848 Vt. LEXIS 52 (1848).

Execution on judgment.

Probate court had no power to imprison executor until he complied with order for payment of money, since this would be imprisonment for a judgment debt. In re Leach, 51 Vt. 630, 1879 Vt. LEXIS 136 (1879).

A judgment is a contract, and an execution, obtained in an action of debt upon a judgment, cannot legally issue against body of debtor. Sawyer v. Vilas, 19 Vt. 43, 1846 Vt. LEXIS 107 (1846).

Setting aside execution.

Audita querela will lie to set aside an execution wrongfully issued against body of execution debtor. Sawyer v. Vilas, 19 Vt. 43, 1846 Vt. LEXIS 107 (1846); Stoughton v. Barrett, 20 Vt. 385, 1848 Vt. LEXIS 52 (1848).

§§ 3522-3530. Repealed. 1979, No. 67, § 9, eff. date, see note set out below.

History

Former §§ 3522-3530. Former § 3522, relating to absconding debtor, was derived from 1955, No. 144 ; V.S. 1947, § 2222; P.L. § 2171; G.L. § 2360; P.S. § 2082; V.S. § 1727; R.L. § 1478; G.S. 33, § 76; 1852, No. 3 ; 1846, No. 43 ; 1843, No. 9 ; R.S. 28, § 63, and amended by 1971, No. 185 (Adj. Sess.), § 97.

Former § 3523, relating to examination before authority signing writ, was derived from V.S. 1947, § 2223; P.L. § 2172; G.L. § 2361; 1812, No. 94 , § 1; P.S. § 2083; V.S. § 1728; R.L. § 1479; G.S. 33, § 78; 1854, No. 11 ; 1845, No. 28 , § 1, and amended by 1971, No. 185 (Adj. Sess.), § 98.

Former § 3524, relating to discharge of defendant and effect of writ, was derived from V.S. 1947, § 2224; P.L. § 2173; G.L. § 2362; 1812, No. 94 , § 2; P.S. § 2084; V.S. § 1729; R.L. § 1480; G.S. 33, § 78; 1854, No. 11 ; 1845, No. 28 § 1, and amended by 1971, No. 185 (Adj. Sess.), § 99.

Former § 3525, relating to examination if writ returnable in another county, was derived from V.S. 1947, § 2225; P.L. § 2174; G.L. § 2363; 1812, No. 94 , § 3; P.S. § 2085; V.S. § 1730; R.L. § 1481; G.S. 33, §§ 79, 81; 1857, No. 21 , §§ 1, 3.

Former § 3526, relating to custody of defendant pending examination, was derived from V.S. 1947, § 2226; P.L. § 2175; G.L. § 2364; P.S. § 2086; V.S. § 1731; R.L. § 1482; G.S. 33, § 80; 1857, No. 21 , § 2, and amended by 1971, No. 185 (Adj. Sess.), § 100.

Former § 3527, relating to costs, was derived from V.S. 1947, § 2227; P.L. § 2176; G.L. § 2365; P.S. § 2087; V.S. § 1732; R.L. § 1483; G.S. 33, § 82; 1845, No. 28 , § 2, and amended by 1971, No. 185 (Adj. Sess.), § 101.

Former § 3528, relating to execution of costs, was derived from V.S. 1947, § 2228; P.L. § 2177; G.L. § 2366; P.S. § 2088; V.S. § 1733; R.L. § 1484; G.S. 33, § 83; 1845, No. 28 , § 3, and amended by 1971, No. 185 (Adj. Sess.), § 102.

Former § 3529, relating to defendant who acted in fiduciary capacity, was derived from V.S. 1947, § 2229; P.L. § 2178; G.L. § 2367; P.S. § 2089; V.S. § 1734; R.L. § 1485; G.S. 33, § 77; 1845, No. 30 , § 2, and amended by 1971, No. 185 (Adj. Sess.), § 103.

Former § 3530, relating to examination after judgment; debtor may submit self for examination, was derived from V.S. 1947, § 2232; P.L. § 2181; G.L. § 2370; 1908, No. 62 ; P.S. § 2092; V.S. § 1737; R.L. § 1488; G.S. 33, § 87; R.S. 28, § 64; 1830, No. 5 , § 1, and amended by 1971, No. 185 (Adj. Sess.), § 104 and 1978, No. 249 (Adj. Sess.), § 26.

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

§ 3531. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 3531. Former § 3531, relating to continuance of cause, was derived from V.S. 1947, § 2233; P.L. § 2182; G.L. § 2371; 1908, No. 62 ; P.S. § 2093; V.S. § 1783; R.L. § 1489; G.S. 33, § 89; R.S. 26, § 66; 1832, No. 7 , § 1, and amended by 1965, No. 194 , § 10; 1971, No. 185 (Adj. Sess.), § 105.

§§ 3532, 3533. Repealed. 1979, No. 67, § 9, eff. date, see note set out below.

History

Former §§ 3532, 3533. Former § 3532, relating to the poor debtor’s oath, was derived from V.S. 1947, § 2234; P.L. § 2183; G.L. § 2372; P.S. § 2094; V.S. § 1739; R.L. § 1490; G.S. 33, § 88; R.S. 28, § 65 and 1830, No. 5 , § 1.

Former § 3533, relating to creditor’s costs, was derived from V.S. 1947, § 2235; P.L. § 2184; G.L. § 2373; P.S. § 2095; V.S. § 1740; R.L. § 1491; G.S. 33, § 90; R.S. 28, § 67 and 1832, No. 7 , § 3.

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

Subchapter 3. Procedure for Arrest and Imprisonment

§ 3571. Place of commitment.

When a person authorized to serve process is required by law to commit a person to jail, such commitment shall be in the county where the arrest is made, unless otherwise required by law. If there is not a legal jail in the county, the commitment shall be made in an adjoining county in which there is a legal jail.

History

Source.

V.S. 1947, § 2197. P.L. § 2145. G.L. § 2334. P.S. § 2056. V.S. § 1701. R.L. § 1459. G.S. 33, §§ 59, 60. R.S. 28, §§ 24, 25. R. 1797, p. 92, §§ 37, 38. 1789, p. 17.

CROSS REFERENCES

General provisions concerning issuance and service of process, see ch. 25 of this title.

Arrest and bail in criminal cases, see 13 V.S.A. chapters 181 and 229.

ANNOTATIONS

Common law.

Although at common law when an officer arrested a man on mesne process in a civil action, he might make any place his prison, for the command of the writ gave him a general authority in this respect, yet this section has changed the common law in respect of this general authority and makes the authority special in such cases, notwithstanding the command of the writ remains the same. Gibson v. Holmes, 78 Vt. 110, 62 A. 11, 1905 Vt. LEXIS 90 (1905).

False imprisonment.

Where plaintiff in action for false imprisonment was arrested in county having a legal jail by officer on mesne process returnable before a justice of the peace and sued out by attorney on debt placed in his hands by client for suit, and by direction of attorney given pursuant to understanding with client, officer took plaintiff into another county and there lodged him in jail, where he remained about an hour, when he was released, if plaintiff was thus imprisoned without his consent, both officer and client were trespassers and jointly responsible. Gibson v. Holmes, 78 Vt. 110, 62 A. 11, 1905 Vt. LEXIS 90 (1905).

Form of execution.

Execution commanding officer, for want of sufficient goods and chattels of the debtor, to take his body and commit him to the keeper of the jail in the county, “or such other jail as the law directs,” sufficiently complied with the statutory form of § 5908 of this title and justified commitment of debtor to jail in an adjoining county, when jail in county where the arrest was made had been destroyed by fire. In re Hunt, 85 Vt. 345, 82 A. 178, 1912 Vt. LEXIS 196 (1912).

When there was no legal jail in county, there was no error in mittimus directing commitment to jail in adjoining county. State v. Malloy, 54 Vt. 96, 1881 Vt. LEXIS 77 (1881).

In action of trespass for false imprisonment, officer cannot justify under execution regular upon its face, where he commits debtor in different county from the one in which arrest is made, when there is a legal jail in the latter county, although commitment is made in county commanded in execution. Clayton v. Scott, 45 Vt. 386, 1872 Vt. LEXIS 119 (1872).

Warrants.

This section relates to process by which the officer is directed to commit to jail, and does not apply to a warrant directing officer to apprehend respondent and have him forthwith to appear before county court. Kent v. Miles, 69 Vt. 379, 37 A. 1115 (1897), same case 65 Vt. 582, 27 A. 194, 68 Vt. 48, 33 A. 768. Compare In re Durant (1887) 60 Vt. 176, 12 A. 650, 1887 Vt. LEXIS 80.

§ 3572. Manner of commitment.

The officer committing a prisoner shall deliver him or her to the keeper of the jail, within the same, and give the keeper an attested copy of the process on which the commitment is made, with his or her return thereon.

History

Source.

V.S. 1947, § 2198. P.L. § 2146. G.L. § 2335. P.S. § 2057. V.S. § 1702. R.L. § 1460. G.S. 33, § 61. R.S. 28, § 26. R. 1797, p. 91, § 35. 1791, p. 8. R. 1787, p. 61.

ANNOTATIONS

Generally.

Under this section, commitment to jail consists of delivery of the person to keeper of jail within the same, and delivery to jailer of attested copy of writ by virtue of which commitment was made, with officer’s return of commitment. Kenerson v. Bacon, 41 Vt. 573, 1869 Vt. LEXIS 10 (1869).

Arrest and commitment without warrant.

Neither statutes as to furnishing copies of process on which prisoner is committed to jail, nor any other statutory provisions, take away or abridge right of arrest and commitment without warrant, or right of commitment under authority of a court of general jurisdiction without a mittimus. State v. Shaw, 73 Vt. 149, 50 A. 863, 1901 Vt. LEXIS 146 (1901).

Sufficiency of copy.

Neglect of officer to leave copy of mittimus and return with jailer does not invalidate commitment. State v. Malloy, 54 Vt. 96, 1881 Vt. LEXIS 77 (1881).

Where officer, upon committing the respondent, left copy of mittimus with jailer, and it appeared upon face of copy that signature of officer was intended to authenticate the paper, as a copy of the precept and return, such a mere informality did not render commitment and detention illegal. Ex parte Tracy, 25 Vt. 93, 1853 Vt. LEXIS 7 (1853).

Where debtor was committed to jail upon mesne process, and copy left by committing officer with jailer showed that the original process was a writ of summons, jailer was not liable for an escape for permitting debtor to go at large, since he was not bound to look beyond his copy of the process. Kidder v. Barker, 18 Vt. 454, 1846 Vt. LEXIS 71 (1846).

§ 3573. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 3573. Former § 3573, relating to arrest on mesne process in civil action, was derived from 1953, No. 118 ; 1951, No. 53 , § 1; V.S. 1947, § 2199; P.L. § 2147; G.L. § 2336; P.S. § 2058; V.S. § 1703; R.L. § 1461; G.S. 33, §§ 57, 58; R.S. 28, §§ 22, 23; R. 1797, p. 86, § 28; R. 1797, p. 91, § 35; 1791, p. 8. This section is now covered by V.R.C.P. 4.3.

§ 3574. Penalty for not delivering copy.

An officer who does not within six hours deliver a true copy of the warrant or process by which he or she detains a prisoner, to a person who demands such copy and tenders the fees therefor, shall forfeit to such prisoner $200.00, to be recovered in an action of tort on this statute.

History

Source.

V.S. 1947, § 2200. P.L. § 2148. G.L. § 2337. P.S. § 2059. V.S. § 1704. R.L. § 1462. G.S. 43, § 23. R.S. 38, § 23.

References in text.

The reference to “an action of tort” is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

ANNOTATIONS

Generally.

Officer is not liable for penalty for neglecting or refusing to give person copy of process by virtue of which he is arrested unless he has process for such arrest in his hands at the time. McMahan v. Edgerton, 34 Vt. 77, 1861 Vt. LEXIS 18 (1861).

Arrest and commitment without warrant.

Neither statutes as to furnishing copies of process on which prisoner is committed to jail, nor any other statutory provisions, take away or abridge right of arrest and commitment without warrant, or right of commitment under authority of a court of general jurisdiction without a mittimus. State v. Shaw, 73 Vt. 149, 50 A. 863, 1901 Vt. LEXIS 146 (1901).

§§ 3575, 3576. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 3575, 3576. Former §§ 3575, 3576 related to liability of officer and reduction of bail. These sections are now covered by V.R.C.P. 4.3.

Former § 3575 was derived from V.S. 1947, § 2201; P.L. § 2149; G.L. § 2338; P.S. § 2060; V.S. § 1705; R.L. § 1463; G.S. 33, § 67; R.S. 28, § 32; R. 1797, p. 87, § 29; R. 1787, p. 147.

Former § 3576 was derived from V.S. 1947, § 2204; P.L. § 2152; G.L. § 2341; P.S. § 2063; 1906, No. 63 , § 34; V.S. § 1708; 1890, No. 26 , § 1.

§ 3577. Privilege from arrest.

  1. The Governor, Lieutenant Governor, State Treasurer, Secretary of State, Auditor of Accounts, Attorney General, and members of the General Assembly and officers and witnesses whose duty it is to attend thereon, in all cases except treason, felony, and breach of the peace, shall be privileged from arrest and imprisonment during their necessary attendance on and in going to and returning from the General Assembly.
  2. A party or witness in a cause pending in any court in the State or before special masters, auditors, referees, or commissioners, and a witness in a criminal cause pending in any such court, shall not be arrested, imprisoned or detained by virtue of civil process.  Any witness summoned from outside the State in a criminal cause, pending in any court within the State, shall be privileged from the service of papers of any kind whatsoever, and from arrest for any cause while going to, attending at, or returning from such court or trial of such cause.

History

Source.

V.S. 1947, §§ 2195, 2196. P.L. §§ 2143, 2144. 1919, No. 75 , § 1. G.L. §§ 2332, 2333. P.S. §§ 2054, 2055. R. 1906, § 1951. V.S. §§ 1699, 1700. R.L. §§ 1457, 1458. 1868, No. 24 . G.S. 1, § 77. G.S. 36, § 20. R.S. 1, § 74. R.S. 31, § 14. R. 1797, p. 552, § 9. 1791, p. 32.

CROSS REFERENCES

Witness summoned from outside the state in criminal action privileged from arrest or service of process, see 13 V.S.A. § 6648 .

ANNOTATIONS

Generally.

It is a settled rule of law that all persons who have any relation to a cause which calls for their attendance in court and who attend in the course of that cause, though not compelled by process, are for the sake of public justice protected from arrest in coming to, attending upon, and returning from the court. In re Healey, 53 Vt. 694, 1881 Vt. LEXIS 71 (1881).

For general discussion of privilege, see also Fletcher v. Baxter, 2 Aik. 224 (Vt. Feb. 1, 1827).

Contempt.

Person who violates privilege from arrest of party or witness will be held in contempt of court. In re Healey, 53 Vt. 694, 1881 Vt. LEXIS 71 (1881).

Criminal actions.

Statutory exemption of party from arrest applies only to parties in civil suits, and does not extend to a respondent in a criminal prosecution. Scott v. Curtis, 27 Vt. 762, 1855 Vt. LEXIS 118 (1855).

§ 3578. Pleading privilege from arrest.

  1. When a person is privileged from arrest on execution so informs the officer at the time the arrest is made and claims his or her privilege, the giving of a jail bond shall not be deemed a waiver thereof but the facts shall be sufficient defense to an action for breach of condition of the bond.
  2. The person making the arrest shall state in his or her return of service of the execution that the person arrested made known to him or her and claimed his or her privilege from arrest.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 106, eff. March 29, 1972.

History

Source.

V.S. 1947, §§ 2230, 2231. P.L. §§ 2179, 2180. G.L. §§ 2368, 2369. P.S. §§ 2090, 2091. V.S. §§ 1735, 1736. R.L. §§ 1486, 1487. G.S. 33, §§ 84, 85, 86. 1849, No. 4 , §§ 1, 2, 3.

Amendments

—1971 (Adj. Sess.). Omitted provisions relating to arrest on mesne process.

CROSS REFERENCES

Abolishment of civil arrest, see V.R.C.P. 4.3.

ANNOTATIONS

Scope of exemption.

Mere incumbency of office of postmaster constitutes no privilege from arrest in civil actions. Bartlett v. Bonazzi, 90 Vt. 284, 98 A. 80 (1916), same case 91 Vt. 192, 99 A. 886.

Provision that persons privileged from arrest who shall make it known to the officer may plead it in abatement is intended for those only who are exempted from arrest on peculiar grounds, as parties, witnesses, members of the legislature, etc., and has no application to case of a person not so exempted, who is arrested in consequence of the filing of an affidavit that he is about to abscond, or remove. Bank of Vergennes v. Barker, 27 Vt. 243, 1855 Vt. LEXIS 17 (1855).

Summons.

The privilege of a nonresident witness from service of mesne process by summons in a civil case cannot be pleaded in abatement. Wilkins’ Adm’r v. Brock, 79 Vt. 57, 64 A. 232 (1906), same case 81 Vt. 332, 70 A. 572.

Waiver.

Prior to this section, where principal was arrested while attending court as witness and did not claim his privilege but gave bail, it was a waiver of the privilege and could not be made the ground of a defense in an action against the bail. Fletcher v. Baxter, 2 Aik. 224 (Vt. Feb. 1, 1827).

§ 3579. Detaining public carrier to make arrest; penalties.

  1. An officer who has a writ of execution or criminal process for the arrest of a person whom he or she has reason to believe is on a public carrier may notify the operator of the carrier thereof.  The operator shall thereupon detain the carrier a reasonable length of time at any place where it is scheduled to stop, and before it leaves the State, to enable the officer to examine the carrier and, if found, to arrest and remove the person against whom he or she has the writ of execution or criminal process.
  2. An operator who, after due notice from an officer holding a writ of execution or criminal process as specified in subsection (a) of this section, refuses or neglects to detain the carrier, and in consequence thereof the person sought to be arrested escapes from the borders of this State, if for a civil action, shall be liable to the plaintiff in an action of tort on this statute, for all damages arising therefrom.  If for a criminal action, he or she shall be fined not more than $100.00.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 107, eff. March 29, 1972.

History

Source.

V.S. 1947, §§ 1582, 1583. P.L. §§ 1543, 1544. G.L. §§ 1759, 1760. P.S. §§ 1462, 1463. V.S. §§ 1113, 1114. 1888, No. 54 , §§ 1, 2.

References in text.

The reference to “an action of tort” in subsec. (b) is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

Amendments

—1971 (Adj. Sess.). Subsecs. (a), (b): Added “of execution or criminal” preceding “process” and rephrased to provide for all public carriers rather than trains.

ANNOTATIONS

Train crew.

Officer having writ by which he is commanded to arrest the body of defendant, a railroad engineer, may lawfully stop a train of cars run by such engineer for purpose of making arrest. St. Johnsbury & L.C.R.R. v. Hunt, 60 Vt. 588, 15 A. 186 (1888), same case 55 Vt. 570, 59 Vt. 294, 7 A. 277.

§ 3580. Escapes—Jailer to keep prisoner.

The keeper of a jail shall safely keep a prisoner committed to his or her custody until discharged from imprisonment.

History

Source.

V.S. 1947, § 2236. P.L. § 2185. G.L. § 2374. P.S. § 2096. V.S. § 1741. R.L. § 1492. G.S. 121, § 11. R.S. 103, § 10.

ANNOTATIONS

Generally.

See annotations under § 3581 of this title.

§ 3581. Liability for escapes.

Such keeper shall be liable for escapes made from such jail.

History

Source.

V.S. 1947, § 2237. P.L. § 2186. G.L. § 2375. P.S. § 2097. V.S. § 1742. R.L. § 1493. G.S. 121, § 13. R.S. 103, § 11. R. 1797, p. 318, § 4. 1793, p. 57.

ANNOTATIONS

Construction.

Sections 3580 and 3581 of this title are declaratory of the common law. Mangan's Adm'x v. Franzoni, 116 Vt. 351, 75 A.2d 665, 1950 Vt. LEXIS 163 (1950).

Election of remedies.

Action against sheriff for escape is an election to consider debtor out of custody, and creditor cannot afterwards oppose discharge of debtor; nor can creditor retake debtor and have his remedy against the sheriff for the escape. Mangan's Adm'x v. Smith, 116 Vt. 401, 78 A.2d 12, 1951 Vt. LEXIS 108 (1951).

Sufficiency of process.

Jailer is not liable for escape for not detaining a debtor committed upon what appears, from copy left with jailer at time of commitment, to be a void process, since he is not bound to look beyond his copy. Kidder v. Barker, 18 Vt. 454, 1846 Vt. LEXIS 71 (1846).

If a debtor is committed to jail on mesne process for want of bail, execution must be placed in the officer’s hands in season to commit him within fifteen days after rendition of judgment against him, notwithstanding debtor may have actually escaped from jail previous to rendition of judgment; and if this is not done, no action can be sustained against sheriff by creditor for such escape. Weeks v. Martin, 16 Vt. 237, 1844 Vt. LEXIS 59 (1844).

What constitutes escape.

Although a sheriff may not, as indulgence or privilege, relax strictness of close jail confinement, he is not to be held conclusively liable for an escape upon proof that he has taken or allowed prisoner to be out of jail in custody of himself or his deputy; if the absence is temporary and for justifiable and good cause, and control of sheriff is at all times maintained, either personally or through agency of a deputy, there is no escape. Mangan's Adm'x v. Franzoni, 116 Vt. 351, 75 A.2d 665, 1950 Vt. LEXIS 163 (1950).

If absence from close jail confinement is mere indulgence or privilege granted prisoner, there is a voluntary escape for which sheriff is liable in damages. Mangan's Adm'x v. Franzoni, 116 Vt. 351, 75 A.2d 665, 1950 Vt. LEXIS 163 (1950).

Departure from the liberties of the prison under color of a void special act of the general assembly is an escape. Ward v. Barnard, 1 Aik. 121 (Vt. Dec. 1, 1825).

Liability of jailer taking jail bond, see annotations under § 3638 of this title.

§ 3582. County answerable if jail insufficient.

When an escape is made in consequence of the insufficiency of the jail, without negligence of the keeper, either in keeping the prisoner or repairing the jail, the county shall be answerable to such keeper for the costs and damages he or she sustains in consequence.

History

Source.

V.S. 1947, § 2238. P.L. § 2187. G.L. § 2376. P.S. § 2098. V.S. § 1743. R.L. § 1494. G.S. 121, § 16. R.S. 103, § 12. R. 1797, p. 318, § 4. 1793, p. 57.

§§ 3583, 3584. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 3583, 3584. Former §§ 3583, 3584 related to pleading privilege from arrest. These sections are now covered by V.R.C.P. 4.3.

Former § 3583 was derived from V.S. 1947, § 2239; P.L. § 2188; G.L. § 2377; P.S. § 2099; V.S. § 1744; R.L. § 1495; G.S. 121, § 14; 1849, No. 9 , § 1.

Former § 3584 was derived from V.S. 1947, § 2240; P.L. § 2189; G.L. § 2378; P.S. § 2100; V.S. § 1745; R.L. § 1496; G.S. 121, § 15; 1849, No. 9 , § 2.

§ 3585. Defense and recovery in action on escape.

In an action for an escape, such keeper may prove the circumstances attending the same and the circumstances and property of the prisoner when he or she escapes. The creditor shall recover only the reasonable damages which he or she sustains in consequence of the escape, and his or her costs.

History

Source.

V.S. 1947, § 2241. P.L. § 2190. G.L. § 2379. P.S. § 2101. V.S. § 1746. R.L. § 1497. G.S. 121, § 17. R.S. 103, § 13. R. 1797, p. 318, § 4. 1793, p. 57.

ANNOTATIONS

Damages.

On question of damages resulting from escape of prisoner, officer was entitled to show, in mitigation of damages, the financial situation of prisoner, and if prisoner had no property which could be applied on the execution, only nominal damages would be awarded. Mangan's Adm'x v. Franzoni, 116 Vt. 351, 75 A.2d 665, 1950 Vt. LEXIS 163 (1950).

Subchapter 4. Admission to Liberties of the Jail Yard; Close Jail Executions; Jail Bonds

§§ 3621-3628. Repealed. 1979, No. 67, § 9, eff. date, see note set out below.

History

Former §§ 3621-3628. Former § 3621, relating to admission to liberties on giving bond, was derived from V.S. 1947, § 2243; P.L. § 2192; G.L. § 2381; P.S. § 2103; V.S. § 1748; R.L. § 1499; G.S. 121, § 23; R.S. 103, § 17; 1821, p. 80; R. 1797, p. 321, § 10, and amended by 1971, No. 185 (Adj. Sess.), § 108.

Former § 3622, relating to prisoner committed on jail bond not admitted, was derived from V.S. 1947, § 2244; 1947, No. 202 , § 2278; P.L. § 2193; G.L. § 2382; P.S. § 2104; V.S. § 1749; R.L. § 1500; G.S. 121, § 23; R.S. 103, § 17; 1823, p. 10; 1802, p. 155.

Former § 3623, relating to execution on jail bond; certificate, was derived from V.S. 1947, § 2245; P.L. § 2194; G.L. § 2383; P.S. § 2105; V.S. § 1750; R.L. § 1501; G.S. 121, § 25; R.S. 103, § 32 and 1802, p. 155.

Former § 3624, relating to close jail execution; tort, was derived from V.S. 1947, § 2246; P.L. § 2195; G.L. § 2384; P.S. § 2106; V.S. § 1751; R.L. § 1502; G.S. 121, § 23; R.S. 103, § 17; 1823, p. 10, and amended by 1971, No. 184 (Adj. Sess.), § 109.

Former § 3625, relating to action for money or property held in trust or fiduciary capacity, was derived from V.S. 1947, § 2249; P.L. § 2196; G.L. § 2385; P.S. § 2107; V.S. § 1752; R.L. § 1503; G.S. 121, § 24; 1853, No. 26 , and amended by 1971, No. 184 (Adj. Sess.), § 110.

Former § 3626, relating to revival or enforcement of judgment; revival of certificate, was derived from V.S. 1947, § 2250; P.L. § 2197; G.L. § 2386; P.S. § 2108; 1902, No. 42 , § 1; V.S. § 1685; 1804, No. 46 ; R.L. § 1443; G.S. 33, § 74; 1842, No. 30 , § 2, and amended by 1971, No. 184 (Adj. Sess.), § 111.

Former § 3627, relating to conditional release on close jail execution, was derived from V.S. 1947, § 2247 and 1942, No. 29 , § 1.

Former § 3628, relating to bond for conditional release; recommitment, was derived from V.S. 1947, § 2248 and 1943, No. 29 , § 2.

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

§ 3629. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 3629. Former § 3629, relating to surrender of principal on jail bond, was derived from V.S. 1947, § 2251; P.L. § 2198; G.L. § 2387; P.S. § 2109; V.S. § 1753; R.L. § 1504; G.S. 121, § 26; R.S. 103, § 18; 1801, p. 12. This section is now covered by V.R.C.P. 4.3.

§§ 3630-3638. Repealed. 1979, No. 67, § 9, eff. date, see note set out below.

History

Former §§ 3630-3638. Former § 3630, relating to surety entitled to bailpiece, was derived from V.S. 1947, § 2252, P.L. § 2199; G.L. § 2388; P.S. § 2110; V.S. § 1748; R.L. § 1754; R.L. § 1506; G.S. 121, § 27; R.S. 103, § 47; 1812, p. 160.

Former § 3631, relating to warrant to recommit, was derived from V.S. 1947, § 2253; P.L. § 2200; G.L. § 2389; 1908, No. 62 ; P.S. § 2111; V.S. § 1755; R.L. § 1506; G.S. 121, § 28; R.S. 103, § 48; 1812, p. 161, and amended by 1971, No. 185 (Adj. Sess.), § 112.

Former § 3632, relating to effect of recommitment, was derived from V.S. 1947, § 2254; P.L. § 2201; G.L. § 2390; P.S. § 2112; V.S. § 1756; R.L. § 1507; G.S. 121, § 29; R.S. 103, § 49 and 1812, p. 161.

Former § 3633, relating to liberties of recommitted prisoner, was derived from V.S. 1947, § 2255; P.L. § 2202; G.L. § 2391; P.S. § 2113; V.S. § 1757; R.L. § 1508; G.S. 121, § 30; R.S. 103, § 50 and 1812, p. 163.

Former § 3634, relating to sureties becoming insufficient; recommitment, was derived from V.S. 1947, § 2256; P.L. § 2203; G.L. § 2392; 1908, No. 62 ; P.S. § 2114; V.S. § 1758; R.L. § 1509; G.S. 121, § 31; R.S. 103, § 51; 1821, p. 164, and amended by 1971, No. 185 (Adj. Sess.), § 113.

Former § 3635, effect of recommitment, was derived from V.S. 1947, § 2257; P.L. § 2204; G.L. § 2393; P.S. § 2115; V.S. § 1759; R.L. § 1510; G.S. 121, § 32; R.S. 103, § 52 and 1812, p. 164.

Former § 3636, relating to representative of surety or jailer when jailer out of office, was derived from V.S. 1947, § 2258; P.L. § 2205; G.L. § 2394; P.S. § 2116; V.S. § 1760; R.L. § 1511; G.S. 121, § 33; R.S. 103, § 53; 1812, p. 164, and amended by 1971, No. 185 (Adj. Sess.), § 114.

Former § 3637, relating to assignment of broken bond to creditor, was derived from V.S. 1947, § 2259; P.L. § 2206; G.L. § 2395; P.S. § 2117; V.S. § 1761; R.L. § 1512; G.S. 121, § 34; R.S. 103, § 19; R. 1797, p. 322, § 11; R. 1787, p. 147, and amended by 1971, No. 185 (Adj. Sess.), § 115.

Former § 3638, relating to liability of jailer taking bond, was derived from V.S. 1947, § 2260; P.L. § 2207; G.L. § 2396; P.S. § 2118; V.S. § 1762; R.L. § 1513; G.S. 121, § 35; R.S. 103, § 20; R. 1797, p. 322 and R. 1787, p. 147.

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

Subchapter 5. Discharge from Imprisonment; Poor Debtors

§ 3671. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 3671. Former § 3671, relating to discharge of prisoner on mesne process, was derived from V.S. 1947, § 2242; P.L. § 2191; G.L. § 2380; P.S. § 2102; V.S. § 1747; R.L. § 1498; G.S. 121, § 20; R.S. 103, § 16; R. 1797, p. 91, § 36; 1791, p. 8. The section is now covered by V.R.C.P. 4.3.

§§ 3672-3687. Repealed. 1979, No. 67, § 9, eff. date, see note set out below.

History

Former § 3672-3687. Former § 3672, relating to discharge by creditor and alias execution, was derived from V.S. 1947, § 2284; P.L. § 2231; G.L. § 2420; 1915, No. 1 , § 95; P.S. § 2142; V.S. § 1786; R.L. § 1537; G.S. 121, §§ 60, 61; R.S. 103, §§ 45, 46; 1837, No. 4 ; 1803, p. 93; 1802, p. 191.

Former § 3673, relating to poor debtor’s oath and actions in which available, was derived from V.S. 1947, § 2261; P.L. § 2208; G.L. § 2397; P.S. § 2119; V.S. § 1763; R.L. § 1514; 1874, No. 73 ; G.S. 121, § 36; R.S. 103, § 21; 1823, p. 10; R. 1797, p. 323, § 12; R. 1787, p. 77.

Former § 3674, relating to application to commissioners of jail delivery, was derived from V.S. 1947, § 2262; P.L. § 2209; G.L. § 2398; P.S. § 2120; V.S. § 1764; R.L. § 1515; G.S. 121, § 37; R.S. 103, § 22; R. 1797, p. 323, § 12; R. 1787, p. 77.

Former § 3675, relating to service of citation, was derived from V.S. 1947, § 2263; P.L. § 2210; G.L. § 2399; P.S. § 2121; V.S. § 1765; 1890, No. 49 ; R.L. § 1516; G.S. 121, § 38; R.S. 103, § 23; 1829, p. 23; R. 1797, p. 323, § 12; R. 1787, p. 77.

Former § 3676, relating to service in case of several creditors, was derived from V.S. 1947, § 2264; P.L. § 2211; G.L. § 2400; P.S. § 2122; V.S. § 1766; R.L. § 1517; G.S. 121, § 39; R.S. 103, § 28.

Former § 3677, relating to examination without notice, was derived from V.S. 1947, § 2265; P.L. § 2212; G.L. § 2401; P.S. § 2123; V.S. § 1767; R.L. § 1518; G.S. 121, § 40; R.S. 103, § 24; 1829, No. 6 ; 1824, p. 9; 1820, p. 23; R. 1797, p. 323, § 12; R. 1787, p. 77.

Former § 3678, relating to examination if creditor does not appear, was derived from V.S. 1947, § 2266; P.L. § 2213; G.L. § 2402; P.S. § 2124; V.S. § 1768; R.L. § 1519; G.S. 121, § 41; R.S. 103, § 26; R. 1797, p. 323, § 12.

Former § 3679, relating to hearing if creditor appears, was derived from V.S. 1947, § 2267; P.L. § 2214; G.L. § 2403; P.S. § 2125; V.S. § 1769; R.L. § 1520; G.S. 121, § 42; R.S. 103, § 25; R. 1797, p. 323, § 12; R. 1787, p. 77.

Former § 3680, relating to costs for creditor, was derived from V.S. 1947, § 2268; P.L. § 2215; G.L. § 2404; P.S. § 2126; V.S. § 1770; R.L. § 1521; G.S. 121, §§ 43, 44; R.S. 103, §§ 30, 31; R. 1797, p. 328, § 17.

Former § 3681, relating to when poor debtor’s oath allowed, was derived from V.S. 1947, § 2269; P.L. § 2216; G.L. § 2405; P.S. § 2127; V.S. § 1771; R.L. § 1522; G.S. 121, § 45; R.S. 103, § 27; 1827, No. 7 ; 1823, p. 11; 1818, p. 81; 1811, p. 27; R. 1797, p. 323, § 12; R. 1787, p. 77.

Former § 3682, relating to discharge of prisoner, was derived from V.S. 1947, § 2270; P.L. § 2217; G.L. § 2406; P.S. § 2128; V.S. § 1772; R.L. § 1523; G.S. 121, § 52; R.S. 103, § 40; R. 1797, p. 323, § 12; R. 1787, p. 77.

Former § 3683, relating to perjury, was derived from V.S. 1947, § 2274; P.L. § 2221; G.L. § 2410; P.S. § 2132; V.S. § 1776; R.L. § 1527; G.S. 121, § 50; R.S. 103, § 38; R. 1797, p. 327, § 14; R. 1787, p. 77.

Former § 3684, relating to tender of property to creditor, was derived from V.S. 1947, § 2271; P.L. § 2218; G.L. § 2407; P.S. § 2129; V.S. § 1773; R.L. § 1524; G.S. 121, § 46; 1845, No. 38 ; R.S. 111, § 12; 1803, p. 90; 1802, p. 189.

Former § 3685, relating to appraisal; acceptance or sale; debtor admitted to oath, was derived from V.S. 1947, § 2271; P.L. § 2218; G.L. § 2407; P.S. § 2129; V.S. § 1773; R.L. § 1524; G.S. 121, § 46; 1845, No. 38 ; R.S. 111, § 12; 1803, p. 90; 1802, p. 189.

Former § 3686, relating to effect of discharge and exemption from arrest, was derived from V.S. 1947, § 2276; P.L. § 2223; G.L. § 2412; P.S. § 2134; V.S. § 1778; R.L. § 1529; G.S. 121, § 53; R.S. 103, § 41; 1806, p. 71; 1803, p. 92; 1802, p. 190.

Former § 3687, relating to judgment to remain in force, was derived from V.S. 1947, § 2277; P.L. § 2224; G.L. § 2413; P.S. § 2135; V.S. § 1779; R.L. § 1530; G.S. 121, § 54; R.S. 103, § 42; 1823, p. 11; R. 1797, p. 326, § 13; R. 1787, p. 77.

Effective date; application. For effective date and application to this section, see note set out under § 2681 of this title.

§ 3688. Repealed. 2005, No. 174 (Adj. Sess.), § 140(2).

History

Former § 3688. Former § 3688, relating to bastardy prosecutions, was derived from V.S. 1947, § 2281; 1947, No. 202 , § 2315; P.L. § 2228; G.L. § 2417; P.S. § 2139; V.S. § 1783; 1886, No. 68 , § 1; R.L. § 1534; 1878, No. 25 ; 1876, No. 10 , § 1 and amended by 1967, No. 147 , § 10; 1973, No. 193 (Adj. Sess.), § 3 and 1999, No. 147 (Adj. Sess.), § 4.

§ 3689. Application for discharge; hearing; oath.

When the petition is granted, after the time fixed by the court or justice, the prisoner may apply to the commissioners of jail delivery in the county for a discharge from imprisonment. After giving notice to the opposite party before such examination, as provided in other cases in this chapter, if they find on examination that such person has not property, except his or her wearing apparel, exceeding $20.00, the commissioners shall administer to him or her the following oath:

“You solemnly swear that you have not estate, real or personal, exceeding $20.00, except your wearing apparel, and that you have not disposed of any of your property for the purpose of defrauding the complainant in the proceedings on which you are committed. So help you God.”

History

Source.

V.S. 1947, § 2282. P.L. § 2229. G.L. § 2418. P.S. § 2140. V.S. § 1784. R.L. § 1535. 1878, No. 25 . 1876, No. 10 , § 1.

CROSS REFERENCES

General form for poor debtor’s oath, see § 6009 of this title.

§ 3690. Effect of discharge.

Upon taking such oath, the prisoner shall be discharged as other persons are discharged upon taking the poor debtor’s oath, and shall thereafter be free from arrest or imprisonment upon an execution issued upon any judgment rendered in such bastardy proceedings or founded thereon. The judgment shall remain in force, and the plaintiff may have execution against his or her property for nonpayment of orders of court, or may sustain an action of contract thereon.

History

Source.

V.S. 1947, § 2283. P.L. § 2230. G.L. § 2419. P.S. § 2141. V.S. § 1785. 1886, No. 68 , § 2. R.L. § 1536. 1876, No. 10 , §§ 2, 3.

References in text.

The reference to “an action of contract” is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

§§ 3691-3693. Repealed. 1979, No. 67, § 9, eff. date, see note set out below.

History

Former §§ 3691-3693. Former § 3691, relating to vacating certificate which prevents admission to poor debtor’s oath or liberties of jail yard; petition, was derived from V.S. 1947, § 2278; P.L. § 2225; G.L. § 2414; P.S. § 2136; 1906, No. 63 , § 33; V.S. § 1780; R.L. § 1531; 1874, No. 73 ; G.S. 121, §§ 55, 57; 1848, No. 46 , § 1; R.S. 103, § 34 and 1830, No. 8 .

Former § 3692, relating to service; hearing and determination, was derived from V.S. 1947, § 2279; 1947, No. 202 , § 2313; P.L. § 2226; G.L. § 2415; P.S. § 2137; 1906, No. 63 , § 33; V.S. § 1781; R.L. § 1532; G.S. 121, §§ 56, 58; 1848, No. 46 , § 2; R.S. 103, § 35 and 1830, No. 8 .

Former § 3693, relating to habeas corpus, was derived from V.S. 1947, § 2280; P.L. § 2227; G.L. § 2416; 1915, No. 1 , § 94; P.S. § 2138; 1906, No. 63 , § 34; V.S. § 1782; R.L. § 1533; G.S. 121, § 59; R.S. 103, § 36 and 1826, No. 3 .

Effective date: application. For effective date and application to this section, see note set out under § 2681 of this title.

Part 8. Extraordinary Writs

Chapter 141. Audita Querela

§§ 3901-3907. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 3901-3907. Former §§ 3901-3907 related to audita querela. These sections are now covered by V.R.C.P. 60(b).

Former § 3901 was derived from V.S. 1947, § 2148; P.L. § 2096; G.L. § 2286; P.S. § 2009; V.S. § 1653; R.L. § 1414; G.S. 42, § 6; 1858, No. 11 ; R.S. 37, § 6; R. 1797, p. 78, § 11.

Former § 3902 was derived from V.S. 1947, § 2149; P.L. § 2097; G.L. § 2287; 1915, No. 1 , § 82; P.S. § 2010; V.S. § 1654; R.L. § 1415; G.S. 42, § 7; R.S. 37, § 7; R. 1797, p. 78, § 11.

Former § 3903 was derived from V.S. 1947, § 2150; P.L. § 2098; G.L. § 2288; 1915, No. 1 , § 83; P.S. § 2011; V.S. § 1655; R.L. § 1416; G.S. 42, § 8; 1847, No. 38 , § 1.

Former § 3904 was derived from V.S. 1947, § 2151; P.L. § 2099; G.L. § 2289; P.S. § 2012; V.S. § 1656; R.L. § 1417; G.S. 42, § 11; R.S. 37, § 9; 1809, p. 40.

Former § 3905 was derived from V.S. 1947, § 2152; P.L. § 2100; G.L. § 2290; 1915, No. 1 , § 84; P.S. § 2013; V.S. § 1657; R.L. § 1418; G.S. 42, § 12; R.S. 37, § 10; 1809, p. 40.

Former § 3906 was derived from V.S. 1947, § 2153; P.L. § 2101; G.L. § 2291; 1915, No. 1 , § 85; P.S. § 2014; V.S. § 1658; 1892, No. 28 , § 15; R.L. § 1419; G.S. 42, §§ 9, 13; 1847, No. 38 , § 2; R.S. 37, § 11; 1809, p. 41.

Former § 3907 was derived from V.S. 1947, § 2154; P.L. § 2102; G.L. § 2292; 1915, No. 1 , § 86; P.S. § 2015; V.S. § 1659; R.L. § 1420; G.S. 42, § 10; R.S. 37, § 8; 1838, No. 2 ; R. 1797, p. 79, § 12.

Chapter 143. Habeas Corpus

§ 3951. Unlawful restraint.

A person shall not be restrained or imprisoned unless by authority of law.

History

Source.

V.S. 1947, § 2076. P.L. § 2024. G.L. § 2214. P.S. § 1937. V.S. § 1582. R.L. § 1343. G.S. 32, § 3. R.S. 27, § 3. R. 1797, p. 71, § 3. R. 1787, p. 32.

ANNOTATIONS

Hearing.

An arresting officer in mesne process in a civil action under section 3573 of this title has the duty to bring the defendant before one of the judges designated in said section 3573 and until he has done so he cannot legally commit the defendant to jail. Thurston v. Leno, 124 Vt. 298, 204 A.2d 106, 1964 Vt. LEXIS 103 (1964).

Cited.

Cited in In re B.M.L., 137 Vt. 396, 406 A.2d 383, 1979 Vt. LEXIS 989 (1979), In re Stewart, 140 Vt. 351, 438 A.2d 1106, 1981 Vt. LEXIS 627 (1981).

§ 3952. Prisoners entitled to writ of habeas corpus.

A person imprisoned in a common jail, or the liberties thereof, or otherwise restrained of his or her liberty by an officer or other person, may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and obtain relief therefrom if it is unlawful.

History

Source.

V.S. 1947, § 2077. P.L. § 2025. G.L. § 2215. P.S. § 1938. V.S. § 1583. R.L. § 1344. G.S. 43, § 1. R.S. 38, § 1. 1825, No. 2 . 1814, p. 135. R. 1797, p. 79, § 14.

ANNOTATIONS

Appeal pending.

Where an appeal to the Supreme Court is pending and no showing is made by the petitioner for a writ of habeas corpus that his rights under the appeal will be unduly delayed or that such appeal will not afford a speedy disposition of his case, there are no exceptional circumstances that would require deviation from normal appellate procedure. In re Rickert, 124 Vt. 232, 203 A.2d 602, 1964 Vt. LEXIS 93 (1964), cert. denied, 379 U.S. 977, 85 S. Ct. 678, 13 L. Ed. 2d 568, 1965 U.S. LEXIS 2140 (1965).

Bail.

The writ of habeas corpus was grantable to admit to bail in civil actions, as when one was confined in jail on a writ running against his body. In re Cazin, 56 Vt. 297, 1883 Vt. LEXIS 112 (1883).

Civil arrest.

Supreme Court had no power to compel jail commissioners to administer poor debtor’s oath, but could only examine and determine, on record before Court, whether petitioner was unlawfully confined in jail. In re Blake, 107 Vt. 18, 175 A. 252, 1934 Vt. LEXIS 137 (1934).

When imprisonment of relator was justified solely by virtue of certified execution issued on judgment against him, burden was on judgment creditor to show on habeas corpus that said judgment was a liability of class not affected by discharge in bankruptcy which was granted relator under United States bankruptcy act. In re Peterson, 77 Vt. 226, 59 A. 828, 1905 Vt. LEXIS 113 (1905).

Where one arrested in an action on contract appeared before authority signing writ and submitted himself to examination upon question whether he was about to abscond or remove from this State, such authority was not obliged to decide that question immediately, but could continue examination to a convenient time at his discretion; and during such continuance officer could commit defendant to county jail upon the process. In re Foote, 31 Vt. 505, 1859 Vt. LEXIS 15 (1859).

Defendant, committed to jail in an action founded on contract under process issued by a justice of the peace upon affidavit of creditor, was not entitled to discharge upon a habeas corpus proceeding because justice failed to examine him as to grounds for the commitment, when he offered himself for such examination. In re Hosley, 22 Vt. 363, 1850 Vt. LEXIS 44 (1850).

When an imprisoned debtor based his claim for discharge upon certain papers or documents prescribed by statute and not upon matter in pais upon which an issue to the jury might be expected to arise, he could enforce his right by writ of habeas corpus. Ex parte Davis, 18 Vt. 401, 1846 Vt. LEXIS 60 (1846).

Habeas corpus extended to persons imprisoned on final civil process. Ex parte Kellogg, 6 Vt. 509, 1834 Vt. LEXIS 83 (1834).

Confinement for violation of probation.

In habeas corpus proceedings brought by respondent committed for breach of probation, judgment of court below that petitioner had violated conditions of his probation could not be reviewed. In re Parker, 107 Vt. 463, 181 A. 106, 1935 Vt. LEXIS 200 (1935).

Extradition.

Petition for writ of habeas corpus is the appropriate vehicle for a challenge to prerequisition detention under 13 V.S.A. § 4955 . Lovejoy v. State, 148 Vt. 239, 531 A.2d 921, 1987 Vt. LEXIS 484 (1987).

Findings.

A court considering a petition for a writ of habeas corpus is necessarily a trier of fact, and in performing its function, must, upon request, make adequate findings of fact. LaRose v. Superintendent, Woodstock Correctional Center, 146 Vt. 22, 497 A.2d 30, 1985 Vt. LEXIS 421 (1985).

Imprisonment for crimes.

A writ of habeas corpus will not issue for release of prisoner from incarceration for convictions of perjury and arson where maximum sentence has been served but where prisoner is presently retained on mittimus for his conviction of another felony. In re Robinson, 125 Vt. 343, 215 A.2d 525, 1965 Vt. LEXIS 252 (1965).

In case of a criminal complaint, writ of habeas corpus was available only to test whether crime was charged, and not whether it was defectively charged. In re Hook, 95 Vt. 497, 115 A. 730, 1922 Vt. LEXIS 160 (1922).

Where habeas corpus issued on complaint that the relator was unlawfully imprisoned after conviction of a crime the question was not whether the complaint on which he was convicted was sufficient as a matter of pleading, but whether it was void in that it described no offense of which the court had jurisdiction. In re Turner, 92 Vt. 210, 102 A. 943, 1918 Vt. LEXIS 157 (1918).

Where sentence and detention under it were void, prisoner was released on habeas corpus. In re Harris, 68 Vt. 243, 35 A. 55, 1896 Vt. LEXIS 78 (1896).

When a person was fined at same time for more than one offense upon different prosecutions, and was committed on a mittimus covering sentences in all the cases, he will be discharged on habeas corpus, unless the mittimus recites each sentence so fully and clearly as to show what it was. In re McLaughlin, 58 Vt. 136, 4 A. 862, 1886 Vt. LEXIS 95 (1886).

Inadequate counsel.

Judgment of conviction on a plea of guilty will not be vitiated in habeas corpus proceeding on claim of inadequate counsel unless the record demonstrates the representation is so rife with shortcomings and of such low caliber as to amount to no representation. In re Murphy, 125 Vt. 272, 214 A.2d 317, 1965 Vt. LEXIS 238 (1965).

Party who insisted he be represented by an attorney he knew he was representing correspondent in related crimes and who voluntarily pleaded guilty to the charges cannot complain of these acts in a later habeas corpus proceeding. In re Shuttle, 125 Vt. 257, 214 A.2d 48, 1965 Vt. LEXIS 235 (1965).

Insane persons.

Where confinement of a dangerously insane person was permanent, due process of law required only that it be in pursuance of judgment of court of competent jurisdiction, after due notice to such person and an adequate opportunity to defend. In re Allen, 82 Vt. 365, 73 A. 1078, 1909 Vt. LEXIS 301 (1909).

A person who had been discharged from insane asylum by supervisors of insane could not be recommitted under a revocation of that discharge by single supervisor, although it was condition of his original release that he might be. In re Thorpe, 64 Vt. 398, 24 A. 991, 1892 Vt. LEXIS 56 (1892).

Irregular proceedings.

If juvenile prisoner was transferred to State’s prison on basis of provision in this section for transfer for evaluation, treatment and rehabilitation, there was nothing to show it, and thus lower court’s dismissal of his petition of habeas corpus without calling for responsive pleading was error. Chaput v. Smith, 129 Vt. 309, 276 A.2d 633, 1971 Vt. LEXIS 262 (1971).

Where county court, upon finding prisoner in contempt of court for failing to make support payments provided for in divorce decree, made new order of payment for support including payments on amount in arrears and provided that upon affidavit of noncompliance with terms of new order mittimus should issue to imprison defendant for term of not less than one year nor more than two years, and mittimus which issued granted no opportunity to prisoner to purge himself of contempt and no opportunity was given prisoner to be present with counsel to be heard on matter of noncompliance with new order, prisoner was entitled to be discharged on writ of habeas corpus. Allen v. Smith, 126 Vt. 546, 237 A.2d 354, 1967 Vt. LEXIS 238 (1967).

If mittimus is valid in form and the sentence imposed is within the jurisdiction of the committing court, habeas corpus is not a remedy with respect to respondent’s allegation that mittimus did not give him credit for jail time while awaiting trial as the sentencing court had intended. In re Norse, 125 Vt. 460, 218 A.2d 456, 1966 Vt. LEXIS 208 (1966).

Writ of habeas corpus will not issue where complaint did not allege any facts indicating that respondent’s commitment to the house of correction was unlawful. In re Pecor, 125 Vt. 462, 218 A.2d 456, 1966 Vt. LEXIS 209 (1966).

If jurisdiction is established by reason of fact that complaint charged the essential substance of a crime, the accused is thereafter bound to raise his objections to the proceedings within the framework of regular criminal procedure unless the defect is unamendable and would oust the trial court of its jurisdiction. In re DeCelle, 125 Vt. 467, 218 A.2d 714, 1966 Vt. LEXIS 212 (1966).

Errors in mittimus do not support a writ of habeas corpus. In re Dobson, 125 Vt. 165, 212 A.2d 620, 1965 Vt. LEXIS 219 (1965).

When a judgment of conviction is collaterally attacked in a habeas corpus petition, the petitioner must clearly establish that due process was denied. In re Shuttle, 125 Vt. 257, 214 A.2d 48, 1965 Vt. LEXIS 235 (1965).

To prevail on habeas corpus, the petitioner must establish a defect of a kind and magnitude sufficient to oust jurisdiction of the court of conviction. In re Mears, 124 Vt. 131, 198 A.2d 27, 1964 Vt. LEXIS 72 (1964).

If party be taken and committed to prison on an execution made returnable within 120 days when by law it ought to have been made returnable in sixty days, after the expiration of sixty days from date of such execution, such commitment is irregular and prisoner will be discharged on habeas corpus. Ex parte Hatch, 2 Aik. 28 (Vt. Feb. 1, 1827).

Juveniles.

Superior Court had jurisdiction of writ of habeas corpus filed by mother requesting release of juvenile from detention pursuant to order under law relating to juveniles in need of care or supervision, and erroneously ruled it lacked jurisdiction on ground that proper avenue for review of the order was by appeal to Supreme Court, for both at time of the habeas corpus petition and the time of the hearing thereon, the juvenile was being restrained without any final adjudication of the juvenile petition. In re B.M.L., 137 Vt. 396, 406 A.2d 383, 1979 Vt. LEXIS 989 (1979).

Number of applications.

The constitution of Vermont makes the writ of habeas corpus a writ issuable of right, but there is no statute regulating successive applications for the writ. In re Rickert, 124 Vt. 232, 203 A.2d 602, 1964 Vt. LEXIS 93 (1964), cert. denied, 379 U.S. 977, 85 S. Ct. 678, 13 L. Ed. 2d 568, 1965 U.S. LEXIS 2140 (1965).

Other remedy.

Whether to permit habeas corpus review when defendant fails to avail himself of alternative avenues of review requires balance of liberty interests of inmates against State’s interest in maintaining integrity of judicial process. Shuttle v. Patrissi, 158 Vt. 127, 605 A.2d 845, 1992 Vt. LEXIS 22 (1992).

Writ of habeas corpus does not generally provide a substitute for appellate review. Shuttle v. Patrissi, 158 Vt. 127, 605 A.2d 845, 1992 Vt. LEXIS 22 (1992).

Habeas corpus review is unavailable where an inmate intentionally avoids administrative review under procedural rule, either entirely or relative to an individual issue, to gain habeas corpus review. Shuttle v. Patrissi, 158 Vt. 127, 605 A.2d 845, 1992 Vt. LEXIS 22 (1992).

Where prisoner who sought release under this general habeas corpus statute should have proceeded under special form of habeas corpus denominated post-conviction relief, and all substantive requirements of post-conviction relief statute had been met, court would treat petition as properly brought, in interests of justice and consistent with the remedial intent of the post-conviction relief statute. Sherwin v. Hogan, 136 Vt. 606, 401 A.2d 895, 1979 Vt. LEXIS 910 (1979).

Before seeking habeas corpus, which lies in the county of imprisonment, one under a conviction must bring a petition for post-conviction relief before the court in which conviction was had, and before a judge other than the sentencing judge; but where, prior to a petition for post-conviction relief, prisoner brought habeas corpus petition, court would, in interests of justice and since the requisites for one existed, treat it as a petition for post-conviction relief. Berard v. Moeykens, 132 Vt. 597, 326 A.2d 166, 1974 Vt. LEXIS 400 (1974).

Minor prisoner’s challenge to his mother’s mental competency to represent him at trial as guardian ad litem and enter guilty plea to second degree murder was a collateral attack on prisoner’s sentence, and remedy was post-conviction relief under 13 V.S.A. §§ 7131-7137 , which provided an adequate and effective test of legality of detention, and prisoner was not entitled to habeas corpus where he had not sought post-conviction relief. Shequin v. Smith, 129 Vt. 578, 285 A.2d 708, 1971 Vt. LEXIS 307 (1971).

A writ of habeas corpus is not a substitute for an appeal. In re Dobson, 125 Vt. 165, 212 A.2d 620, 1965 Vt. LEXIS 219 (1965).

Writ of habeas corpus does not replace regular proceeding in error, but lies to question committing court’s jurisdiction of person and subject matter, or its authority to render the kind of judgment or order it made. In re Dobson, 125 Vt. 165, 212 A.2d 620, 1965 Vt. LEXIS 219 (1965).

Habeas corpus is not the remedy if a plea of guilty is unfairly obtained through ignorance, fear or misunderstanding. In re Garceau, 125 Vt. 185, 212 A.2d 633, 1965 Vt. LEXIS 222 (1965).

Prison disciplinary measures.

Superior Court has jurisdictions to review prison disciplinary measures under habeas corpus statute. Shuttle v. Patrissi, 158 Vt. 127, 605 A.2d 845, 1992 Vt. LEXIS 22 (1992).

Where administrative review under procedural rule is unavailable and there is no evidence of a deliberate relinquishment of rights under the rule, habeas corpus review provides an alternative means of protecting liberty interests of an inmate whose incarceration is prolonged as a result of prison disciplinary measures. Shuttle v. Patrissi, 158 Vt. 127, 605 A.2d 845, 1992 Vt. LEXIS 22 (1992).

Superior Court properly exercised habeas corpus jurisdiction despite inmate defendant’s failure to properly pursue administrative review under procedural rule, where court looked at substance of appeal, not label, in changing action into habeas petition, record showed no strategy to deliberately delay filing under rule to gain advantage, defendant did not benefit from failure to properly invoke rule, and application of habeas statute was appropriate considering minimal due process safeguards found in prison disciplinary system. Shuttle v. Patrissi, 158 Vt. 127, 605 A.2d 845, 1992 Vt. LEXIS 22 (1992).

Court reviewing habeas petition properly ordered that defendant’s conviction for violating corrections rule be expunged, since defendant’s conduct, using alcohol while on furlough, did not fall within proscription of rule. Shuttle v. Patrissi, 158 Vt. 127, 605 A.2d 845, 1992 Vt. LEXIS 22 (1992).

Privilege from arrest.

Debtor, released from prison upon habeas corpus predicated upon his being privileged from arrest by his attendance on court at the time, could be afterwards arrested upon a new execution upon same judgment. State v. Wright, 2 Vt. 462, 1830 Vt. LEXIS 16 (1830); Booraem & Co. v. Wheeler, 12 Vt. 311, 1840 Vt. LEXIS 51 (1840).

Purpose.

Habeas corpus proceedings are intended to be a quick and summary procedure for relief from illegal imprisonment unimpeded by appeal and review by the State. In re Fitts, 124 Vt. 146, 197 A.2d 808, 1964 Vt. LEXIS 73 (1964).

Right to immediate release.

A prisoner has no right to relief under a writ of habeas corpus unless he is entitled to immediate release and the writ will not issue unless he is presently restrained of his liberty without warrant of law. In re Bryant, 129 Vt. 302, 276 A.2d 628, 1971 Vt. LEXIS 260 (1971).

Scope of writ generally.

Labeling of desired relief in writ of habeas corpus is less important than its substance. Shuttle v. Patrissi, 158 Vt. 127, 605 A.2d 845, 1992 Vt. LEXIS 22 (1992).

Scope of review under habeas corpus is broad and not limited to jurisdictional defects; reviewing court is necessarily trier of facts and must determine whether imprisonment is unlawful. Shuttle v. Patrissi, 158 Vt. 127, 605 A.2d 845, 1992 Vt. LEXIS 22 (1992).

A petition for a writ of habeas corpus is not a device to provide appellate review; it is essentially a civil proceeding brought to test the legality of restraints on the person. LaRose v. Superintendent, Woodstock Correctional Center, 146 Vt. 22, 497 A.2d 30, 1985 Vt. LEXIS 421 (1985).

Habeas corpus is not a proceeding for examining into the guilt or innocence of the petitioner. Magoon v. Smith, Warden, 130 Vt. 603, 298 A.2d 820, 1972 Vt. LEXIS 322 (1972).

The question of sufficiency of evidence to sustain a conviction, as well as like grounds appropriate to an appeal, are not grounds for the issuance of a writ of habeas corpus. Magoon v. Smith, Warden, 130 Vt. 603, 298 A.2d 820, 1972 Vt. LEXIS 322 (1972).

While a legislature may regulate the procedure with respect to habeas corpus and, to some extent, the purposes for which it is used, the right to the writ may not be abrogated or the writ’s efficiency curtailed. Shequin v. Smith, 129 Vt. 578, 285 A.2d 708, 1971 Vt. LEXIS 307 (1971).

Habeas corpus is available to review the jurisdiction of the District Court. Woodmansee v. Smith, 129 Vt. 284, 276 A.2d 617, 1971 Vt. LEXIS 257 (1971).

A court, in a habeas corpus proceeding to release one arrested as a fugitive from justice, may inquire into whether petitioner is validly restrained under applicable constitutional and statutory provisions. Russell v. Smith, 127 Vt. 225, 245 A.2d 563, 1968 Vt. LEXIS 211 (1968).

Habeas corpus petitioner, held on warrant issued by governor of asylum state, was entitled to have issue of fact as to whether he was a fugitive from justice of demanding state judicially tried and determined. Russell v. Smith, 127 Vt. 225, 245 A.2d 563, 1968 Vt. LEXIS 211 (1968).

A court, in a habeas corpus proceeding to release one arrested as a fugitive from justice, may inquire into whether person held in custody is one charged in warrant or in requisition papers, and into whether requisition papers have been withdrawn. Russell v. Smith, 127 Vt. 225, 245 A.2d 563, 1968 Vt. LEXIS 211 (1968).

In a habeas corpus proceeding to release one arrested as a fugitive from justice, the guilt or innocence of the accused may not be inquired into except to extent that it is material in identifying person held as person charged with crime. Russell v. Smith, 127 Vt. 225, 245 A.2d 563, 1968 Vt. LEXIS 211 (1968).

If the complaint charges the essential substance of a crime within the trial court’s jurisdiction, the sufficiency of the facts alleged in such complaint to constitute the offense will not be inquired into a habeas corpus proceeding. In re DeCelle, 125 Vt. 467, 218 A.2d 714, 1966 Vt. LEXIS 212 (1966).

Writ of habeas corpus may be available under some circumstances where trial court has denied respondent’s motion to change plea from guilty to not guilty. In re Newton, 125 Vt. 453, 218 A.2d 394, 1966 Vt. LEXIS 207 (1966).

Habeas corpus proceeding challenges jurisdiction of the sentencing court over the person and crime charged and its authority to render the judgment or order the confinement at issue and may include questions involving constitutionally fundamental rights, the violation of which likewise affect jurisdiction. In re Norse, 125 Vt. 460, 218 A.2d 456, 1966 Vt. LEXIS 208 (1966).

Matters appropriate to an appeal, such as admissibility and sufficiency of evidence, credibility of witnesses, perjured testimony, prejudicial statements during trial, disagreements with counsel concerning presentation of evidence, improper administration of oath to a minor, and errors in charge to the jury, even if proved, are not grounds for issuance of writ of habeas corpus. In re Norse, 125 Vt. 460, 218 A.2d 456, 1966 Vt. LEXIS 208 (1966).

Habeas corpus is not a proceeding for examining into guilt or innocence. In re Norse, 125 Vt. 460, 218 A.2d 456, 1966 Vt. LEXIS 208 (1966).

State police officer’s visit to accused without permission of accused’s attorney, while accused was in state hospital for observation following plea of not guilty by reason of insanity to two charges of incest, will not entitle accused to writ of habeas corpus for relief from confinement following plea of guilty to charge of statutory rape. In re Robinson, 125 Vt. 343, 215 A.2d 525, 1965 Vt. LEXIS 252 (1965).

Writ of habeas corpus will not issue in a moot case. In re Robinson, 125 Vt. 343, 215 A.2d 525, 1965 Vt. LEXIS 252 (1965).

Contentions that victim was referred to during trial by incorrect name and that respondent was guilty only of lesser crime were not subject to review by habeas corpus since habeas corpus is only available to review the court’s jurisdiction and questions involving fundamental rights that affect jurisdiction. In re Murphy, 125 Vt. 272, 214 A.2d 317, 1965 Vt. LEXIS 238 (1965).

The writ of habeas corpus can reach behind prison walls and iron bars, but it is not a static, narrow, formalistic remedy; its scope also includes the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty. In re Huard, 125 Vt. 189, 212 A.2d 640, 1965 Vt. LEXIS 223 (1965).

Where, by consent to a judgment, an appeal is waived, the writ of habeas corpus ought not to give a review since it has been voluntarily foregone, or should it give more rights under a plea of guilty than are available under the writ after a full-dress trial and appellate review. In re Dobson, 125 Vt. 165, 212 A.2d 620, 1965 Vt. LEXIS 219 (1965).

Writ of habeas corpus is not to be given effect as an appeal to correct errors and irregularities in the trial procedure. In re Rickert, 124 Vt. 232, 203 A.2d 602, 1964 Vt. LEXIS 93 (1964), cert. denied, 379 U.S. 977, 85 S. Ct. 678, 13 L. Ed. 2d 568, 1965 U.S. LEXIS 2140 (1965).

Habeas corpus is not a device to provide an additional appellate review of criminal proceedings, but is essentially a civil proceeding brought to test the legality of restraints on the person whether imposed by courts of chancery, domestic relations, civil or criminal jurisdiction. In re Mears, 124 Vt. 131, 198 A.2d 27, 1964 Vt. LEXIS 72 (1964).

A petition for writ of habeas corpus is to be distinguished from a proceeding reviewing for errors in the trial. In re Mears, 124 Vt. 131, 198 A.2d 27, 1964 Vt. LEXIS 72 (1964).

It is not purpose of habeas corpus proceeding to determine guilt or innocence of a respondent, nor to pass upon errors in his trial, and unless there was no jurisdiction in court, judgment is not void and he cannot attack it collaterally by habeas corpus. In re Moses, 122 Vt. 36, 163 A.2d 868, 1960 Vt. LEXIS 97 (1960).

A writ of habeas corpus cannot be given effect of a writ for correction of errors and irregularities. In re Moses, 122 Vt. 36, 163 A.2d 868, 1960 Vt. LEXIS 97 (1960).

A writ of habeas corpus will be withstood if court whose action is assailed has jurisdiction of subject matter and person, and renders such judgment or makes such an order as it is authorized to render or make. In re Moses, 122 Vt. 36, 163 A.2d 868, 1960 Vt. LEXIS 97 (1960).

A writ of habeas corpus cannot be given the effect of a writ for the correction of errors and irregularities; proceedings under review, however irregular they may have been, will withstand the writ if the court whose action is assailed has jurisdiction of the subject matter and the person, and renders such a judgment or makes such an order as it is authorized to render or make in that class of cases. In re Greenough, 116 Vt. 277, 75 A.2d 569, 1950 Vt. LEXIS 147 (1950); In re Parker, 107 Vt. 463, 181 A. 106, 1935 Vt. LEXIS 200 (1935); In re Thompson, 111 Vt. 7, 9 A.2d 107, 1939 Vt. LEXIS 119 (1939); In re Hook, 95 Vt. 497, 115 A. 730, 1922 Vt. LEXIS 160 (1922); Ex parte Kellogg, 6 Vt. 509, 1834 Vt. LEXIS 83 (1834).

Writ of habeas corpus challenged only jurisdiction of court imposing judgment, but inquiry was not confined to jurisdiction over subject matter and person involved, but extended to jurisdiction to render particular judgment in question. In re Parker, 107 Vt. 463, 181 A. 106, 1935 Vt. LEXIS 200 (1935).

While writ was not in nature of and could not be used as substitute for bill of exceptions or writ of error, it afforded appropriate means of attacking jurisdiction of court, not only over person or subject matter, but its jurisdiction to make very order or render particular judgment called in question. State v. Dewar, 102 Vt. 340, 148 A. 489, 1930 Vt. LEXIS 126 (1930).

A person will not be released because of a defective mittimus, but will be remanded that a new one may issue. In re Rogers, 75 Vt. 329, 55 A. 661, 1903 Vt. LEXIS 136 (1903).

Habeas corpus does not lie for the mere correction of error and in general one confined upon sentence following conviction will not be released upon that writ unless sentence is void. In re Fitton, 68 Vt. 297, 35 A. 319, 1896 Vt. LEXIS 83 (1896).

Mere matter of error or that which would be a good ground for a new trial is not sufficient for discharging a respondent on habeas corpus. In re Dougherty, 27 Vt. 325, 1855 Vt. LEXIS 39 (1855).

To justify discharge on habeas corpus for any irregularity accruing before judgment, it should ordinarily be of a character to render the judgment void. Ex parte Tracy, 25 Vt. 93, 1853 Vt. LEXIS 7 (1853).

The lawfulness of arrest and detention in this state is unaffected by the character of the means employed to bring the relator within the reach of process of this state. In re Miles, 52 Vt. 609, 1880 Vt. LEXIS 191 (1880).

Cited.

Cited in In re Stewart, 140 Vt. 351, 438 A.2d 1106, 1981 Vt. LEXIS 627 (1981).

§ 3953. Authority to grant writ; complaint.

Such writ may be granted by a Superior judge, or by Superior Court during its sitting, in the county where such person is imprisoned, on application by complaint in writing signed by the party for whose relief it is intended or by some person in his or her behalf, stating the person by whom and the place where the party is imprisoned or restrained, naming the prisoner and the person detaining him or her, if their names are known, and describing them, if they are not known, and stating also the cause or pretense of such imprisonment or restraint, according to the knowledge and belief of the person applying. The petitioner or the State may appeal from the decision on the petition to the Supreme Court under chapter 102 of this title.

HISTORY: Amended 1966, No. 41 (Sp. Sess.), § 4, eff. March 12, 1966; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2078. P.L. § 2026. G.L. § 2216. P.S. § 1939. 1906, No. 63 , § 34. V.S. § 1584. R.L. § 1345. G.S. 43, § 2. R.S. 38, § 2. 1814, p. 135. R. 1797, p. 79, § 14.

Revision note—

Reference to “sections 2381-2390 of this title” was changed to “chapter 102 of this title” to conform reference to certain repeals within the sections formerly mentioned.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1966. Deleted provision that the writ may be granted by the Supreme Court during its sitting, or by a justice thereof during vacation; and added last sentence relating to appeal by prisoner or by the state.

1966, No. 41 , § 6, provided: “If any provision of this act [adding this section and §§ 7132-7137 of this title and amending §§ 3953, 3957 of Title 12] is held invalid, the invalidity does not affect other provisions which can be given effect without the invalid provision, and to this end provisions of this act are severable.”

CROSS REFERENCES

Writ denied unless applicant has moved for other relief, see 13 V.S.A. § 7136 .

ANNOTATIONS

Issuance during court vacation.

Writ of habeas corpus could not be issued by clerk of county or Supreme Court during vacation; and when issued in vacation it must be returnable forthwith, and not to future term of court. In re Cooper, 32 Vt. 258 (1859), same case 32 Vt. 253.

Jurisdiction.

Petition for writ of habeas corpus brought by prisoner seeking release from confinement under sentence imposed upon conviction of violation of probation fell within ambit of post-conviction relief statutes and jurisdiction in the first instance was in a Superior judge or county court, not the Supreme Court, in which relief could be had only by right of appeal. In re Shuttle, 127 Vt. 602, 256 A.2d 28, 1969 Vt. LEXIS 286 (1969).

Persons qualified to apply.

This chapter, giving person imprisoned or otherwise restrained of his liberty the right to prosecute a writ of habeas corpus did not apply to unmarried parents’ habeas corpus action for return of baby mother had relinquished custody of; action was governed by common law, so that this section’s provision that petitioner or the State could appeal did not apply to bar appeal by child placing agency and parents seeking adoption. In re M. and G., 132 Vt. 410, 321 A.2d 19, 1974 Vt. LEXIS 360 (1974).

Sister of person unlawfully restrained was proper party to apply for writ under this section. In re Cornell, 111 Vt. 525, 18 A.2d 304, 1941 Vt. LEXIS 186 (1941), 56 Yale L.J. 1196 (1941).

Petition for writ.

Petition for writ of habeas corpus should show place of imprisonment, persons who exercise the restraint, naming them, if known, or describing them if they are not known. In re Rickert, 124 Vt. 232, 203 A.2d 602, 1964 Vt. LEXIS 93 (1964), cert. denied, 379 U.S. 977, 85 S. Ct. 678, 13 L. Ed. 2d 568, 1965 U.S. LEXIS 2140 (1965).

Petition for writ of habeas corpus should not be held to strict practice and procedure. In re Rickert, 124 Vt. 232, 203 A.2d 602, 1964 Vt. LEXIS 93 (1964), cert. denied, 379 U.S. 977, 85 S. Ct. 678, 13 L. Ed. 2d 568, 1965 U.S. LEXIS 2140 (1965).

Petition for writ of habeas corpus should include a statement of specific facts sufficient to make a prima facie case for relief and a general allegation that petitioner is imprisoned and restrained without due process of law is insufficient. In re Rickert, 124 Vt. 232, 203 A.2d 602, 1964 Vt. LEXIS 93 (1964), cert. denied, 379 U.S. 977, 85 S. Ct. 678, 13 L. Ed. 2d 568, 1965 U.S. LEXIS 2140 (1965).

Cited.

Cited in In re B.M.L., 137 Vt. 396, 406 A.2d 383, 1979 Vt. LEXIS 989 (1979).

§ 3954. Copy of process annexed to complaint.

When the imprisonment or restraint is by virtue of a warrant or other process, a copy thereof shall be annexed to the complaint, or it shall appear that copy thereof has been demanded and refused, or that for sufficient reason a demand of such copy could not be made.

History

Source.

V.S. 1947, § 2079. P.L. § 2027. G.L. § 2217. P.S. § 1940. V.S. § 1585. R.L. § 1346. G.S. 43, § 2. R.S. 38, § 2. 1814, p. 135.

ANNOTATIONS

Cited.

Cited in Unnamed Prisoners v. Maranville, 154 Vt. 279, 576 A.2d 132, 1990 Vt. LEXIS 73 (1990).

§ 3955. Complaint to be sworn to.

The facts set forth in the complaint shall be verified by the oath of the person making the application or by that of some credible witness. Such oath may be administered by the court or magistrate to whom the application is made, or a Superior judge.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 249 (Adj. Sess.), § 27, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2080. P.L. § 2028. G.L. § 2218. 1915, No. 1 , § 70. P.S. § 1941. V.S. § 1586. R.L. § 1347. G.S. 43, § 2. R.S. 38, § 2. 1814, p. 135.

Revision note

—2017. Substituted “Superior” for “District” pursuant to 2009, No. 154 (Adj. Sess.), § 236.

Amendments

—1973 (Adj. Sess.). Omitted reference to justice of the peace.

—1965. Substituted “district” for “municipal” judge.

ANNOTATIONS

Cited.

Cited in Unnamed Prisoners v. Maranville, 154 Vt. 279, 576 A.2d 132, 1990 Vt. LEXIS 73 (1990).

§ 3956. Issue and return of writ.

Without delay, such court or magistrate shall award and issue a writ of habeas corpus, which shall be made returnable forthwith.

History

Source.

V.S. 1947, § 2081. P.L. § 2029. G.L. § 2219. 1915, No. 1 , § 71. P.S. § 1942. V.S. § 1587. R.L. § 1348. G.S. 43, § 3. R.S. 38, § 3. 1814, p. 136.

CROSS REFERENCES

Form for writ of habeas corpus, see § 5913 of this title.

ANNOTATIONS

Forthwith.

Writ was not void because made returnable on first secular day after its issue, that being forthwith within the meaning of this section. State v. Ferry, 61 Vt. 624, 18 A. 451, 1889 Vt. LEXIS 98 (1889).

§ 3957. Signing of writ.

When the writ is issued by the Superior Court, it shall be signed by the clerk, otherwise by the magistrate issuing the same.

HISTORY: Amended 1966, No. 41 (Sp. Sess.), § 5, eff. March 12, 1966; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2082. P.L. § 2030. G.L. § 2220. 1915, No. 1 , § 72. P.S. § 1943. V.S. § 1588. R.L. § 1349. G.S. 43, § 5. R.S. 38, § 5. 1814, p. 136.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1966. Deleted reference to Supreme Court.

1966, No. 41 , § 6, provided: “If any provision of this act [adding this section and §§ 7132-7137 of this title and amending §§ 3953, 3957 of Title 12] is held invalid, the invalidity does not affect other provisions which can be given effect without the invalid provision, and to this end provisions of this act are severable.”

CROSS REFERENCES

Writ denied unless applicant has moved for other relief, see 13 V.S.A. § 7136 .

§ 3958. Return after court adjourns; procedure.

When the court to which the writ is returnable adjourns before it is returned, the return shall be made before one of the Justices of the Supreme Court. If the writ is in any case returned before one Justice or judge when the court is in session, he or she may adjourn the case into the court, to be there heard and determined as if the writ had been returned into the same court.

History

Source.

V.S. 1947, § 2083. P.L. § 2031. P.L. § 2221. P.S. § 1944. V.S. § 1589. R.L. § 1350. G.S. 43, § 6. R.S. 38, § 6. 1814, pp. 136, 137.

§ 3959. Designation of person to be served.

The person having the custody of the prisoner may be designated by his or her official title, if he or she has any, or by his or her name. If such title or name is unknown or uncertain, he or she may be described by an assumed appellation. Any one upon whom the writ is served shall be deemed the person intended thereby.

History

Source.

V.S. 1947, § 2084. P.L. § 2032. G.L. § 2222. P.S. § 1945. V.S. § 1590. R.L. § 1351. G.S. 43, § 7. R.S. 38, § 7. 1814, p. 136.

ANNOTATIONS

Contents of petition.

Petition for writ of habeas corpus should show place of imprisonment, persons who exercised the restraint, naming them, if known, or describing them if they are not known. In re Rickert, 124 Vt. 232, 203 A.2d 602, 1964 Vt. LEXIS 93 (1964), cert. denied, 379 U.S. 977, 85 S. Ct. 678, 13 L. Ed. 2d 568, 1965 U.S. LEXIS 2140 (1965).

Designation of custodian.

Jurat by magistrate issuing the writ of habeas corpus which referred to the warden of the Vermont State prison by name was sufficient to show who was restraining the petitioner. In re Rickert, 124 Vt. 232, 203 A.2d 602, 1964 Vt. LEXIS 93 (1964), cert. denied, 379 U.S. 977, 85 S. Ct. 678, 13 L. Ed. 2d 568, 1965 U.S. LEXIS 2140 (1965).

§ 3960. Designation of prisoner.

The prisoner to be produced shall be designated by his or her name, if known, and if that is unknown or uncertain, he or she may be otherwise described so as to make known who is intended.

History

Source.

V.S. 1947, § 2085. P.L. § 2033. G.L. § 2223. P.S. § 1946. V.S. § 1591. R.L. § 1352. G.S. 43, § 8. R.S. 38, § 8.

ANNOTATIONS

Cited.

Cited in Unnamed Prisoners v. Maranville, 154 Vt. 279, 576 A.2d 132, 1990 Vt. LEXIS 73 (1990).

§ 3961. Pay for transporting prisoner.

When the prisoner is confined in a common jail, or in the custody of a civil officer, the court or magistrate issuing the writ shall certify thereon the sum to be paid for bringing him or her from the place of imprisonment. The officer to whom the writ is directed shall not be bound to obey it, unless such sum is paid or tendered to him or her.

History

Source.

V.S. 1947, § 2086. P.L. § 2034. G.L. § 2224. P.S. § 1947. V.S. § 1592. R.L. § 1353. G.S. 43, § 9. R.S. 38, § 9. 1814, p. 136.

§ 3962. When a person to be served is not an officer.

In cases of imprisonment by a person not an officer of the State or of the courts of the United States, the writ shall be directed to a sheriff or his or her deputy, commanding him or her to take and have the person imprisoned before the court or magistrate granting the writ, immediately after the receipt thereof, and summon the person by whom such prisoner is restrained to appear before such court or magistrate and show the cause for taking and detaining such prisoner.

History

Source.

V.S. 1947, § 2087. P.L. § 2035. G.L. § 2225. P.S. § 1948. V.S. § 1593. R.L. § 1354. G.S. 43, § 4. R.S. 38, § 4.

§ 3963. Receipt and return of writ; notice to State’s Attorney or Attorney General.

A person to whom the writ is directed shall receive the same and, upon payment or tender of the charges demandable for its execution, shall make return thereof forthwith. In case a person is restrained of his or her liberty by reason of a court sentence to a penal institution the judge may, in his or her discretion, order such other or further notice be given to the State’s Attorney of the county in which the prisoner was convicted or to the Attorney General as he or she deems reasonable.

History

Source.

1957, No. 188 . V.S. 1947, § 2088. P.L. § 2036. G.L. § 2226. P.S. § 1949. V.S. § 1594. R.L. § 1355. G.S. 43, § 10. R.S. 38, § 10. 1814, p. 138.

CROSS REFERENCES

Notice to State’s Attorney where prisoner charged with crime, see § 3970 of this title.

§ 3964. Return of statement as to custody and authority.

In cases other than those provided for in section 3962 of this title, the person who makes the return shall state therein, and, in the cases provided for in such section, the person in whose custody the prisoner is found shall state, in writing, to such court or magistrate, plainly and unequivocally, whether he or she has or has not the prisoner in his or her custody or power or under restraint. If he or she has him or her in his or her custody or power or under restraint, he or she shall set forth at large the authority and the true and whole cause of such imprisonment or restraint, with a copy of the writ, warrant, or other process, if any, upon which he or she is detained. If he or she has had him or her in his or her custody or power or under restraint and has transferred such custody or restraint to another, he or she shall state particularly to whom, at what time, for what cause and by what authority such transfer was made.

History

Source.

V.S. 1947, § 2089. P.L. § 2037. G.L. § 2227. P.S. § 1950. V.S. § 1595. R.L. § 1356. G.S. 43, § 11. R.S. 38, § 11. 1814, p. 137.

§ 3965. Return to be signed and sworn to; exception.

The return or statement shall be signed by the person making it, and shall be sworn to by him or her unless he or she is a sworn public officer and makes the return in his or her official capacity.

History

Source.

V.S. 1947, § 2090. P.L. § 2038. G.L. § 2228. P.S. § 1951. V.S. § 1596. R.L. § 1357. G.S. 43, § 12. R.S. 38, § 12.

§ 3966. Prisoner brought unless sick.

The person who makes the return or statement, at the same time, shall bring the prisoner, if in his or her custody or power or under his or her restraint, according to the command of the writ, unless prevented by the sickness or infirmity of such prisoner.

History

Source.

V.S. 1947, § 2091. P.L. § 2039. G.L. § 2229. P.S. § 1952. V.S. § 1597. R.L. § 1358. G.S. 43, § 13. R.S. 38, § 13.

ANNOTATIONS

Affidavit of physician.

It was a sufficient return to writ directed to a sheriff as chief keeper of the jail to bring his prisoner into court, “that the prisoner is sick and languishing, and cannot be removed without endangering his life,” but such return must in future be accompanied with affidavits of visiting physicians. Ex parte Bryant, 2 Tyl. 269 (Vt. 1803).

§ 3967. Examination in case of sick prisoner.

When the prisoner cannot be brought to the place appointed for the return of the writ, without danger, because of his or her sickness or infirmity, that fact shall be stated in the return. When such fact is provided to the satisfaction of such court or magistrate, he or she may proceed to the jail or other place where the prisoner is confined and there make an examination or adjourn the hearing to another time or make such order in the case as law and justice require.

History

Source.

V.S. 1947, § 2092. P.L. § 2040. G.L. § 2230. P.S. § 1953. V.S. § 1598. R.L. § 1359. G.S. 43, § 14. R.S. 38, § 14.

§ 3968. Examination; time; adjournment.

When the writ is returned, such court or magistrate, without delay, shall examine the causes of imprisonment or restraint; but the examination may be adjourned from time to time.

History

Source.

V.S. 1947, § 2093. P.L. § 2041. G.L. § 2231. 1915, No. 1 , § 73. P.S. § 1954. V.S. § 1599. R.L. § 1360. G.S. 43, § 15. R.S. 38, § 15. 1814, p. 137.

§ 3969. Notice of examination.

When it appears that the prisoner is detained on a process under which another person has an interest in continuing his or her imprisonment or restraint, he or she shall not be discharged until sufficient notice has been given to such other person, or his or her attorney, if within the State, to appear and object to such discharge.

History

Source.

V.S. 1947, § 2094. P.L. § 2042. G.L. § 2232. P.S. § 1955. V.S. § 1600. R.L. § 1361. G.S. 43, § 16. R.S. 38, § 16.

§ 3970. Prisoner charged with crime, notice to State’s Attorney.

When it appears that the prisoner is imprisoned on a criminal accusation, he or she shall not be discharged until sufficient notice is given to the State’s Attorney, whose duty it is to prosecute for such offense, to appear and object to such discharge.

History

Source.

V.S. 1947, § 2095. P.L. § 2043. G.L. § 2233. P.S. § 1956. V.S. § 1601. R.L. § 1362. G.S. 43, § 17. R.S. 38, § 17.

CROSS REFERENCES

Notice to State’s Attorney or Attorney General where prisoner is under court sentence to a penal institution, see § 3963 of this title.

§ 3971. Pleading; hearing.

The prisoner may deny any of the facts set forth in the return or statement and may allege other material facts. Such court or magistrate may examine the causes of the imprisonment or restraint in a summary manner and hear the evidence produced by any person interested or authorized to appear, in support of or against such imprisonment or restraint.

History

Source.

V.S. 1947, § 2096. P.L. § 2044. G.L. § 2234. 1915, No. 1 , § 74. P.S. § 1957. V.S. § 1602. R.L. § 1363. G.S. 43, § 18. R.S. 38, § 18.

ANNOTATIONS

Findings by commissioner.

Where no cause was shown to the contrary, facts found by commissioner in hearing held with respect to habeas corpus petition are conclusive. In re Garceau, 125 Vt. 185, 212 A.2d 633, 1965 Vt. LEXIS 222 (1965).

Scope of trial.

In a habeas corpus hearing rights of relator are not dependent upon officer’s return; but under this section he may deny return, and allege other material facts; thus, where return showed that justice found that relator “had been intoxicated, and had disturbed the public peace,” Supreme Court could find from facts alleged in relator’s complaint that he was not intoxicated. In re Hardigan, 57 Vt. 100, 1884 Vt. LEXIS 4 (1884).

Upon habeas corpus, relator may controvert return of cause of his detention, and also prove any other facts deemed material to determination of case; but the court will not re-examine the proceedings of magistrate. In re Powers, 25 Vt. 261, 1853 Vt. LEXIS 37 (1853).

§ 3972. Discharge; decision and record.

When legal cause is not shown for the imprisonment or restraint, such court or magistrate shall discharge the person therefrom. The petition for a writ of habeas corpus heard by a court or magistrate, together with the decision thereon in writing, shall be returned for record to the office of the county clerk of the county in which the person is alleged to be restrained or confined, or, if restrained upon process issuing from a court, into the clerk’s office in the county where such court is held. Such proceedings shall be docketed and properly indexed, and the same, together with the decision thereon, recorded in the same manner as other judgments of such court.

History

Source.

V.S. 1947, § 2097. P.L. § 2045. G.L. § 2235. 1915, No. 1 , § 75. 1910, No. 87 . P.S. § 1958. V.S. § 1603. R.L. § 1364. G.S. 43, § 19. R.S. 38, § 19. 1814, p. 138.

ANNOTATIONS

Generally.

It must be assumed that the courts, in considering material and substantial questions of law and fact and personal liberties involved in habeas corpus proceedings, will do so with the same fair, conscientious and impartial sense of justice as expected in other litigious matters. In re Fitts, 124 Vt. 146, 197 A.2d 808, 1964 Vt. LEXIS 73 (1964).

Appeals.

The state may not appeal from an order of discharge on a petition for writ of habeas corpus. In re Fitts, 124 Vt. 146, 197 A.2d 808, 1964 Vt. LEXIS 73 (1964).

Exceptions to discharge of prisoner.

When prisoner was discharged on habeas corpus from custody of an officer holding him in arrest under warrant issued by justice of peace, such officer was not entitled to exceptions; and if exceptions were allowed, they would be dismissed on motion in Supreme Court. In re Barker, 56 Vt. 1 (1884), same case 56 Vt. 14, 10 A.L.R. 386, 397.

§ 3973. Bail.

When the prisoner is detained for a bailable cause or offense, such court or magistrate shall admit him or her to bail, if a sufficient amount thereof is offered, and if not, shall remand him or her with an order fixing the sum in which he or she shall be held to bail, and the court at which he or she shall be required to appear. A judge of the Superior Court in the county where such prisoner is confined may admit him or her to bail pursuant to such order before the sitting of such court.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2098. P.L. § 2046. G.L. § 2236. 1915, No. 1 , § 76. P.S. § 1959. V.S. § 1604. R.L. § 1365. G.S. 43, § 20. R.S. 38, § 20. 1814, p. 137.

Amendments

—1973 (Adj. Sess.). Substituted “Superior” for “County” preceding “Court”.

ANNOTATIONS

Civil actions.

This section embraced civil causes as well as criminal offenses. In re Cazin, 56 Vt. 297, 1883 Vt. LEXIS 112 (1883).

Exercise of discretion by court.

Where county court denied bail as matter of law, but should have exercised its discretion, Supreme Court admitted prisoner to bail. In re Dexter, 93 Vt. 304, 107 A. 134, 1919 Vt. LEXIS 165 (1919).

§ 3974. Remand of prisoner.

When the prisoner is lawfully imprisoned or restrained or is not entitled to be released on bail, he or she shall be remanded to the person from whose custody he or she was taken or to such other person or officer as by law is authorized to detain him or her.

History

Source.

V.S. 1947, § 2099. P.L. § 2047. G.L. § 2237. P.S. § 1960. V.S. § 1605. R.L. § 1366. G.S. 43, § 21. R.S. 38, § 21. 1814, p. 138.

ANNOTATIONS

Additional charges.

After determination that petitioner’s confinement on mittimus from municipal court was unlawful, petitioner was ordered discharged although it appeared that here was pending against him another charge in county court, as record and evidence were insufficient to clearly establish existence and validity of county court jurisdiction, such proof being necessary to remand prisoner for detention under this section. In re Crepeault, 125 Vt. 360, 215 A.2d 524, 1965 Vt. LEXIS 256 (1965).

Remand for sentencing.

Where prisoner was sentenced to State prison instead of house of correction, prisoner was released on habeas corpus and remanded to custody of sheriff to be detained for new sentence. In re Harris, 68 Vt. 243, 35 A. 55, 1896 Vt. LEXIS 78 (1896).

§ 3975. Custody pending judgment.

Until the judgment is given, such court or magistrate may remand the prisoner, admit him or her to bail to appear from day to day, commit him or her to the custody of the sheriff of the county, or place him or her under such other care and custody as the circumstances of the case require.

History

Source.

V.S. 1947, § 2100. P.L. § 2048. G.L. § 2238. 1915, No. 1 , § 77. P.S. § 1961. V.S. § 1606. R.L. § 1367. G.S. 43, § 22. R.S. 38, § 22.

§ 3976. Refusal to receive or obey and execute writ—Contempt proceedings.

When a person to whom a writ of habeas corpus is directed refuses to receive the same, or does not obey and execute it, unless sufficient excuse therefor is shown, such court or magistrate shall compel obedience to the writ and punish the person guilty of the contempt forthwith, by process of attachment as for contempt.

History

Source.

V.S. 1947, § 2101. P.L. § 2049. G.L. § 2239. 1915, No. 1 , § 78. P.S. § 1962. V.S. § 1607. R.L. § 1368. G.S. 43, § 24. R.S. 38, § 24. 1814, p. 138.

§ 3977. Precept to another officer or person.

Upon such refusal or neglect, such court or magistrate may also issue a precept to an officer or other person, to be designated therein, commanding him or her to bring forthwith before such court or magistrate the person for whose benefit the writ of habeas corpus was issued. The prisoner shall be thereupon discharged, bailed, or remanded, in like manner as if he or she had been brought in on habeas corpus.

History

Source.

V.S. 1947, § 2102. P.L. § 2050. G.L. § 2240. 1915, No. 1 , § 79. P.S. § 1963. V.S. § 1608. R.L. § 1369. G.S. 43, § 25. R.S. 38, § 25.

§ 3978. Penalty for not executing writ.

A person neglecting or refusing to receive and execute a writ of habeas corpus shall forfeit to the person aggrieved $400.00, to be recovered in an action of tort on this statute.

History

Source.

V.S. 1947, § 2103. P.L. § 2051. G.L. § 2241. P.S. § 1964. V.S. § 1609. R.L. § 1370. G.S. 43, § 26. R.S. 38, § 26. 1814, p. 138.

References in text.

The reference to “an action of tort” is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

§ 3979. Confinement for contempt—Issuance and return of writ.

When a person disobeys the order, decree, judgment, or process of a court or a magistrate thereof, or is guilty of a contempt of such court or magistrate, and in consequence is imprisoned or confined by the order or judgment of such court or magistrate, such person shall be entitled to his or her writ of habeas corpus, returnable to the Supreme Court.

History

Source.

V.S. 1947, § 2104. P.L. § 2052. G.L. § 2242. 1915, No. 1 , § 80. P.S. § 1965. V.S. § 1610. R.L. § 1371. G.S. 30, § 12. 1855, No. 7 , § 1.

ANNOTATIONS

Conduct as contempt.

Person was guilty of contempt who, in presence of court, assailed its decisions with sneers, sarcasm or irony. In re Cooper, 32 Vt. 258 (1859), same case 32 Vt. 253, 31 A.L.R. 1189.

Inability to pay as defense.

Where defendant in divorce case had been imprisoned for contempt of court because of failure to comply with alimony order, application for relief on ground of inability to pay should have been made to trial court and not by way of habeas corpus in Supreme Court. In re Sage, 115 Vt. 516, 66 A.2d 13, 1949 Vt. LEXIS 90 (1949).

Payment of fine.

This section had no application to case where penalty imposed was merely a fine. In re Consolidated Rendering Co., 80 Vt. 55, 66 A. 790, 1907 Vt. LEXIS 77 (1907), aff'd, 207 U.S. 541, 28 S. Ct. 178, 52 L. Ed. 327, 1908 U.S. LEXIS 1413 (1908).

§ 3980. Discharge of person confined for contempt.

When it appears on the hearing upon such writ that such disobedience or contempt was committed through ignorance, mistake, or misapprehension, or by acting in good faith under the advice of counsel, and that relief may be granted without impairing the rights of the parties concerned or the due administration of law, the Supreme Court may discharge such person from such imprisonment or confinement upon such terms as seem just.

History

Source.

V.S. 1947, § 2105. P.L. § 2053. G.L. § 2243. P.S. § 1966. V.S. § 1611. R.L. § 1372. G.S. 30, § 13. 1855, No. 7 , § 2.

ANNOTATIONS

Offense on advice of counsel.

Supreme Court had authority to discharge petitioners from further imprisonment, it appearing that their offense was committed in good faith and under advice of counsel, and that such relief might be granted without impairing rights of parties concerned or due administration of law. In re Dawley, 99 Vt. 306, 131 A. 847, 1926 Vt. LEXIS 137 (1926).

§ 3981. Bond.

The Supreme Court may order the person bringing such writ to file a bond with the Clerk of the Court, in such sum and with such sureties and conditions as it directs, to be given to the Clerk of the Court or to such person as the Court designates in the order, and may further order that, upon filing such bond, the person may go at large. The bond may be prosecuted for the benefit of any party interested.

History

Source.

V.S. 1947, § 2106. P.L. § 2054. G.L. § 2244. P.S. § 1967. V.S. § 1612. R.L. § 1373. G.S. 30, § 14. 1855, No. 7 , § 3.

§ 3982. Penalty for attempting to elude service.

Whether a writ has been issued or not, a person who has in his or her custody or under his or her power a prisoner entitled to a writ of habeas corpus, and who, with intent to elude the service of such writ or to avoid the effect thereof, transfers such prisoner to the custody, or places him or her under the power or control of another person, or conceals him or her or changes the place of his or her confinement, shall forfeit to the person aggrieved $400.00, to be recovered in an action of tort on this statute.

History

Source.

V.S. 1947, § 2107. P.L. § 2055. G.L. § 2245. P.S. § 1968. V.S. § 1613. R.L. § 1374. G.S. 43, § 27. R.S. 38, § 27.

References in text.

The reference to “an action of tort” is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

§ 3983. Recovery of penalty not bar to further suit.

The recovery of a penalty imposed by this chapter shall not be a bar to an action for false imprisonment or for a false return to the writ of habeas corpus or for damages.

History

Source.

V.S. 1947, § 2108. P.L. § 2056. G.L. § 2246. P.S. § 1969. V.S. § 1614. R.L. § 1375. G.S. 43, § 28. R.S. 38, § 28.

ANNOTATIONS

Burden of proof.

Burden of proof in a false imprisonment action is upon the plaintiff. Thurston v. Leno, 124 Vt. 298, 204 A.2d 106, 1964 Vt. LEXIS 103 (1964).

False imprisonment.

Fact that plaintiff had been committed to jail without being taken before a magistrate was substantial evidence of false imprisonment entitling him to go to the jury. Thurston v. Leno, 124 Vt. 298, 204 A.2d 106, 1964 Vt. LEXIS 103 (1964).

§ 3984. Imprisonment for same cause after discharge.

A person who has been discharged upon habeas corpus shall not be imprisoned or restrained again for the same cause, unless he or she is indicted therefor or convicted thereof, or does not find bail as ordered by a court of record or unless, after a discharge for a defect of proof or for material defect in the commitment in a criminal cause, he or she is again arrested on sufficient proof and committed for the same offense.

History

Source.

V.S. 1947, § 2109. P.L. § 2057. G.L. § 2247. P.S. § 1970. V.S. § 1615. R.L. § 1376. G.S. 43, § 29. R.S. 38, § 29. 1814, p. 139.

ANNOTATIONS

Removal of bar to arrest.

This chapter does not authorize the issuance of process designed for the purpose of recapturing a person who has been unconditionally released and discharged by a writ of habeas corpus. In re Fitts, 124 Vt. 146, 197 A.2d 808, 1964 Vt. LEXIS 73 (1964).

Discharge from execution upon a habeas corpus predicated upon debtor’s being privileged from arrest by his attendance on court at the time was no bar to his being afterwards arrested upon a new execution upon same judgment. State v. Wright, 2 Vt. 462, 1830 Vt. LEXIS 16 (1830).

§ 3985. Habeas corpus to bring respondent or witness into court.

Nothing in this chapter shall prevent a court from issuing a writ of habeas corpus, when necessary, to bring before it a prisoner for trial in a criminal cause pending in the court, or to be surrendered in discharge of bail, or examined as a witness in any action or proceeding, civil or criminal, pending in such court, when the personal attendance and examination of the witness is necessary in the administration of justice.

History

Source.

V.S. 1947, § 2110. P.L. § 2058. G.L. § 2248. P.S. § 1971. V.S. § 1616. R.L. § 1377. G.S. 43, § 30. R.S. 38, § 30. R. 1797, p. 79, § 14.

Chapter 145. Quo Warranto, Mandamus, and Prohibition

§§ 4041-4046. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 4041-4046. Former §§ 4041-4046 related to extraordinary writs.

Such sections are now covered by V.R.A.P. 21.

Former § 4041 was derived from V.S. 1947, § 2111; P.L. § 2059; G.L. § 2249; P.S. § 1972; V.S. § 1617; R.L. §§ 1378, 1379; 1876, No. 74 , §§ 1, 2.

Former § 4042 was derived from V.S. 1947, § 2112; P.L. § 2060; G.L. § 2250; P.S. § 1973; V.S. § 1618; R.L. § 1380; 1876, No. 74 , § 3.

Former § 4043 was derived from V.S. 1947, § 2113; P.L. § 2061; G.L. § 2251; P.S. § 1974; V.S. § 1619; R.L. § 1381; 1876, No. 74 , § 4.

Former § 4044 was derived from V.S. 1947, § 2114; P.L. § 2062; G.L. § 2252; P.S. § 1975; V.S. § 1620; R.L. § 1382; 1876, No. 74 , § 5.

Former § 4045 was derived from V.S. 1947, § 2115; P.L. § 2063; G.L. § 2253; P.S. § 1976; V.S. § 1621; R.L. § 1383; 1876, No. 74 , § 6.

Former § 4046 was derived from V.S. 1947, § 2116; P.L. § 2064; G.L. § 2254; P.S. § 1977; V.S. § 1622; R.L. § 1384; 1876, No. 74 , § 7.

Editor’s note

—2017. Although annotations are not ordinarily printed for statutes that have been repealed for more than 20 years, the annotations for this chapter are retained because of their distinctive potential research value.

Annotations From Former § 4041

Burden of proof.

Discretion of court.

Nature of proceeding.

Pleadings.

Survival of action.

Annotations From Former § 4042

Parties.

Annotations From Former § 4043

Costs.

Annotations From Former § 4044

Corporate franchises.

Pleading.

—Generally.

  1. PROHIBITION.

    Bodies subject to writ.

    —Ministerial acts.

    Burden of proof.

    Grounds for issuance.

    Nature of writ.

    Other remedy.

    Petition.

    Purpose of section.

    —Ministerial acts.

  2. MANDAMUS.

    Generally.

    Adequate remedy.

    Arbitrary refusal to act.

    Change of office following petition.

    Clear right.

    Complaint.

    Demurrer.

    Discretion of court.

    Discretionary actions.

    Equity jurisdiction.

    Fact issues.

    Grounds.

    Historical.

    Improper acts.

    Judicial notice.

    Ministerial acts.

    Moot issues.

    Particular duty.

    —Generally.

    Preservation of issues.

    Recognizance.

    Requisites generally.

    Scope of inquiry.

    Standing of petition.

    —Generally.

    Statute of limitations.

    —Generally.

    —Generally.

Annotations From Former § 4041

Burden of proof.

Burden is on complainant seeking quo warranto to make out a case against defendants and to prove everything relied on for that purpose. Clark v. Wild, 85 Vt. 212, 81 A. 536, 1911 Vt. LEXIS 229 (1911).

Discretion of court.

Proceedings for writ of quo warranto are addressed to discretion of court, and may be denied on the ground of public policy or in consideration of general justice, all circumstances being considered and question determined from standpoint of public interest. State ex rel. Tenney v. Watson, 96 Vt. 131, 117 A. 663 (1922); State v. McGeary, 69 Vt. 461, 38 A. 165 (1897); State v. Smith, 48 Vt. 266 (1876), same case 48 Vt. 14, 53 Harv. L. Rev. 316.

Quo warranto is addressed to sound discretion of court, and it would be unbecoming for court to act on complaint of private relator, who stands as wrongdoer in respect of the very thing in issue. Pomeroy v. Kelton, 78 Vt. 230, 62 A. 56, 1905 Vt. LEXIS 103 (1905).

Nature of proceeding.

Though proceeding of quo warranto is criminal in form, it is regarded as civil remedy, and pleadings are governed by rules applicable to pleadings in ordinary civil actions. State ex rel. Tenney v. Watson, 96 Vt. 131, 117 A. 663, 1922 Vt. LEXIS 133 (1922).

Pleadings.

Allegations of the complaint must be sufficiently full and explicit to show that the complainant has a case to establish, and the plea of non usurpavit is sufficient to put complainant to his proof. State ex rel. Tenney v. Watson, 96 Vt. 131, 117 A. 663, 1922 Vt. LEXIS 133 (1922).

Complaint seeking quo warranto should positively and with certainty allege facts warranting issue of writ, agreeably to rules of common-law pleading. State ex rel. Ballard v. Greene, 87 Vt. 94, 88 A. 515, 1913 Vt. LEXIS 171 (1913).

When leave is granted to file information in nature of writ of quo warranto, it is duty of court to fix some time, ordinarily during same term, for respondents to appear and plead; and if they do not voluntarily do so, their appearance will be compelled by due process of law. State v. Smith, 48 Vt. 266 (1876), same case 48 Vt. 14, 53 Harv. L. Rev. 316.

Survival of action.

Obligation to pay a tax is not contractual and action of quo warranto to test the validity of tax, the collection of which is threatened, does not survive. Noyes v. Hyde Park, 73 Vt. 261, 50 A. 1068, 1901 Vt. LEXIS 168 (1901).

Annotations From Former § 4042

Parties.

Where quo warranto proceedings were instituted and prosecuted by a private individual under the authority conferred by this section, the State was not an actual party to the proceedings, although the title of the case may have indicated otherwise, not being concerned with the outcome of the controversy, and the burden rested upon the complainant to establish his case. State ex rel. Venner v. Zanleoni, 97 Vt. 212, 122 A. 495, 1923 Vt. LEXIS 232 (1923).

Neither under this section nor otherwise has a private citizen, having no different interest than the public at large, the right to prosecute an information in the nature of quo warranto to compel a person to show by what authority he is exercising a license to sell intoxicating liquors. Brown v. Alderman, 82 Vt. 529, 74 A. 230, 1909 Vt. LEXIS 323 (1909).

Annotations From Former § 4043

Costs.

Since costs may be awarded as is equitable, where the action of a town brought about the situation of uncertainty that gave rise to quo warranto proceedings to test the right of respondents to hold the office of school directors, costs were awarded neither party, though respondents were ousted. State ex rel. Martin v. Foley, 89 Vt. 193, 94 A. 841, 1915 Vt. LEXIS 204 (1915).

Annotations From Former § 4044

Corporate franchises.

The mode of process by which the corporate franchises of an incorporated trust company may be adjudged forfeited was by writ of scire facias, prosecuted in the name of the State, and not by complaint for a writ of quo warranto, prosecuted in the name of a private person, under this chapter. Green v. St. Albans Trust Co., 57 Vt. 340, 1885 Vt. LEXIS 53 (1885).

Pleading.

Ordinarily a complaint by the state’s attorney, virtute officii, though on the relation of another, seeking quo warranto, is not bad because insufficiently pleading relator’s title, for it is not necessary to allege his title at all as, under this section, he will be ousted if he is shown to be without title, though relator fails to establish his title. State ex rel. Ballard v. Greene, 87 Vt. 94, 88 A. 515 (1913), same case 87 Vt. 515, 89 A. 743.

—Generally.

Proceedings to try title to public office cannot be brought before term of office commences. State ex rel. Tenney v. Watson, 96 Vt. 131, 117 A. 663, 1922 Vt. LEXIS 133 (1922).

Where, on a complaint by a private relator for quo warranto to try title to an office, it appeared that intoxicating liquor was systematically furnished to voters at the election in the interest of the relator and through his connivance, the writ was denied on the ground of public policy. Pomeroy v. Kelton, 78 Vt. 230, 62 A. 56, 1905 Vt. LEXIS 103 (1905).

The granting or withholding leave to file an information in the nature of quo warranto, at the instance of a private relator, to test the right to an office, rests in the sound discretion of the court, even though there be a substantial defect in the titles by which the office is held. State v. Mead, 56 Vt. 353, 1883 Vt. LEXIS 123 (1883).

I. PROHIBITION.

Bodies subject to writ.

Writ of prohibition lies not only to courts eo nomine but also to ministerial bodies possessing incidental judicial powers known as quasi-judicial tribunals. Petition of Mattison and Bentley (1958) 120 Vt. 459, 144 A.2d 778; In re Petition of Green Mt. Post No. 1, 116 Vt. 256, 73 A.2d 309 (1950), same case 117 Vt. 405, 94 A.2d 230; Town of Springfield v. Newton, 115 Vt. 39, 50 A.2d 605, 1947 Vt. LEXIS 74 (1947).

The writ of prohibition will not lie against a State’s Attorney engaged in the prosecution of a criminal charge as advocate for the state. Hatley v. Lium, 126 Vt. 385, 231 A.2d 647, 1967 Vt. LEXIS 204 (1967).

—Ministerial acts.

In absence of statute authorizing issuance of writ of prohibition to restrain ministerial acts, writ will not lie to prevent issuance or revocation of liquor license. In re Petition of Green Mt. Post No. 1, 116 Vt. 256, 73 A.2d 309 (1950), same case 117 Vt. 405, 94 A.2d 230.

Burden of proof.

Requirement that one who seeks prohibition demonstrates presence of elements necessary to sustain issuance of writ is not altered by presence of constitutional question. In re Raymo, 121 Vt. 246, 154 A.2d 487, 1959 Vt. LEXIS 114 (1959).

Grounds for issuance.

A writ of prohibition is proper method to prevent illegal taking of deposition for use in criminal case. Reed v. Allen, 121 Vt. 202, 153 A.2d 74, 1959 Vt. LEXIS 108 (1959).

Ordinarily, in a case where prohibition is not otherwise justified, usual expense of litigation to resolve bona fide legal issues will not by themselves support issuance of writ. In re Raymo, 121 Vt. 246, 154 A.2d 487, 1959 Vt. LEXIS 114 (1959).

That matters in issue in action before justice of the peace are res judicata does not deprive justice of jurisdiction, so that prohibition will lie to restrain further proceedings under an erroneous judgment therein. Wilkins v. Stiles, 75 Vt. 42, 52 A. 1048, 1902 Vt. LEXIS 88 (1902).

Party having single, indivisible cause of action cannot split it up into several suits, and if he does so for the purpose of giving justice of the peace final jurisdiction which he would not otherwise have, and defendant has no other remedy, a writ of prohibition will issue in the name of the state against the plaintiff, his attorney and the justice. Bullard v. Thorpe, 66 Vt. 599, 30 A. 36, 1894 Vt. LEXIS 141 (1894).

Nature of writ.

Prohibition is a prerogative writ known to the common law, is directed against unwarranted assumption of jurisdiction or excesses of it, is a remedy of exigency and, like all other prerogative writs, is to be used for the furtherance of justice and to secure order and regularity in judicial proceedings and to be issued only in cases of extreme necessity. In re Petition of Green Mt. Post No. 1, 116 Vt. 256, 73 A.2d 309 (1950), same case 117 Vt. 405, 94 A.2d 230; In re Petition of Keefe, 115 Vt. 289, 57 A.2d 657, 1948 Vt. LEXIS 68 (1948); Town of Springfield v. Newton, 115 Vt. 39, 50 A.2d 605, 1947 Vt. LEXIS 74 (1947); Burlington v. Burlington Traction Co., 70 Vt. 491, 41 A. 514, 1898 Vt. LEXIS 67 (1898).

Function of writ of prohibition is to prevent unlawful assumption of jurisdiction by tribunal contrary to common law or statutory provisions. In re Mattison & Bentley, 120 Vt. 459, 144 A.2d 778, 1958 Vt. LEXIS 125 (1958).

Prohibition enforces same substantive law that is determinative in any judicial proceeding, and its function is to provide a means to discovery and correction of errors or irregularities in judicial proceedings which would otherwise go unreviewed because they are outside scope of regular appellate procedure. In re Raymo, 121 Vt. 246, 154 A.2d 487, 1959 Vt. LEXIS 114 (1959).

Prohibition does not lie to prevent errors or irregularities in judicial proceedings, if matter is within jurisdiction of the tribunal; but its function is to prevent unlawful assumption of jurisdiction, either of entire subject matter or of something collateral or incidental thereto, contrary to common law or statutory provisions. In re Raymo, 121 Vt. 246, 154 A.2d 487, 1959 Vt. LEXIS 114 (1959).

As a matter of discretion, writ of prohibition will issue in any event when petitionees are clearly without jurisdiction to act, and this is especially true where it is in the public interest to have a question settled as soon as possible. Reed v. Allen, 121 Vt. 202, 153 A.2d 74, 1959 Vt. LEXIS 108 (1959).

Writ of prohibition is not proceeding between private litigants but is, in effect, proceeding between two courts, superior and inferior. Marchand v. Addison Probate Court, 123 Vt. 187, 186 A.2d 85, 1962 Vt. LEXIS 221 (1962).

Writ of prohibition is directed against the unwarranted assumption of jurisdiction and is designed to secure order and regularity of judicial proceedings. Town of Woodstock v. Cleveland, 125 Vt. 510, 218 A.2d 691, 1966 Vt. LEXIS 220 (1966).

The writ of prohibition, despite the breadth of relief suggested by its name, is an extraordinary writ of limited and specific application; its function is to control the use of judicial power and assure the regularity of its exercise. Hatley v. Lium, 126 Vt. 385, 231 A.2d 647, 1967 Vt. LEXIS 204 (1967).

Other remedy.

Supreme Court will exercise its discretion to refuse to grant writ of prohibition where question involved is one of law, such as constitutionality of an act, which may be regularly brought before reviewing court an appeal. In re Petition of Green Mt Post No. 1, 116 Vt. 256, 73 A.2d 309 (1950), same case 117 Vt. 405, 94 A.2d 230.

It is within discretion of Supreme Court to grant a writ of prohibition if available relief by appeal or writ of error is not adequate in sense that it is not plain, speedy and is not potentially productive of substantially same relief afforded by writ if granted, or if public interest requires a settling of question at earliest possible moment. In re Raymo, 121 Vt. 246, 154 A.2d 487, 1959 Vt. LEXIS 114 (1959).

Prohibition proceedings do not pass upon exceptions saved at trial below in manner of an appeal, but rather, in appropriate cases, act as a means to extraordinary remedy where operation of usual appellate procedures are absent or do not give complete and adequate relief in particular circumstances. In re Raymo, 121 Vt. 246, 154 A.2d 487, 1959 Vt. LEXIS 114 (1959).

As a prerogative or extraordinary writ, prohibition does not ordinarily lie for grievances which may be redressed in ordinary course of judicial proceedings by remedies provide, by law such as appeal, writ of error, writ of review, certiorari, motion for a change of venue, injunction or mandamus. In re Raymo, 121 Vt. 246, 154 A.2d 487, 1959 Vt. LEXIS 114 (1959).

Right to prohibition is defeated, not by existence, but by adequacy, of another remedy. Reed v. Allen, 121 Vt. 202, 153 A.2d 74, 1959 Vt. LEXIS 108 (1959).

Writ of prohibition will not issue to correct errors of fact or law which are subject to review by right of appeal. Town of Woodstock v. Cleveland, 125 Vt. 510, 218 A.2d 691, 1966 Vt. LEXIS 220 (1966).

Writ of prohibition is an extraordinary writ, an emergency power, to be invoked when regular judicial procedures are unable or unavailable to effectively resolve the issues sought to be raised and in the absence of a showing of the inadequacy of other relief plainly available, the Supreme Court will refrain from allowing this remedy to be used to interrupt the orderly course of trial procedure. Hatley v. Lium, 126 Vt. 385, 231 A.2d 647, 1967 Vt. LEXIS 204 (1967).

Petition.

Petition for writ of prohibition to prevent discontinuance of highway alleging that petitioner owns the land in which highway in question lies, abuts and passes through or which is accommodated by highway is sufficient to show that petitioner is a party damaged, injured or affected by change. In re Mattison & Bentley, 120 Vt. 459, 144 A.2d 778, 1958 Vt. LEXIS 125 (1958).

Purpose of section.

Section is merely declarative of the common law and does not extend the use of the writ of prohibition beyond its limits. In re Petition of Green Mt. Post No. 1, 116 Vt. 256, 73 A.2d 309 (1950), same case 117 Vt. 405, 94 A.2d 230; Gould v. Parker, 114 Vt. 186, 42 A.2d 416, 1945 Vt. LEXIS 68 (1945).

—Ministerial acts.

In absence of statute authorizing issuance of writ of prohibition to restrain ministerial acts, writ will not lie to prevent issuance or revocation of liquor license. In re Petition of Green Mt. Post No. 1, 116 Vt. 256, 73 A.2d 309 (1950), same case 117 Vt. 405, 94 A.2d 230.

II. MANDAMUS.

Generally.

Mandamus affords a plain, speedy and adequate remedy and is practical, efficient and prompt in its administration toward the result sought. Roy v. Farr, 128 Vt. 30, 258 A.2d 799, 1969 Vt. LEXIS 199 (1969).

Adequate remedy.

Mandamus does not lie in presence of another adequate remedy. Dana Corp. & Flanders v. Yusitis, 127 Vt. 201, 243 A.2d 790, 1968 Vt. LEXIS 202 (1968).

In order to supersede mandamus, the other remedy must be competent to afford relief on the very subject matter in question, and be equally convenient, beneficial and effective. Glover v. Anderson, 120 Vt. 153, 134 A.2d 612, 1957 Vt. LEXIS 78 (1957).

Mandamus will not be refused because of the existence of another remedy unless that remedy is clear and adequate, competent to afford relief on the subject matter in question, and equally convenient, beneficial and effective. Roy v. Farr, 128 Vt. 30, 258 A.2d 799, 1969 Vt. LEXIS 199 (1969).

One seeking mandamus must allege, and prove if required, that regularly provided remedies are inadequate or unavailable to accomplish a justifiable purpose. Whiteman v. Brown, 128 Vt. 384, 264 A.2d 793, 1970 Vt. LEXIS 239 (1970).

Where defendant had not demonstrated that any other civil proceeding would be equally convenient, beneficial and effective, mandamus was the proper remedy to compel the commissioner of social welfare to follow the terms of an order of the board of social welfare relating to aid recipient. Blake v. Betit, Commissioner, 129 Vt. 145, 274 A.2d 481, 1971 Vt. LEXIS 238 (1971).

Arbitrary refusal to act.

Where facts show an arbitrary abuse of the power vested by law in an administrative officer or board, amounting to a refusal to act or perform a duty imposed by law, mandamus may be resorted to in absence of other adequate legal remedy. Roy v. Farr, 128 Vt. 30, 258 A.2d 799, 1969 Vt. LEXIS 199 (1969).

Discharge of raw sewage by landowner into open gully on his property was a dangerous public health hazard and there was compelling reasons or local board of health to exercise its statutory power to eliminate the condition, and failure of board to do so amounted to an arbitrary abuse of its lawful authority Roy v. Farr, 128 Vt. 30, 258 A.2d 799, 1969 Vt. LEXIS 199 (1969).

Landowner was entitled to have mandamus issued directing local board of health to remove, or cause to be remove, the hazard to the public health caused by adjoining landowner’s discharge of raw sewage into open gully on his property where board had arbitrarily abused its power to cause removal by failing to do so even though it and the state had recognized the condition as a public health hazard, and where to require petitioner to bring on and action to abate a public nuisance would not afford him a clear, speedy, convenient and adequate remedy. Roy v. Farr, 128 Vt. 30, 258 A.2d 799, 1969 Vt. LEXIS 199 (1969).

Mandamus is a proper remedy in cases of arbitrary abuse of power to be legally exercised by an official or board amounting to a refusal to perform their duties. Corcoran v. Village of Bennington, 128 Vt. 482, 266 A.2d 457, 1970 Vt. LEXIS 259 (1970).

Change of office following petition.

Where petition for mandamus was brought against town’s three selectmen, and one subsequently died and another’s term expired, writ, if issued, would issue only against remaining selectman named in petition and not the one who left office or the successor selectmen. Roy v. Farr, 128 Vt. 30, 258 A.2d 799, 1969 Vt. LEXIS 199 (1969).

Clear right.

In order to determine whether writ of mandamus should issue it must be ascertained whether there exists in petitioner clear right and whether actions of defendant constitute an arbitrary abuse of authority. Couture v. Selectmen of Berkshire, 121 Vt. 359, 159 A.2d 78, 1960 Vt. LEXIS 129 (1960).

To justify issuance of a writ of mandamus, it must appear that the petitioner has a clear right to the performance of the particular duty at the hands of the petitionee and that the law affords no other adequate remedy. Brewster v. Mayor of the City of Rutland, 128 Vt. 437, 266 A.2d 428, 1970 Vt. LEXIS 248 (1970).

Writ of mandamus will not issue where the right is doubtful. Roy v. Farr, 128 Vt. 30, 258 A.2d 799, 1969 Vt. LEXIS 199 (1969).

Landowner seeking mandamus to compel local board of health to abate unhealthy sewage condition on adjoining property had right not to be subjected to such condition, and that right was adequately shown to be certain and clear where board admitted the condition had existed for years and had issued an abatement order, and the situation became so serious that State Department of Health determined it to be public health hazard. Roy v. Farr, 128 Vt. 30, 258 A.2d 799, 1969 Vt. LEXIS 199 (1969).

Supreme Court will not, upon mandamus, order clerk of county court to complete record of judgement by inserting amount of damages as formerly assessed by him, when such account cannot be established with certainty. Rugg v. Davis, 68 Vt. 600, 35 A. 491, 1896 Vt. LEXIS 119 (1896).

Alteration or amendment of town grand tax list properly signed and filed by the listers, and substitution of a body other than the listers to set up a basis for property valuation for tax purposes, was beyond power of town meeting and no clear right was violated when selectmen refused to warn special town meeting sought by taxpayers, so that taxpayers were not entitled to mandamus to compel selectmen to warn meeting. Royalton Taxpayers Protective Association v. Wassmansdorf, 128 Vt. 153, 260 A.2d 203, 1969 Vt. LEXIS 218 (1969).

Mandamus would not be issued to compel school board to warn requested special meeting of school district where one of the two proposed articles to be warned concerned business which it was not proper for the meeting to transact and the other concerned a moot issue, thus leaving petition for meeting without any proposal of business to be transacted. Whiteman v. Brown, 128 Vt. 384, 264 A.2d 793, 1970 Vt. LEXIS 239 (1970).

Mandamus will not issue to compel school district treasurer to turn over to his successor books, papers and money in his possession when there has been no unnecessary delay and where title to money is in dispute between petitionee, district and town, and suit has been begun by town against district, in which petitionee has been summoned as trustee. Bates v. Keither, 66 Vt. 163, 28 A. 865, 1894 Vt. LEXIS 80 (1894).

Complaint.

The court will not consider a ground for granting a writ of mandamus that is not raised by petition. Sanborn v. Weir, 95 Vt. 1, 112 A. 228, 1921 Vt. LEXIS 163 (1921).

In complaint for mandamus it is sufficient to describe with reasonable certainty the thing to be done; especially is this true in the case of public officer who is commanded to perform public duty, and facts constituting act are within his personal knowledge. Clement v. Graham, 78 Vt. 290, 63 A. 146, 1906 Vt. LEXIS 151 (1906).

Demurrer.

When demurrer to replication in mandamus suit is sustained, case stands for consideration on petition and answer; and all averments of fact in answer, and all material allegations in petition which stand admitted, are taken to be true. Sherwin v. Ladd, 95 Vt. 187, 113 A. 522, 1921 Vt. LEXIS 200 (1921).

Discretion of court.

An application for mandamus is addressed to the sound judicial discretion of Supreme Court. Okemo Mtn. v. Town of Ludlow, 127 Vt. 354, 249 A.2d 401, 1968 Vt. LEXIS 241 (1968).

Application for mandamus is addressed to sound judicial discretion of Supreme Court, and is not to be granted in all cases where right in applicant is made to appear. Crystal Brook Farm, Inc. v. Control Comm'rs, 106 Vt. 8, 168 A. 912, 1933 Vt. LEXIS 168 (1933).

Petition for writ of mandamus is addressed to sound judicial discretion of Supreme Court, and will never be granted when it will be unavailing. Sherwin v. Ladd, 95 Vt. 187, 113 A. 522, 1921 Vt. LEXIS 200 (1921); Kendall v. Aldrich, 68 Vt. 478, 35 A. 429, 1896 Vt. LEXIS 101 (1896); Spiritual Atheneum Soc'y v. Selectmen of Randolph, 58 Vt. 192, 2 A. 747, 1885 Vt. LEXIS 24 (1885).

The compelling nature of the remedy of the writ makes its issuance discretionary with the court, depending on the circumstances of the case. Whiteman v. Brown, 128 Vt. 384, 264 A.2d 793, 1970 Vt. LEXIS 239 (1970).

Discretionary actions.

Supreme Court will not issue mandamus in interference with a decision-making process. Corcoran v. Village of Bennington, 128 Vt. 482, 266 A.2d 457, 1970 Vt. LEXIS 259 (1970).

Where a duty is imposed upon public officials, but discretion accorded in the manner of its performance, mandamus will lie to require it to be done, but will not dictate the details of doing it. Corcoran v. Village of Bennington, 128 Vt. 482, 266 A.2d 457, 1970 Vt. LEXIS 259 (1970).

An official cannot claim discretionary refuge when the decision-making aspect of his responsibility rests solely on the construction of a statute. Corcoran v. Village of Bennington, 128 Vt. 482, 266 A.2d 457, 1970 Vt. LEXIS 259 (1970).

The necessity of interpreting village zoning ordinance did not supply a discretionary aspect to refusal to supply mobile home park with water and sewage connections sufficient to bar issuance of mandamus. Corcoran v. Village of Bennington, 128 Vt. 482, 266 A.2d 457, 1970 Vt. LEXIS 259 (1970).

Where the law’s direction to an official is permissive rather than mandatory, or a privilege rather than a right is involved and the official has the discretion to grant or deny the privilege, the authority given contemplates a choice by the official based on the good-faith exercise of his judgment, and the Supreme Court cannot compel action or override a valid decision. Corcoran v. Village of Bennington, 128 Vt. 482, 266 A.2d 457, 1970 Vt. LEXIS 259 (1970).

Equity jurisdiction.

If mandamus affords plain, speedy and adequate remedy, in sense that it is as practical and efficient to the ends of justice and its prompt administration as the remedy in equity, equity has no jurisdiction. Ellis v. Cannon, 113 Vt. 511, 37 A.2d 377, 1944 Vt. LEXIS 111 (1944).

Where mandamus affords plain, speedy, and adequate remedy to compel corporation to perform duty imposed on it by law, equity has no jurisdiction to compel by injunction; but where mandamus would not be sufficiently prompt, equity may proceed by mandatory injunction. Bourke v. Olcott Water Co., 84 Vt. 121, 78 A. 715, 1911 Vt. LEXIS 254 (1911).

Mandamus was not a proper remedy, precluding relief in equity, for landowners whose land was being taxed by each of two towns due to boundary disputes, because it must because it must appear from the mandamus petition that petitioner has a clear right to the performance of the acts he seeks to compel and landowners did not have the to compel remedial action. Poulin v. Town of Danville, 128 Vt. 161, 260 A.2d 208, 1969 Vt. LEXIS 219 (1969).

Fact issues.

Where it is the duty of an official or board to determine factual issues which are in conflict, Supreme Court will not pass upon their judgement as to the probative force of the evidence. Corcoran v. Village of Bennington, 128 Vt. 482, 266 A.2d 457, 1970 Vt. LEXIS 259 (1970).

When a right sought to be enforced becomes certain because the qualifying facts are undisputed or indisputable, mandamus will lie to order the result those facts require under law. Corcoran v. Village of Bennington, 128 Vt. 482, 266 A.2d 457, 1970 Vt. LEXIS 259 (1970).

Grounds.

Mandamus may be used in a proper case to enforce the proper performance of ministerial acts. Gaffney v. Commissioners of Jail Delivery, 111 Vt. 196, 13 A.2d 192 (1940), same case 112 Vt. 438, 27 A.2d 114.

Mandamus may properly issue where actions of public officers amount to an arbitrary denial of petitioner’s rights. Rutland Cable T.V., Inc. v. Rutland, 122 Vt. 162, 166 A.2d 191, 1960 Vt. LEXIS 120 (1960).

When public official refuses to perform duties enjoined upon him by law, and such refusal leaves complainant without remedy, writ of mandamus should issue. Carpenter's Adm'r v. Brown, 118 Vt. 148, 102 A.2d 331, 1954 Vt. LEXIS 92 (1954); Sanborn v. Weir, 95 Vt. 1, 112 A. 228, 1921 Vt. LEXIS 163 (1921).

Although mandamus usually lies for enforcement of purely ministerial acts and will not lie to review performance of an official act in involving exercise of judgement or discretion, where there appears, in some form, an arbitrary abuse of power vested by law in an administrative officer or board which amounts to a virtual refusal to act or to perform a duty imposed by law, mandamus may be resorted to in absence of other adequate legal remedy. Couture v. Selectmen of Berkshire, 121 Vt. 359, 159 A.2d 78, 1960 Vt. LEXIS 129 (1960); Okemo Mtn. v. Town of Ludlow, 127 Vt. 354, 249 A.2d 401, 1968 Vt. LEXIS 241 (1968).

Mandamus will not lie to enforce a quasi-judicial or discretionary act. Carousel Grill v. Liquor Control Board, 123 Vt. 93, 182 A.2d 336, 1962 Vt. LEXIS 199 (1962).

Mandamus does not lie to require a void act. Royalton Taxpayers Protective Association v. Wassmansdorf, 128 Vt. 153, 260 A.2d 203, 1969 Vt. LEXIS 218 (1969).

Mandamus will issue to compel a public officer to act in accordance with the duties placed upon him by the statutory laws of the State, and in such a case sovereign immunity is not a defense. Blake v. Betit, Commissioner, 129 Vt. 145, 274 A.2d 481, 1971 Vt. LEXIS 238 (1971).

Historical.

By No. 74, Acts of 1876, the provisions of the statute of Anne were, in effect, extended to all cases of mandamus. Clement v. Graham, 78 Vt. 290, 63 A. 146, 1906 Vt. LEXIS 151 (1906).

Improper acts.

Where the whole process of purported adoption of village zoning ordinance was irregular and not in strict compliance with the required statutory procedures, the ordinance was invalid, and refusal to grant water and sewer connection permits for mobile home park, predicated on such ordinance, was unsupportable and improper and mandamus would be issued directing the permits to be issued. Corcoran v. Village of Bennington, 128 Vt. 482, 266 A.2d 457, 1970 Vt. LEXIS 259 (1970).

Judicial notice.

Where duty of public officer arose at common law, the court took judicial notice thereof. Clement v. Graham, 78 Vt. 290, 63 A. 146, 1906 Vt. LEXIS 151 (1906).

Ministerial acts.

Mandamus lies in proper case to enforce performance of a ministerial act by a public official. Rutland Cable T.V., Inc. v. Rutland, 121 Vt. 399, 159 A.2d 83, 1960 Vt. LEXIS 136 (1960); Eastern Advertising, Inc. v. Cooley, 126 Vt. 221, 227 A.2d 294, 1967 Vt. LEXIS 172 (1967); Brewster v. Mayor of the City of Rutland, 128 Vt. 437, 266 A.2d 428, 1970 Vt. LEXIS 248 (1970).

If duty is one that necessarily involves an inquiry of fact and an exercise of judgment on case presented, it is not considered ministerial but discretionary and disposition of it made by the official will be binding upon courts. Eastern Advertising, Inc. v. Cooley, 126 Vt. 221, 227 A.2d 294, 1967 Vt. LEXIS 172 (1967); Glover v. Anderson, 120 Vt. 153, 134 A.2d 612, 1957 Vt. LEXIS 78 (1957).

Mandamus is appropriate to compel performance of ministerial acts where a clear right on the part of the petitioner is at stake. Carousel Grill v. Liquor Control Board, 123 Vt. 93, 182 A.2d 336, 1962 Vt. LEXIS 199 (1962).

Mandamus usually lies for the enforcement of purely ministerial acts, but a writ will not issue unless petitioner has a clear and certain legal right to the performance of the act sought to be compelled and the law affords no other remedy. Royalton Taxpayers Protective Association v. Wassmansdorf, 128 Vt. 153, 260 A.2d 203, 1969 Vt. LEXIS 218 (1969).

Mandamus will lie to compel a public officer to perform an official act which is merely ministerial, but the right sought to be enforced must be certain and clear. Roy v. Farr, 128 Vt. 30, 258 A.2d 799, 1969 Vt. LEXIS 199 (1969).

The ministerial duties of an official are usually of a kind where there is a binding duty to act, but discretionary duties are not, since their performance depends on an exercise of judgment. Whiteman v. Brown, 128 Vt. 384, 264 A.2d 793, 1970 Vt. LEXIS 239 (1970).

Mandamus lies to enforce performance of ministerial acts, but not to enforce performance of judicial or quasi-judicial acts involving exercise of judgment or discretion. Crystal Brook Farm, Inc. v. Control Comm'rs, 106 Vt. 8, 168 A. 912, 1933 Vt. LEXIS 168 (1933).

Decision of public officer resting solely on construction of a statute does not involve such an exercise of judgment as will bar mandamus. Roy v. Farr, 128 Vt. 30, 258 A.2d 799, 1969 Vt. LEXIS 199 (1969); Eastern Advertising, Inc. v. Cooley, 126 Vt. 221, 227 A.2d 294, 1967 Vt. LEXIS 172 (1967); Crystal Brook Farm, Inc. v. Control Comm'rs, 106 Vt. 8, 168 A. 912, 1933 Vt. LEXIS 168 (1933).

If statutory duty of local board of health against which mandamus was sought to compel abatement of unhealthy sewage condition on land adjacent to petitioner’s was discretionary and required the exercise of board’s judgment, mandamus would be superseded, or the writ does not lie to enforce performance of judicial or quasi-judicial acts. Roy v. Farr, 128 Vt. 30, 258 A.2d 799, 1969 Vt. LEXIS 199 (1969).

Where town instructed selectmen to evaluate and establish price of certain property and to sell the property at the highest offer above this price and there was no showing that selectmen evaluated and established a price on such property, petitioner, who had submitted the highest bid, was not entitled to writ of mandamus compelling town and selectmen to contract and sell the property. Okemo Mtn. v. Town of Ludlow, 127 Vt. 354, 249 A.2d 401, 1968 Vt. LEXIS 241 (1968).

In determining whether refusal of state board of veterinary registration to register relator as licensed veterinarian was arbitrary abuse of authority, court is confined to evidence of what appeared before board on which their action was based. Sanborn v. Weir, 95 Vt. 1, 112 A. 228, 1921 Vt. LEXIS 163 (1921).

Where duty is imposed upon village, or its proper officers, to maintain and repair its streets and highways, for which it or they are liable to private action, mandamus will lie, in absence of another adequate remedy, to compel performance of this duty, but will not interfere with discretion of its officers as to character of repairs that shall be made. Ellis v. Cannon, 113 Vt. 511, 37 A.2d 377, 1944 Vt. LEXIS 111 (1944).

The law does not permit judgment of court to be substituted for judgment and discretion of board or officer charged with exercise thereof. Proctor v. Hufnail, 111 Vt. 365, 111 Vt. 369, 16 A.2d 518, 1940 Vt. LEXIS 168 (1940).

Mandamus will not issue to direct commissioners of jail delivery to adjudicate that prisoner has not sufficient estate and has not made conveyance in fraud or preference of creditors so that he is entitled to benefits of poor debtor’s oath. Gaffney v. Commissioners of Jail Delivery, 111 Vt. 196, 13 A.2d 192 (1940), same case 112 Vt. 438, 27 A.2d 114.

Resolution authorizing construction of a junior high school and providing for a bond issue for that purpose was duly passed over mayor’s veto, the mayor’s discretion in matter ended with his veto, and when authorized bonds were prepared and presented to him for signature, if legally issued, his duty to sign them was merely ministerial, and could be compelled by mandamus. Burlington v. Mayor of Burlington, 98 Vt. 388, 127 A. 892, 1925 Vt. LEXIS 144 (1925).

Mayor had right to determine whether bonds were legally issued and to decline to sign them if not so issued, but in determining that they were illegal he exercised his judgment and not his discretion; hence on mandamus to compel him to sign such bonds, Supreme Court had power to determine whether he had decided question correctly. Burlington v. Mayor of Burlington, 98 Vt. 388, 127 A. 892, 1925 Vt. LEXIS 144 (1925).

Where power to use school money for transportation of scholars to and from school is discretionary with school directors, their action in that respect cannot be controlled by mandamus. Carey v. Thompson, 66 Vt. 665, 30 A. 5, 1894 Vt. LEXIS 148 (1894).

Judge of Supreme Court can legally make an order for return of petition for writ of mandamus and for filing answer thereto, although proceeding was in favor of town to compel corporation to pay tax, in which town judge was a taxpayer—as it was a ministerial, not a judicial, act. Town of St. Albans v. National Car Co., 57 Vt. 68, 1885 Vt. LEXIS 50 (1885).

Moot issues.

Where article proposed for inclusion in warning was to see if voters of school district would direct that the annual meeting be held not later than January 20 beginning in 1970, and course of litigation was such that Supreme Court’s decision would come at a time when a vote on the question could very likely be taken only after January 20 or so near that date that the annual meeting could not be properly warned and held, mandamus would not be granted to compel school board to warned requested meeting of school district. Whiteman v. Brown, 128 Vt. 384, 264 A.2d 793, 1970 Vt. LEXIS 239 (1970).

Particular duty.

Where there was a grant of public franchise which imposed certain obligations on grantee, and such grant was accepted, a public duty was thereby imposed differing from ordinary contractual duty, and mandamus issued to compel its performance in a proper case. Burlington v. Burlington Traction Co., 98 Vt. 24, 124 A. 857, 1924 Vt. LEXIS 132 (1924).

Mandamus is not available to weigh the soundness of the denial by the liquor control board of the issuance of a license for the sale of intoxicating liquor. Carousel Grill v. Liquor Control Board, 123 Vt. 93, 182 A.2d 336, 1962 Vt. LEXIS 199 (1962).

Petitioner was not entitled to writ of mandamus to compel director of probation and parole to answer his inquiry regarding reasons for denial of his request for pardon and early parole, where evidence showed that petitioner’s request for pardon has been carefully reviewed and that board could find no justification for further review prior to expiration of his minimum sentence. In re Baldwin v. Morse, 126 Vt. 442, 234 A.2d 434, 1967 Vt. LEXIS 217 (1967).

Mandamus was proper remedy for failure to act on application for water and sewer connections. Corcoran v. Village of Bennington, 128 Vt. 482, 266 A.2d 457, 1970 Vt. LEXIS 259 (1970).

Where result of proposed special town meeting to vote on the appropriateness of the Rutland Housing Authority’s selection of a single site for the development of low-income housing under federal project would only be advisory and not binding on the authority, mandamus would not issue to compel the mayor to call the meeting, as the effect of the issuance would be nugatory and serve no lawful purpose. Brewster v. Mayor of the City of Rutland, 128 Vt. 437, 266 A.2d 428, 1970 Vt. LEXIS 248 (1970).

Mandamus is proper remedy to compel old trustees of incorporated village, attempting to hold over, to deliver to new board books, papers and articles of personal property in their possession belonging to village; and to prevent their interfering with new trustees in exercise of their office. Stone v. Small, 54 Vt. 498 (1882).

Article to see if the voters of school district would direct school board to have an audit of all financial and related records of the district for the three preceding school years made by an accounting firm was inappropriate for inclusion in warning for special meeting as it did not deal with proper and appropriate business, therefore, Supreme Court could not issue mandamus to require school board to include the article in the warning. Whiteman v. Brown, 128 Vt. 384, 264 A.2d 793, 1970 Vt. LEXIS 239 (1970).

Once having received an order from the board of social welfare, issued after a fair hearing, and the making of findings of fact by such board, it is the duty of the commissioner to comply with such order and mandamus will issue to require the commissioner to perform such a ministerial act. Blake v. Betit, Commissioner, 129 Vt. 145, 274 A.2d 481, 1971 Vt. LEXIS 238 (1971).

Order of board of social welfare directing payment of the difference between reduced benefits and benefits previously received retroactively to a date certain was sufficiently certain and mandamus would issue to compel payment of that amount. Blake v. Betit, Commissioner, 129 Vt. 145, 274 A.2d 481, 1971 Vt. LEXIS 238 (1971).

Where joint resolution appointing legislative committee did not confer authority to employ a clerk, but stenographer was employed to take down testimony, mandamus to compel stenographer to furnish committee transcript of his minutes was refused, since mandamus does not lie to compel rendition of a mere service. Bailey v. Oviatt, 46 Vt. 627, 1874 Vt. LEXIS 45 (1874).

—Generally.

Where it did not appear that defendant school directors refused to select either course, and answer averred that they always were and still were ready and willing to furnish high school instruction to all pupils of town legally entitled thereto, and denied that they ever refused to do so, mandamus did not issue to compel establishment and maintenance of town high school. Samson v. Grand Isle, 78 Vt. 383, 63 A. 180, 1906 Vt. LEXIS 160 (1906).

Preservation of issues.

Assertion by commissioner of social welfare that payments ordered by board of social welfare had already been made out of another fund could not be raised for first time in Supreme Court in mandamus proceeding. Blake v. Betit, Commissioner, 129 Vt. 145, 274 A.2d 481, 1971 Vt. LEXIS 238 (1971).

Recognizance.

Petition for mandamus not containing the recognizance required by 12 V.S.A. § 657 could have been abated on motion, but in absence of motion to abate, court would consider questions presented. Royalton Taxpayers Protective Association v. Wassmansdorf, 128 Vt. 153, 260 A.2d 203, 1969 Vt. LEXIS 218 (1969).

Requisites generally.

Writ of mandamus will not issue unless right sought to be enforced is certain and clear. Couture v. Selectmen of Berkshire, 121 Vt. 359, 159 A.2d 78, 1960 Vt. LEXIS 129 (1960).

In order to justify issuance of writ of mandamus, it must appear that petitioner has a clear legal right to performance of particular duty at hands of petitionee and that law affords no other adequate remedy. Glover v. Anderson, 120 Vt. 153, 134 A.2d 612, 1957 Vt. LEXIS 78 (1957); Burlington v. Burlington Traction Co., 98 Vt. 24, 124 A. 857, 1924 Vt. LEXIS 132 (1924); Farr v. St. Johnsbury, 73 Vt. 42, 50 A. 548, 1901 Vt. LEXIS 121 (1901); Bankers' Life Ins. Co. v. Howland, 73 Vt. 1, 48 A. 435, 1901 Vt. LEXIS 117 (1901).

To justify issuance of writ of mandamus it must appear from petition that petitioner had clear legal right to the performance of the acts which he sought to compel. In re Baldwin v. Morse, 126 Vt. 442, 234 A.2d 434, 1967 Vt. LEXIS 217 (1967).

Unless officer against whom writ of mandamus is directed has binding duty to act in compliance with petitioner’s request, petition must be dismissed. In re Baldwin v. Morse, 126 Vt. 442, 234 A.2d 434, 1967 Vt. LEXIS 217 (1967).

Writ of mandamus is not to operate as universal alternate to appeal. Dana Corp. & Flanders v. Yusitis, 127 Vt. 201, 243 A.2d 790, 1968 Vt. LEXIS 202 (1968).

Where there are facts which cast doubt on the right of petitioner to right sought, mandamus will be refused. Okemo Mtn. v. Town of Ludlow, 127 Vt. 354, 249 A.2d 401, 1968 Vt. LEXIS 241 (1968).

To justify issuance of a writ a mandamus it must appear from the petition that petitioner has a clear legal right to the performance of the acts he seeks to have compelled and there must be a binding duty on the part of the officer to act in compliance with what is requested of him. Town of Pawlet v. Witherspoon, 128 Vt. 120, 259 A.2d 15, 1969 Vt. LEXIS 210 (1969).

Mandamus being an extraordinary writ which invokes a drastic remedy, it availability is restricted to situations where the enforcement of a clear and certain right is the objective and there is a binding duty of the official to act. Whiteman v. Brown, 128 Vt. 384, 264 A.2d 793, 1970 Vt. LEXIS 239 (1970).

Scope of inquiry.

Supreme Court, in denying writ of mandamus to compel State board to register relator as a veterinarian, may properly decide questions raised that may affect any future action of the board. Sanborn v. Weir, 95 Vt. 1, 112 A. 228, 1921 Vt. LEXIS 163 (1921).

Standing of petition.

When mandamus is sought merely for protection of private rights, relator must show some special or personal interest in subject matter, since he is regarded as the real party in interest; but when question is one of public right, and object of the mandamus is to procure enforcement of public duty, people are regarded as real party in interest, and it is sufficient if it appears that relator is a citizen and as such is interested in execution of the laws. Clement v. Graham, 78 Vt. 290, 63 A. 146, 1906 Vt. LEXIS 151 (1906).

In proceeding brought by petition for mandamus to compel selectmen to warn a special town meeting requested in petitions seeking a redeterminations of issues relative to property tax grand list and body to set up such list, selectmen’s motion to dismiss taxpayers’ association, one of the petitioners for mandamus, on ground it was not a voter and was not alleged to be a property owner or taxpayer would be granted. Royalton Taxpayers Protective Association v. Wassmansdorf, 128 Vt. 153, 260 A.2d 203, 1969 Vt. LEXIS 218 (1969).

Board of school commissioner, charged with a special duty respecting location and construction of schoolhouses within city, has, in whatever directly concern that duty, such special interest as entitles board to be relator in mandamus to compel mayor to sign bonds to provide funds for construction of school buildings. Burlington v. Mayor of Burlington, 98 Vt. 388, 127 A. 892, 1925 Vt. LEXIS 144 (1925).

—Generally.

Pleadings are to be governed by rules of common law, and must, as to substance, meet requirements of good pleading in an ordinary action at law. Clement v. Graham, 78 Vt. 290, 63 A. 146, 1906 Vt. LEXIS 151 (1906).

Mandamus proceeding is an action at law and, under our practice, complaint takes place of alternative writ, answer takes place of return, and subsequent pleadings may be had till issue is joined on merits. Clement v. Graham, 78 Vt. 290, 63 A. 146, 1906 Vt. LEXIS 151 (1906).

At common law return of respondent in mandamus suit is taken as conclusive; and under our practice, wherein relator may plead to return or answer, if no plea or traverse is filed, and case is heard on petition and answer, all averments of fact in answer and all material allegations in petition are taken as true. State v. Plumley, 83 Vt. 491, 76 A. 146, 1910 Vt. LEXIS 219 (1910).

In mandamus proceedings where no traverse is filed to answer, matters in controversy are usually determined on complaint and answer, but where testimony was taken, filed, and used at the hearing by both parties without objection, they thereby treated case as if traverse case as if traverse had been filed, and court did the same. Clement v. Graham, 78 Vt. 290, 63 A. 146, 1906 Vt. LEXIS 151 (1906).

Motion to dismiss petitioner who did not sign petition for mandamus, on ground he was not a party to the proceeding, would be granted. Royalton Taxpayers Protective Association v. Wassmansdorf, 128 Vt. 153, 260 A.2d 203, 1969 Vt. LEXIS 218 (1969).

Statute of limitations.

There is no statute of limitations that bars the right to prefer a petition for a writ of mandamus. State v. Meagher, 57 Vt. 398, 1885 Vt. LEXIS 68 (1885).

—Generally.

Where it did not appear that defendant school directors refused to select either course, and answer averred that they always were and still were ready and willing to furnish high school instruction to all pupils of town legally entitled thereto, and denied that they ever refused to do so, mandamus did not issue to compel establishment and maintenance of town high school. Samson v. Grand Isle, 78 Vt. 383, 63 A. 180, 1906 Vt. LEXIS 160 (1906).

—Generally.

Pleadings are to be governed by rules of common law, and must, as to substance, meet requirements of good pleading in an ordinary action at law. Clement v. Graham, 78 Vt. 290, 63 A. 146, 1906 Vt. LEXIS 151 (1906).

Mandamus proceeding is an action at law and, under our practice, complaint takes place of alternative writ, answer takes place of return, and subsequent pleadings may be had till issue is joined on merits. Clement v. Graham, 78 Vt. 290, 63 A. 146, 1906 Vt. LEXIS 151 (1906).

At common law return of respondent in mandamus suit is taken as conclusive; and under our practice, wherein relator may plead to return or answer, if no plea or traverse is filed, and case is heard on petition and answer, all averments of fact in answer and all material allegations in petition are taken as true. State v. Plumley, 83 Vt. 491, 76 A. 146, 1910 Vt. LEXIS 219 (1910).

In mandamus proceedings where no traverse is filed to answer, matters in controversy are usually determined on complaint and answer, but where testimony was taken, filed, and used at the hearing by both parties without objection, they thereby treated case as if traverse case as if traverse had been filed, and court did the same. Clement v. Graham, 78 Vt. 290, 63 A. 146, 1906 Vt. LEXIS 151 (1906).

Motion to dismiss petitioner who did not sign petition for mandamus, on ground he was not a party to the proceeding, would be granted. Royalton Taxpayers Protective Association v. Wassmansdorf, 128 Vt. 153, 260 A.2d 203, 1969 Vt. LEXIS 218 (1969).

Part 9. Particular Proceedings

Chapter 161. Action for an Accounting

History

Attainment of majority. 1971, No. 90 , § 21, provided: “Notwithstanding any other provision of this act, for purposes of any provision contained in a will, trust agreement, deed, contract or other similar instrument, executed prior to the effective date of this act [July 1, 1971], which includes the word ‘minor’, ‘infant’, ‘adult’, or ‘majority’, or otherwise refers to the state of minority or the attainment of majority, the age of the attainment of majority shall be deemed to be 21 years.”

ANNOTATIONS

Cited.

Cited in Albanese v. Condit, 141 Vt. 651, 450 A.2d 1141, 1982 Vt. LEXIS 568 (1982).

§ 4251. Actions for accounting—jury.

The Superior Court shall have original jurisdiction in actions for an accounting other than accountings involved in the administration of trusts under Title 14A. When the defendant in such an action brought in one of the following ways pleads in defense an answer which, if true, makes him or her not liable to account, the issue thus raised may be tried to a jury:

  1. by one joint tenant, tenant in common, or coparcener, his or her administrator or executor against the other, his or her administrator or executor, as bailiff for receiving more than his or her just proportion of any estate or interest;
  2. by an administrator or executor against his or her coadministrator or coexecutor, who neglects to pay the debts and funeral charges of the intestate or testator, in proportion to the estate in his or her hands, and he or she may recover such proportion of such estate as is just;
  3. by an executor, being a residuary legatee, against the coexecutor to recover his or her equal and ratable part of the estate in the hands of such coexecutor;
  4. by a residuary legatee against the executor; or
  5. on book account.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 117, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 20 , § 5; 2009, No. 154 (Adj. Sess.), § 80.

History

Source.

V.S. 1947, § 1947. P.L. § 1894. G.L. § 2083. 1917, No. 254 , § 2046. P.S. § 1800. V.S. § 1445. R.L. § 1202. G.S. 41, § 12. R.S. 36, § 1. R. 1797, p. 315, §§ 2, 6.

Revision note

—2002. At the beginning of the section, deleted the designation for subsec. (a) to conform the section to V.S.A. style.

Amendments

—2009 (Adj. Sess.) Substituted “court” for “courts” preceding “shall have” and deleted “exclusive of the district court” following “original jurisdiction” in the first sentence.

—2009. Added “other than accountings involved in the administration of trusts under Title 14A” in the first sentence of the introductory paragraph; added “or her” throughout the section; and added “or she” in subdiv. (2).

—1973 (Adj. Sess.). Subsec. (a): Substituted “superior” for “county” preceding “court”.

—1971 (Adj. Sess.). Amended opening paragraph generally to provide for jury trial.

CROSS REFERENCES

Judgments in actions under this chapter against more than one defendant, see § 5056 of this title.

ANNOTATIONS

Amendments.

Defendant’s motion to amend action in assumpsit into suit in equity for purpose of an accounting by reason of tenancy on shares should have been granted where principal matters for determination were matters of accounting which could not be pleaded by answer and complaint in set-off. Vaillancourt v. Gover, 112 Vt. 24, 20 A.2d 122 (1941), same case 112 Vt. 386, 26 A.2d 99.

Construction with other laws.

Although the practice act, chap. 27 of this title, makes the action of account in form an action of contract, it is otherwise unaffected and the practice act does not enlarge the incidents attending the rights of set-off to include the filing of a complaint in account other than book account in set-off. Vaillancourt v. Gover, 112 Vt. 24, 20 A.2d 122, 1941 Vt. LEXIS 128 (1941); Blaisdell v. McClary, 90 Vt. 431, 98 A. 1001, 1916 Vt. LEXIS 299 (1916).

Statutes relating to procedure in actions of book account remain as before the practice act, ch. 27 of this title, took effect, and the previous decisions of Supreme Court relating thereto are to be given their full force. Blaisdell v. McClary, 90 Vt. 431, 98 A. 1001, 1916 Vt. LEXIS 299 (1916).

Equity jurisdiction.

Courts of chancery have concurrent jurisdiction with courts of law in cases where an action of account lies. Smith v. Thibault, 122 Vt. 256, 168 A.2d 729, 1961 Vt. LEXIS 67 (1961).

In matters of accounts between tenants in common, courts of chancery have concurrent jurisdiction with courts of law without regard to the necessity of discovery. Leach v. Beattie, 33 Vt. 195, 1860 Vt. LEXIS 92 (1860).

Evidence.

Parol proof is admissible to show that articles in question were not adjudicated upon in former account and on this point plaintiff is a competent witness. McLaughlin v. Hill, 6 Vt. 20, 1834 Vt. LEXIS 3 (1834).

Where auditors made no further report of circumstances attending the making of verbal contract, but allowed certain items of account accruing thereunder; and county court allowed these items and rendered judgment therefor upon the report, though auditors erred in not specially reporting facts relied on to show that parol agreement was subsequent to the written one, Supreme Court could not hold, as matter of law, that it was not in fact subsequent, and judgement of county court was therefore affirmed. Administrator of Cilley's Est. v. Tenny, 31 Vt. 401, 1858 Vt. LEXIS 152 (1858).

Items subject to accounting.

Where occupancy by one tenant in common is beneficial, and at a profit to such occupant, and is entire and exclusive, he is bound to account to his cotenant for what he has received by such occupancy more than his just proportion. Aldrich v. Stevers, 115 Vt. 379, 61 A.2d 551, 1948 Vt. LEXIS 84 (1948)(1948); Hayden v. Merrill, 44 Vt. 336, 1872 Vt. LEXIS 29 (1872).

One tenant in common is bound to account to his cotenant under this section without any agreement to that effect, for one-half of the rent received from a lessee to whom the whole property was leased, and whose occupancy was exclusive, although the lessee did not use it to exceed one-half of its capacity. Holmes v. Best, 58 Vt. 547, 5 A. 385, 1886 Vt. LEXIS 103 (1886).

It has been settled by repeated decisions that action of account is proper remedy for adjustment of controversies growing out of common mode of leasing farms, where the products and profits are to be divided between landlord and tenant. La Point v. Scott, 36 Vt. 603 (1864), same case 36 Vt. 633.

Where defendant landlord, among other things, sought to recover for damages sustained by him in consequence of the other party’s neglecting to keep up the fences, and hoe the corn, in a good husbandlike manner, as by the lease he had contracted to do, these damages were a proper subject for adjustment in action of account. Administrator of Cilley's Est. v. Tenny, 31 Vt. 401, 1858 Vt. LEXIS 152 (1858).

Under contract for cultivating farm and dividing produce and profits, expense of keeping team and of providing tools and seed may be recovered in action of account against defendant as bailiff and receiver. Ganaway v. Miller, 15 Vt. 152, 1843 Vt. LEXIS 23 (1843).

Administrator de bonis non cannot maintain action of account against former executor to recover balance in his hands, which he refuses to liquidate, the appropriate remedy in such case being to cite the executor before the probate court, which has exclusive jurisdiction in such matters. Curtis v. Curtis, 13 Vt. 517, 1841 Vt. LEXIS 100 (1841).

Account will not lie to recover damages, as for a tort. Brinsmaid v. Mayo, 9 Vt. 31, 1837 Vt. LEXIS 3 (1837).

Cotenant in possession, not denying the right of other cotenants to a participation in the profits, is liable to be called to account by each, therefor. Wiswall v. Wilkins, 5 Vt. 87, 1831 Vt. LEXIS 75 (1831).

Items subject to individual actions.

Where farm is let upon shares, in order to create independent cause of action for some portion or article of farm productions which landlord received, express contract should be shown to take it out of general account. La Point v. Scott, 36 Vt. 603 (1864), same case 36 Vt. 633.

Tenant’s claim for not being allowed to keep his oxen on premises through the year, out of products of farm, as provided in lease, may be sued for independently and a recovery of damages for such breach obtained. La Point v. Scott, 36 Vt. 603 (1864), same case 36 Vt. 633.

Where tenant furnishes landlord articles such as wood, butter, etc., by an express stipulation in the lease, and to be paid for by the landlord, if they were sole property of tenant he may bring separate action for them; but if they were products of farm which belonged to them jointly, then they should go into general accounting and tenant could not maintain a separate action for them without showing express understanding that they were not to enter into general account. La Point v. Scott, 36 Vt. 603 (1864), same case 36 Vt. 633.

Judgment.

Generally in action of account, judgement to account is conclusive of defendant’s liability to account, and auditor is to examine items and report amount either party is in arrears. Hayden v. Merrill, 44 Vt. 336, 1872 Vt. LEXIS 29 (1872).

Pleading.

In order to recover, plaintiff must allege specifically in his declaration the facts necessary to bring the case within section: the joint tenancy, or tenancy in common, of the plaintiff and defendant, the proportions in which they severally hold, and that the defendant has received more than his just share or proportion. Hayden v. Merrill, 44 Vt. 336, 1872 Vt. LEXIS 29 (1872); Brinsmaid v. Mayo, 9 Vt. 31, 1837 Vt. LEXIS 3 (1837).

In action of account to compel adjustment of rights of parties to rents and profits, or avails of sale of land received by defendant as joint owner, or tenant in common with plaintiff, declaration must set forth and define interest and proportionate share of each of parties in land. Cearnes v. Irving, 31 Vt. 604, 1859 Vt. LEXIS 30 (1859).

Declaration in action of account need not specify all items for which amount is claimed, but it should set forth contract or relation from which right to an account arises; and all items which are connected and consistent with that contract or relation may be presented and adjusted before the auditor. Joy v. Walker, 29 Vt. 257 (1857), same case 28 Vt. 442.

In action of account, declaration should set forth, distinctly, all grounds upon which plaintiff claims to hold defendant to accounting. Ganaway v. Miller, 15 Vt. 152, 1843 Vt. LEXIS 23 (1843).

Count in declaration as bailiff and receiver, brought by one plaintiff against one defendant, and stating that plaintiff and defendant and some other person were tenants in common, is bad, the remedy being in chancery. May v. Williams, 3 Vt. 239, 1831 Vt. LEXIS 16 (1831).

Count as receiver, without stating what monies were received, or of whom received, is bad on demurrer. May v. Williams, 3 Vt. 239, 1831 Vt. LEXIS 16 (1831).

Scope of action.

Action of account is proper remedy for adjustment of all controversies arising out of relationship between owner of farm and tenant on shares, and everything growing out of such contract affecting proper settlement and division may be brought into such accounting. Mott v. Bourgeois, 109 Vt. 514, 1 A.2d 704, 1938 Vt. LEXIS 163 (1938).

Unliquidated damages may be recovered in action of account between owner of farm and tenant on shares. Mott v. Bourgeois, 109 Vt. 514, 1 A.2d 704, 1938 Vt. LEXIS 163 (1938).

Tenant’s claim for damages because landlord did not furnish number of cows provided for in lease, might be settled in action of account. La Point v. Scott, 36 Vt. 603 (1864), same case 36 Vt. 633.

In an action of account items of book account can not be adjusted. Administrator of Cilley's Est. v. Tenny, 31 Vt. 401, 1858 Vt. LEXIS 152 (1858).

Time of accounting.

Party cannot be compelled to account as bailiff and receiver, under contract for joint occupancy of land and division of its profits, until the expiration of time specified in contract for such occupancy. Ganaway v. Miller, 15 Vt. 152, 1843 Vt. LEXIS 23 (1843).

Cited.

Cited in Duffy v. Brannen, 148 Vt. 75, 529 A.2d 643, 1987 Vt. LEXIS 457 (1987).

§ 4252. Items belonging to, tried in book account.

On the trial of an action founded on book account, if it appears to the court that any item or items of account or transaction between the same parties would more properly belong to an action for an accounting, the same may be tried and adjusted in the action founded on book account.

History

Source.

V.S. 1947, § 1948. P.L. § 1895. G.L. § 2084. P.S. § 1801. V.S. § 1446. R.L. § 1203. G.S. 41, § 18. 1852, No. 11 .

ANNOTATIONS

Evidence.

Where defendant’s books were introduced to show nonpayment by plaintiff, evidence was not admissible to show discrepancies in the books independent of and collateral to the question at issue. Burnham v. Strafford, 58 Vt. 194, 2 A. 126, 1885 Vt. LEXIS 8 (1885).

Book account lies to recover fees for plaintiff’s arguing a cause for defendant, upon sufficient proof that services were performed, although no charge was made on any regular book of accounts, but on slips of paper filed according to plaintiff’s custom in his professional business. Bell v. McLeran, 3 Vt. 185, 1831 Vt. LEXIS 8 (1831).

Items adjusted on book account.

Items connected with, or deriving from, a lease under seal could not be adjusted in book account. Proctor v. Kiley, 55 Vt. 344 (1883), same case 53 Vt. 406.

Claim of tenant in common upon his cotenant for having received more than his share of the property in which they have a common interest, may, under this section, be tried and adjusted in action of book account. Gates v. Lockwood, 27 Vt. 286, 1855 Vt. LEXIS 29 (1855).

Action on book account will not lie to recover for the use and occupation of land. Case v. Berry, 3 Vt. 322, 1830 Vt. LEXIS 77 (1830).

Where there are mutual dealings and accounts between parties, and on one side charges are made of articles, or services, delivered or rendered, and, intended to apply in payment of rent charged on the other, accounts may be adjusted in action on book account. Case v. Berry, 3 Vt. 322, 1830 Vt. LEXIS 77 (1830).

Partnerships.

Under section courts have no power to settle general and extensive partnership dealings in book actions. Hydeville Co. v. Barnes, 37 Vt. 588, 1865 Vt. LEXIS 34 (1865).

Section does not extend to cases where the entire account relates to partnership dealings. Duryea v. Whitcomb, 31 Vt. 395, 1858 Vt. LEXIS 151 (1858); Green v. Chapman, 27 Vt. 236, 1855 Vt. LEXIS 15 (1855).

Purpose.

Section does not permit matters principally of accounting to be determined in action of book account. Vaillancourt v. Gover, 112 Vt. 24, 20 A.2d 122 (1941), same case 112 Vt. 386, 26 A.2d 99; Huxley v. Carman, 46 Vt. 462, 1874 Vt. LEXIS 22 (1874).

Time of action.

Action on book account cannot be sustained when no portion of plaintiff’s account against defendant had become due at the time of commencement of the action, although it was all due at time of hearing before auditor. Wetherell, Whitney & Co. v. Evarts, 17 Vt. 219, 1845 Vt. LEXIS 16 (1845).

Former recovery in action on book will not bar subsequent suit of same nature for articles delivered previous to such recovery, but not adjudicated upon, on ground that time of payment had not then elapsed. McLaughlin v. Hill, 6 Vt. 20, 1834 Vt. LEXIS 3 (1834).

§ 4253. Failure of defendant to appear; consequence.

In an action for an accounting, if a verdict is found against the defendant or if he or she does not appear, or appearing confesses that he or she ought to account, the court shall render judgment that he or she account.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 118, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1949. P.L. § 1896. G.L. § 2085. P.S. § 1802. V.S. § 1447. R.L. § 1204. G.S. 41, § 2. R.S. 36, § 2. R. 1797, p. 313, § 1. R. 1787, p. 19.

Amendments

—1971 (Adj. Sess.). Omitted provisions relating to jury trial.

ANNOTATIONS

Application.

Section applies also to an action of book account. Library Bureau v. Hooker, Corser & Mitchell Co., 84 Vt. 530, 80 A. 660, 1911 Vt. LEXIS 299 (1911).

§ 4254. Defense before auditor.

The judgment to account in the action for an accounting shall not prevent the defendant from making any defense before the auditor which he or she might have made by answer in bar to the action, if the judgment to account had not been rendered.

History

Source.

V.S. 1947, § 1950. P.L. § 1897. G.L. § 2086. P.S. § 1803. V.S. § 1448. R.L. § 1205. 1872, No. 54 .

ANNOTATIONS

Application.

Provisions of this section apply to hearings before court as well as to hearings before auditor. Congdon v. Torrey, 95 Vt. 38, 112 A. 202, 1921 Vt. LEXIS 168 (1921).

Retrospective effect.

Act of 1872, providing that “the judgment to account in the common law action of account shall not debar the defendant from making any defense before the auditor which he might have made by special plea in bar of the action if said judgment to account had not been rendered,” is not retrospective, and does not apply to case in which judgment to account was rendered and auditor appointed before passage of act, but wherein account was not taken until after its passage. Sturgis v. Hull, 48 Vt. 302, 1876 Vt. LEXIS 23 (1876).

§ 4255. Hearing by court; auditors.

When judgment to account is rendered, the court may hear, examine, and adjust the accounts between the parties or may appoint one or more auditors for such purpose.

History

Source.

V.S. 1947, § 1951. P.L. § 1898. G.L. § 2087. 1908, No. 56 , § 4. P.S. § 1804. 1806, No. 63 , § 29. V.S. § 1449. R.L. § 1206. G.S. 41, § 3. R.S. 36, § 3. R. 1797, p. 313, § 1. R. 1787, p. 19.

ANNOTATIONS

Appointment of auditor.

Judge, acting as a constituent part of the court, cannot appoint himself auditor, but where it does not appear from the record that the auditor was a judge of the court, or that he sat as such in the cause, and especially where the appointment appears to have been made with the consent of the parties, the judgment will not be reversed for that cause. Campbell v. Wilson, 2 Aik. 118 (Vt. 1826).

Where party to action on book, originally commenced before justice of the peace, consent to reference of cause to auditors by county court, he was estopped from questioning regularity of the referral on a writ of error. Campbell v. Wilson, 2 Aik. 118 (Vt. 1826).

Jury trial.

Party is not entitled to a jury trial upon merits in an action of book account pending in county court. Hall v. Armstrong, 65 Vt. 421, 26 A. 592, 1893 Vt. LEXIS 70 (1893).

§ 4256. Hearing by auditors; report; judgment.

Such auditors shall hear, examine, and adjust all the accounts existing between the parties of a similar nature and in the same right, to the time of hearing, and report the same within 30 days after hearing before them is finished. Unless cause to the contrary is shown, the report shall be accepted by the court as conclusive of the facts in issue submitted and judgment rendered thereon for the sum found in arrears from either party with costs.

History

Source.

V.S. 1947, § 1952. 1945, No. 29 , § 11. P.L. § 1899. G.L. § 2088. P.S. § 1805. V.S. § 1450. R.L. §§ 1207, 1213. G.S. 41, §§ 7, 9. R.S. 36, §§ 7, 9. R. 1797, p. 313, § 1. R. 1797, p. 316, § 8. R. 1787, p. 19.

ANNOTATIONS

Application.

Section, directing auditor to examine and adjust accounts of parties to time of making up report, has reference to cases commenced before court having jurisdiction of case at time suit is commenced. Shepherd v. Beede, 24 Vt. 40, 1851 Vt. LEXIS 105 (1851).

Conflict of laws.

Section and its construction allowing recovery of amounts due after commencement of suit but prior to hearing applied to contract made in a State where no recovery can be had for property sold after suit is commenced. Porter & Ballard v. Munger, 22 Vt. 191, 1850 Vt. LEXIS 13 (1850).

Defenses.

Auditor is merely to adjust accounts between the parties and an independent offset, not a matter of account, must be pleaded in county court. Hassam v. Hassam, 22 Vt. 516, 1850 Vt. LEXIS 69 (1850).

A judgment, which defendant has recovered against plaintiff, cannot be given in evidence before auditor as a defense to the plaintiff’s book account. Hassam v. Hassam, 22 Vt. 516, 1850 Vt. LEXIS 69 (1850).

Statute of limitations cannot be insisted upon as objection to acceptance of report of auditors, if not insisted upon at time of audit. Newell v. Executor of Keith, 11 Vt. 214, 1839 Vt. LEXIS 51 (1839).

In action on book, defense arising from tender and refusal may be taken advantage of before auditors. Pratt v. Gallup, 7 Vt. 344, 1835 Vt. LEXIS 52 (1835).

—Generally.

A major part of board of auditors may make report, provided it shows that all of them sat in the cause and participated in the deliberations. Newell v. Executor of Keith, 11 Vt. 214, 1839 Vt. LEXIS 51 (1839).

In action on book, auditor must report facts, not evidence of those facts; but court will make all the presumptions necessary arising from facts reported. Shaw v. Shaw, 6 Vt. 69, 1834 Vt. LEXIS 14 (1834).

Section has been construed to require auditor to state in his report what items of account he allowed, and what items he disallowed; but he need not state the ground or reason for allowing or disallowing any item, unless specially requested. Macks v. Brush, 5 Vt. 70, 1833 Vt. LEXIS 11 (1833).

Duty of auditors.

Auditors are required in taking account of parties on book, to examine and adjust same to time of audit; and plaintiff is also entitled to hold any lien or security that he may have obtained by attachment, for payment of balance which he may recover. Chaffee v. Malarkee & Hodges & 0wen, 26 Vt. 242 (1854).

Items included in account.

In action upon book account plaintiff may recover for all of his account due at time of hearing before auditor, notwithstanding portion of account consists of charges for property sold upon a credit after the commencement of suit. Porter & Ballard v. Munger, 22 Vt. 191, 1850 Vt. LEXIS 13 (1850); Thetford v. Hubbard, 22 Vt. 440, 1850 Vt. LEXIS 56 (1850); Martin v. Fairbanks, 7 Vt. 97 (1835); Pratt v. Gallup, 7 Vt. 344, 1835 Vt. LEXIS 52 (1835); Ambler v. Bradley, 6 Vt. 119, 1834 Vt. LEXIS 21 (1834).

It is no objection to report that items of account existing prior to settlement between parties are allowed by auditors, provided it is found that those items were not included in settlement, and whether included or not is a fact for auditors to find. Newell v. Executor of Keith, 11 Vt. 214, 1839 Vt. LEXIS 51 (1839).

Objections to.

Though county court might in its discretion refuse to allow party to make objection to auditor after he had rendered his report, still it would not be error for such court to sustain that objection, even if made for the first time at so late a period of the case. Clapp v. Foster, 34 Vt. 580, 1861 Vt. LEXIS 99 (1861).

§ 4257. Actions between partners, coparceners, or tenants in common.

In an action for an accounting, maintained by one or more partners against the other partner or partners, to settle and adjust their partnership accounts and dealings, or by one or more coparceners or tenants in common, to settle and adjust their accounts and dealings, the defendant or defendants shall have the right to trial by jury provided by section 4251 of this title.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 119, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1953. P.L. § 1900. G.L. § 2089. 1917, No. 254 , § 2052. P.S. § 1806. V.S. § 1451. R.L. §§ 1214, 1217. G.S. 41, §§ 13, 17. 1853, No. 17 . 1852, No. 10 , § 1.

Amendments

—1971 (Adj. Sess.). Rephrased and added provisions relating to section 4251.

CROSS REFERENCES

Partnerships, generally, see 11 V.S.A. ch. 22.

ANNOTATIONS

Grounds for action.

Action of account is proper remedy for adjustment of all controversies arising out of tenancy on shares, and everything growing out of such contract affecting proper settlement and division may be brought into such accounting. Doyle v. Polle, 121 Vt. 335, 157 A.2d 226, 1960 Vt. LEXIS 125 (1960); Smith v. Thibault, 122 Vt. 256, 168 A.2d 729, 1961 Vt. LEXIS 67 (1961).

Action of account between owner of farm and tenants on shares was proper remedy under this section and section 4251 of this title for failure of tenants to leave certain grain according to agreement and for removal of cattle raised on farm and cattle purchased for benefit of tenancy. Mott v. Bourgeois, 109 Vt. 514, 1 A.2d 704, 1938 Vt. LEXIS 163 (1938).

Action of account at common law cannot be maintained to settle partnership matters between three or more partners having separate and distinct interests. Stevens v. Coburn, 71 Vt. 261, 44 A. 354, 1899 Vt. LEXIS 170 (1899).

Partner may sustain action of account against surviving partner and administrator of deceased partner. Park v. McGowen, 64 Vt. 173, 23 A. 855, 1891 Vt. LEXIS 77 (1891); Newell v. Humphrey, 37 Vt. 265, 1864 Vt. LEXIS 94 (1864).

Jurisdiction.

By this section and section 4258 of this title county courts are given original and exclusive jurisdiction of such action in courts of law, with all powers of court of chancery, and so probate court has no jurisdiction of action of account by way of proof of claim against decedent’s estate, where more than two parties having separate and distinct interests are concerned, and consequently county court has none on appeal. Hodges's Adm'r v. Hodges's Est., 90 Vt. 214, 97 A. 676, 1916 Vt. LEXIS 262 (1916).

Section does not extend jurisdiction to justice courts nor to city court of Montpelier. Stevens v. Coburn, 71 Vt. 261, 44 A. 354, 1899 Vt. LEXIS 170 (1899).

The equitable powers conferred upon law courts in connection with action of account have reference to administration of suits where title of parties is legal; they do not confer jurisdiction where title is equitable. Leonard v. Leonard, 67 Vt. 318, 31 A. 783, 1895 Vt. LEXIS 55 (1895).

County court, by force of this section, has all the power of court of chancery, in closing up partnership matters in an equitable manner. Foster v. Ives, 53 Vt. 458, 1881 Vt. LEXIS 26 (1881).

Section does not extend jurisdiction of justices of the peace to accounts to be rendered between three or more parties. La Point v. Scott, 36 Vt. 633 (1864), same case 36 Vt. 603.

Parties.

Action at law where the same person in one of the plaintiffs and also one of the defendants cannot be sustained either upon common law principles or by the provisions of this section. Green v. Chapman, 27 Vt. 236, 1855 Vt. LEXIS 15 (1855).

Pleading.

Declaration in suit under this section need not allege that administrator has received property belonging to estate or to firm. Park v. McGowen, 64 Vt. 173, 23 A. 855, 1891 Vt. LEXIS 77 (1891).

Prior law.

Act “relating to actions between copartners,” approved November 15, 1852, referred only to such actions as were brought to settle and adjust partnership accounts, and to which the copartners alone were parties. Green v. Chapman, 27 Vt. 236, 1855 Vt. LEXIS 15 (1855).

§ 4258. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 4258. Former § 4258, relating to jurisdiction of county court, was derived from V.S. 1947, § 1954; P.L. § 1901; G.L. § 2090; 1908, No. 56 , § 5; P.S. § 1807; 1906, No. 63 , § 30; V.S. § 1452; R.L. § 1215; G.S. 41, § 14; 1852, No. 10 , § 2.

Chapter 163. Chancery Proceedings

Subchapter 1. General Provisions; Proceedings Before Trial

§§ 4311-4328. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 4311-4328. Former §§ 4311-4328 related to chancery proceedings.

These sections are now covered by V.R.C.P. 2-4.1, 7(a), 10(a), 11-13, 55, 65(c).

Former § 4311 was derived from 1951, No. 32 , § 1; V.S. 1947, § 1286; P.L. § 1253; G.L. § 1495; P.S. § 1240; V.S. § 916; R.L. § 704; G.S. 29, § 17; R.S. 24, § 11.

Former § 4312 was derived from V.S. 1947, § 1287; P.L. § 1254; G.L. § 1496; 1917, No. 254 , § 1459.

Former § 4313 was derived from V.S. 1947, § 1288; P.L. § 1255; G.L. § 1497; P.S. § 1241; V.S. § 917; R.L. § 705; G.S. 29, § 18; R.S. 24, § 28.

Former § 4314 was derived from V.S. 1947, § 1289; P.L. § 1256; G.L. § 1498; P.S. § 1242; V.S. § 918; 1888, No. 51 , § 1; R.L. § 706; 1867, No. 10 , § 1; G.S. 29, § 19; R.S. 24, § 12.

Former § 4315 was derived from V.S. 1947, § 1291; P.L. § 1258; G.L. § 1500; 1908, No. 55 , § 2.

Former § 4316 was derived from V.S. 1947, § 1292; P.L. § 1259; G.L. § 1501; P.S. § 1243; V.S. § 919; R.L. § 707; G.S. 29, § 20; R.S. 24, § 13.

Former § 4317 was derived from V.S. 1947, § 1293; P.L. § 1260; G.L. § 1502; P.S. § 1244; V.S. § 920; R.L. § 708; 1867, No. 10 , § 1; G.S. 29, § 23; R.S. 24, § 14; 1830, No. 6 , § 2.

Former § 4318 was derived from V.S. 1947, § 1294; P.L. § 1261; G.L. § 1503; 1910, No. 77 , § 1; 1908, No. 53 , § 1; P.S. § 1245; R. 1906, § 1153; V.S. § 921; R.L. § 709; G.S. 29, § 21; R.S. 24, § 60.

Former § 4319 was derived from V.S. 1947, § 1295; P.L. § 1262; G.L. § 1504; 1910, No. 77 , § 2; 1908, No. 53 , § 2; P.S. § 1246; V.S. § 922; R.L. § 710; G.S. 29, § 21; R.S. 24, § 60.

Former § 4320 was derived from V.S. 1947, § 1296; P.L. § 1263; G.L. § 1505; P.S. § 1247; V.S. § 923; R.L. § 711; G.S. 29, § 22; R.S. 24, § 61.

Former § 4321 was derived from V.S. 1947, § 1297; P.L. § 1264; G.L. § 1506; P.S. § 1248; V.S. § 924; R.L. § 712; G.S. 29, § 24; R.S. 24, § 15; 1830, No. 6 , § 1; R. 1797, p. 126, § 5.

Former § 4322 was derived from V.S. 1947, § 1798; P.L. § 1265; G.L. § 1507; P.S. § 1249; V.S. § 925; R.L. § 713; G.S. 29, § 25; R.S. 24, § 16; 1802, p. 197, § 2; R. 1797, p. 126, § 5.

Former § 4323 was derived from V.S. 1947, § 1299; P.L. § 1266; G.L. § 1508; P.S. § 1250; V.S. § 926; R.L. § 714; G.S. 29, § 26; R.S. 24, § 27.

Former § 4324 was derived from V.S. 1947, § 1300; P.L. § 1267; G.L. § 1509; P.S. § 1251; V.S. § 927; R.L. § 715; G.S. 29, § 27; R.S. 24, § 26.

Former § 4325 was derived from V.S. 1947, § 1301; P.L. § 1268; G.L. § 1510; P.S. § 1252; V.S. § 928; R.L. § 716; G.S. 29, § 28; R.S. 24, § 25.

Former § 4326 was derived from V.S. 1947, § 1337; P.L. § 1304; G.L. § 1545; P.S. § 1293; V.S. § 967; R.L. § 757; G.S. 29, § 61; R.S. 24, § 68.

Former § 4327 was derived from V.S. 1947, § 1338; P.L. § 1305; G.L. § 1546; P.S. § 1294; V.S. § 968; R.L. § 758; G.S. 29, § 64; R.S. 24, § 71.

Former § 4328 was derived from V.S. 1947, § 1339; P.L. § 1306; G.L. § 1547; P.S. § 1295; V.S. § 969; R.L. § 759; G.S. 29, § 70; R.S. 24, § 80.

Subchapter 2. Trial of Causes

§§ 4361-4370. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 4361-4370. Former §§ 4361-4370 related to trial of causes.

These sections are now covered by V.R.C.P. 2, 39, 40(a), 53, 58, 77(a), (b).

Former § 4361 was derived from V.S. 1947, § 1302; P.L. § 1269; G.L. § 1511; 1917, No. 254 , § 1474; P.S. § 1253; 1906, No. 62 , § 1.

Former § 4362 was derived from V.S. 1947, § 1303; P.L. § 1270; G.L. § 1512; P.S. § 1254; 1906, No. 62 , § 1.

Former § 4363 was derived from V.S. 1947, § 1304; P.L. § 1271; 1929, No. 40 , § 3.

Former § 4364 was derived from V.S. 1947, § 1305; P.L. § 1272; G.L. § 1513; 1908, No. 56 , § 1; P.S. § 1261; 1906, No. 63 , § 20; V.S. § 936; R.L. § 724; 1878, No. 17 , §§ 1, 3.

Former § 4365 was derived from V.S. 1947, § 1306; P.L. § 1273; G.L. § 1514; P.S. § 1262; V.S. § 937; R.L. § 725; 1878, No. 17 , § 1.

Former § 4366 was derived from V.S. 1947, § 1307; P.L. § 1274; G.L. § 1515; P.S. § 1263; R. 1906, § 1170.

Former § 4367 was derived from V.S. 1947, § 1308; P.L. § 1275; G.L. § 1516; P.S. § 1264; V.S. § 938; 1892, No. 29 ; R.L. § 726; 1878, No. 17 , § 2.

Former § 4368 was derived from V.S. 1947, § 1309; P.L. § 1276; G.L. § 1517; P.S. § 1265; V.S. § 939; R.L. § 727; 1878, No. 17 , § 4.

Former § 4369 was derived from V.S. 1947, § 1310; 1945, No. 29 , § 1; P.L. § 1277; G.L. § 1518; 1917, No. 254 , § 1481; P.S. § 1266; V.S. § 940; R.L. § 728; 1878, No. 17 , § 5.

Former § 4370 was derived from V.S. 1947, § 1311; P.L. § 1278; G.L. § 1519; P.S. § 1267; V.S. § 941; R.L. § 729; 1878, No. 17 , § 6.

§ 4371. Repealed. 1959, No. 261, § 68.

History

Former § 4371. Former § 4371, relating to exceptions, was derived from V.S. 1947, § 1312; P.L. § 1279; G.L. § 1520; P.S. § 1268; V.S. § 942; R.L. § 730; 1878, No. 17 , § 7.

Subchapter 3. Death of Party; Revivor of Action

§§ 4401-4411. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 4401-4411. Former §§ 4401-4411 related to chancery proceedings, death of party revivor of action.

These sections are now covered by V.R.C.P. 2, 25(a).

Former § 4401 was derived from V.S. 1947, § 1313; P.L. § 1280; G.L. § 1521; P.S. § 1269; V.S. § 943; R.L. § 732; G.S. 29, § 40; R.S. 24, § 45.

Former § 4402 was derived from V.S. 1947, § 1314; P.L. § 1281; G.L. § 1522; P.S. § 1270; V.S. § 944; R.L. § 733; G.S. 29, §§ 42, 46; R.S. 24, §§ 47, 51.

Former § 4403 was derived from V.S. 1947, § 1315; 1945, No. 29 , § 2; P.L. § 1282; G.L. § 1523; P.S. § 1271; V.S. § 945; R.L. § 734; G.S. 29, §§ 43, 44, 46; R.S. 24, §§ 48, 49, 51.

Former § 4404 was derived from V.S. 1947, § 1316; P.L. § 1283; G.L. § 1524; P.S. § 1272; V.S. § 946; R.L. § 735; G.S. 29, §§ 44, 45, 47; R.S. 24, §§ 49, 50, 52.

Former § 4405 was derived from V.S. 1947, § 1317; P.L. § 1284; G.L. § 1525; P.S. § 1273; V.S. § 947; 1892, No. 30 ; R.L. § 736; G.S. 29, §§ 48, 49; R.S. 24, §§ 53, 54.

Former § 4406 was derived from V.S. 1947, § 1318; 1945, No. 29 , § 3; P.L. § 1285; G.L. § 1526; P.S. § 1274; V.S. § 948; R.L. § 737; G.S. 29, § 50; R.S. 24, § 55.

Former § 4407 was derived from V.S. 1947, § 1319; P.L. § 1286; G.L. § 1527; P.S. § 1275; V.S. § 949; R.L. § 738; G.S. 29, § 51; R.S. 24, § 56.

Former § 4408 was derived from V.S. 1947, § 1320; P.L. § 1287; G.L. § 1528; P.S. § 1276; V.S. § 950; R.L. § 739; G.S. 29, § 52; R.S. 24, § 57.

Former § 4409 was derived from V.S. 1947, § 1321; P.L. § 1288; G.L. § 1529; P.S. § 1277; V.S. § 951; R.L. § 740; G.S. 29, § 53; R.S. 24, § 58.

Former § 4410 was derived from V.S. 1947, § 1322; P.L. § 1289; G.L. § 1530; P.S. § 1278; V.S. § 952; R.L. § 741; G.S. 29, § 54; R.S. 24, § 59.

Former § 4411 was derived from V.S. 1947, § 1323; P.L. § 1290; G.L. § 1531; P.S. § 1279; V.S. § 953; R.L. § 742; G.S. 29, § 41; R.S. 24, § 46.

Subchapter 4. Injunctions

§§ 4441-4446. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 4441-4446. Former §§ 4441-4446 related to chancery proceedings, injunctions.

These sections are now covered by V.R.C.P. 2, 65.

Former § 4441 was derived from V.S. 1947, § 1324; P.L. § 1291; G.L. § 1532; 1917, No. 254 , § 1495; 1908, No. 54 , § 1; P.S. § 1280; V.S. § 954; R.L. §§ 744, 745; G.S. 29, §§ 55, 56; R.S. 24, §§ 30, 31.

Former § 4442 was derived from V.S. 1947, § 1325; P.L. § 1292; G.L. § 1533; P.S. § 1281; V.S. § 955; R.L. § 746; G.S. 20, § 57; 1846, No. 3 , § 1; R.S. 24, § 62.

Former § 4443 was derived from V.S. 1947, § 1326; P.L. § 1293; G.L. § 1534; P.S. § 1282; V.S. § 956; R.L. § 747; G.S. 29, § 58; 1846, No. 3 , § 2; R.S. 24, §§ 63, 67.

Former § 4444 was derived from V.S. 1947, §§ 1327, 1328; P.L. §§ 1294, 1295; G.L. §§ 1535, 1536; P.S. §§ 1283, 1284; V.S. §§ 957, 958; R.L. §§ 748, 749; G.S. 29, §§ 59, 60; R.S. 24, §§ 64, 65.

Former § 4445 was derived from V.S. 1947, § 1329; P.L. § 1296; 1919, No. 62 , § 1; G.L. § 1537; 1917, No. 254 , § 1500; P.S. § 1285; V.S. § 959; R.L. § 750; G.S. 29, § 62; R.S. 24, § 69.

Former § 4446 was derived from V.S. 1947, § 1330; P.L. § 1297; G.L. § 1538; P.S. § 1286; V.S. § 960; R.L. § 751; G.S. 29, § 63; R.S. 24, § 70.

§ 4447. Damages on final judgment.

When an injunction has been dissolved by a final judgment in favor of the enjoined party, he or she shall be entitled to recover his or her actual damages caused by the wrongful issuing of the injunction.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 120, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1331. P.L. § 1298. G.L. § 1539. P.S. § 1287. V.S. § 961. 1884, No. 142 , § 1.

Amendments

—1971 (Adj. Sess.). Rephrased and omitted references to equity procedures.

ANNOTATIONS

Assessment by reference to master.

The word “shall,” as formerly used in this section, which provided that when an injunction is dissolved by final decree in favor of defendant injunction damages “shall be ascertained by reference to a master,” was to be construed as synonymous with “may” and merely directory, and court could assess damages without such reference. Spaulding & Kimball Co. v. Aetna Chemical Co., 98 Vt. 169, 126 A. 588 (1924), same case 98 Vt. 51, 126 A. 582.

Assessment of damages after appeal.

Nothing by way of a residual power to assess injunction damages remains in the trial court after appeal, in the absence of a remand from the Supreme Court. Couture v. Lowery, 122 Vt. 505, 177 A.2d 371, 1962 Vt. LEXIS 128 (1962).

Assessment of damages after final decree.

This section did not contemplate the assessment of damages until after final decree has been entered. Spaulding & Kimball Co. v. Aetna Chemical Co., 98 Vt. 169, 126 A. 588 (1924), same case 98 Vt. 51, 126 A. 582.

Where temporary injunction, issued to restrain prosecution of a personal action at law, was dissolved by order of court in vacation, after demurrer to complaint had been sustained, bill adjudged insufficient, and decree ordered for defendant, and, no appeal being taken within the statutory period, the decree had become final, defendant’s subsequent motion for damages for the wrongful issuance of injunction, while the cause still remained on the docket, was timely. Spaulding & Kimball Co. v. Aetna Chemical Co., 98 Vt. 169, 126 A. 588 (1924), same case 98 Vt. 51, 126 A. 582.

Until formal decree as required by the rule is signed and filed or the case has gone off the docket, the case is to be considered pending as far as motion for assessment or damages is concerned. Spaulding & Kimball Co. v. Aetna Chemical Co., 98 Vt. 169, 126 A. 588 (1924), same case 98 Vt. 51, 126 A. 582.

Burden of proof.

In order to obtain an assessment of wrongful injunction damages, enjoined party must show both that the injunction was wrongfully issued and that he suffered damages resulting from the wrongful issuance; determination that this burden has not been met can be overcome only if an opposite result is required as a matter of law. ADE Software Corp. v. Hoffman, 172 Vt. 259, 775 A.2d 896, 2001 Vt. LEXIS 140 (2001).

Where defendant’s submissions to the trial court did not articulate with any specificity the contours of his damages, nor proffer any new evidence with respect to his claims, the court did not abuse its discretion in deciding that defendant failed to establish his right to injunction damages. ADE Software Corp. v. Hoffman, 172 Vt. 259, 775 A.2d 896, 2001 Vt. LEXIS 140 (2001).

Burden is on defendant to establish right to damages for wrongful issuance of an injunction. Sykas v. Alvarez, 126 Vt. 420, 234 A.2d 343, 1967 Vt. LEXIS 212 (1967).

On defendant’s motion for injunction damages, after dissolution of injunction, he had burden of establishing his damages by proper evidence. Spaulding & Kimball Co. v. Aetna Chemical Co., 98 Vt. 169, 126 A. 588 (1924), same case 98 Vt. 51, 126 A. 582.

Choice of remedy.

The remedy for loss under an injunction may be by either a motion for assessment or a separate action to enforce the contractual rights created by the terms of the injunction bond. Couture v. Lowery, 122 Vt. 505, 177 A.2d 371, 1962 Vt. LEXIS 128 (1962).

Counsel fees.

An allowance of damages consisting entirely of attorneys’ fees was properly refused upon dissolution of a temporary injunction granted ex parte where substantive right of a plaintiff to the injunction was never examined or questioned and only basis upon which defendant sought recovery of damages was dissolution of the injunction. Sykas v. Alvarez, 126 Vt. 420, 234 A.2d 343, 1967 Vt. LEXIS 212 (1967).

Counsel fees incurred in the Supreme Court are not in general allowable as injunction damages, when the real thing litigated is a right for the protection of which injunction is sought as a remedy. Barre Water Co. v. Carnes, 68 Vt. 23, 33 A. 898 (1895), same case 65 Vt. 626, 27 A. 609, 164 A.L.R. 1110.

Delimitation of right to damages.

This section delimits the right of recovery of damages by a defendant to cases in chancery; it extends no jurisdiction to a law court to assess injunctive damages in a zoning appeal case. In re Crescent Beach Ass'n, 126 Vt. 448, 236 A.2d 497, 1967 Vt. LEXIS 219 (1967).

Dissolution by voluntary discontinuance.

Interlocutory dissolution of an injunction is not, per se, an adjudication that the injunction issued wrongfully. ADE Software Corp. v. Hoffman, 172 Vt. 259, 775 A.2d 896, 2001 Vt. LEXIS 140 (2001).

This section did not apply where an injunction wrongfully procured was dissolved by a voluntary discontinuance of case before expiration of time for defendant to enter his appearance. Powell v. Woodbury, 85 Vt. 504, 83 A. 541, 1912 Vt. LEXIS 212 (1912).

Equitable remedy.

Injunction is distinctly an equitable remedy. In re Crescent Beach Ass'n, 126 Vt. 448, 236 A.2d 497, 1967 Vt. LEXIS 219 (1967).

Power of chancery court to enforce remuneration for losses under an injunction is an inherent power of the courts of chancery, because the right to remuneration is made a condition of the issuance of the injunction; this inherent power is based upon the principle that the party seeking the injunction has availed himself of the process of the court of chancery and must abide by its orders. In re Crescent Beach Ass'n, 126 Vt. 448, 236 A.2d 497, 1967 Vt. LEXIS 219 (1967).

If court has power to make payment of damages a condition on which an injunction issues and to require a bond to secure its performance, it must of necessity have the power to determine the damages. In re Crescent Beach Ass'n, 126 Vt. 448, 236 A.2d 497, 1967 Vt. LEXIS 219 (1967).

Hearing on motion for damages.

Trial court’s decision to deny defendant’s motion for hearing on his entitlement to injunction damages is reviewed under an abuse of discretion standard. ADE Software Corp. v. Hoffman, 172 Vt. 259, 775 A.2d 896, 2001 Vt. LEXIS 140 (2001).

Upon dissolution of an ex parte injunction and discontinuance of action by plaintiff defendant was entitled to hearing on motion for damages for wrongful granting of the injunction, and plaintiff could not foreclose consideration of that issue by his discontinuance. Sykas v. Alvarez, 126 Vt. 420, 234 A.2d 343, 1967 Vt. LEXIS 212 (1967).

Injunction issued wrongfully.

If a court of equity dissolves an injunction because a plaintiff has failed to establish his right in equity to have had the benefit of such relief, the plaintiff is liable for any damage caused by the injunction unjustifiably given. Sykas v. Alvarez, 126 Vt. 420, 234 A.2d 343, 1967 Vt. LEXIS 212 (1967).

Interlocutory dissolution of injunction.

An interlocutory dissolution of an injunction is not, per se, an adjudication that the injunction issued wrongfully, and such dissolution does not, by itself, establish a defendant’s right to damages on theory of wrongful issuance of the injunction. Sykas v. Alvarez, 126 Vt. 420, 234 A.2d 343, 1967 Vt. LEXIS 212 (1967).

Malicious prosecution.

Law dealing with the tort of malicious prosecution requires that jury find malice, lack of probable cause and damages, and permits jury to infer malice from lack of probable cause. Northern Oil Company v. Socony Mobil Oil Company, 347 F.2d 81, 1965 U.S. App. LEXIS 5214 (2d Cir. 1965).

Power of court to assess damages.

The power to enforce remuneration for losses under an injunction was an inherent power of courts of chancery. Couture v. Lowery, 122 Vt. 505, 177 A.2d 371, 1962 Vt. LEXIS 128 (1962).

As between parties to suit, court of chancery had inherent power to assess damages caused by injunction, notwithstanding provisions of this section relating to assessment by reference to master. Houghton v. Grimes, 103 Vt. 54, 151 A. 642 (1930), same case 100 Vt. 99, 135 A. 15, 105 Vt. 230, 164 A. 371, 60 Harv. L. Rev. 468.

Where an injunction restraining the prosecution of a suit at law is dissolved, ordinarily the power to assess injunction damages is inherent in court, independent of statute, and this section was not intended to deprive court of such power. Spaulding & Kimball Co. v. Aetna Chemical Co., 98 Vt. 169, 126 A. 588 (1924), same case 98 Vt. 51, 126 A. 582.

Prior law.

The word “shall”, in former provision of this section that when injunction is dissolved by final decree in favor of enjoined party, that party may recover actual damages caused by wrongful issuance of the injunction, “which shall be ascertained by reference to a master”, is synonymous with “may”, as reference to a master is permissive rather than mandatory. Town of Milton v. Brault, 132 Vt. 377, 320 A.2d 630, 1974 Vt. LEXIS 356 (1974).

Subchapter 5. Receivers

§ 4481. Receivers of goods attached.

When the stock in a manufacturing establishment consisting of articles in the process of manufacture, with or without the materials necessary for the manufacture of the same, hereinafter referred to as “stock,” is taken by virtue of a writ of attachment in a civil action, and cannot be sold without a sacrifice, and cannot be kept without loss and damage, on the motion of a party interested to the presiding judge of the Superior Court in which the action is pending or by complaint to any other Superior judge, the judge may appoint in his or her discretion a competent person to receive the stock so attached, complete the manufacture thereof, dispose of the same on the terms most advantageous to the persons interested, and apply the proceeds under the direction of the judge:

  1. to the payment of necessary expenses incurred by the receiver in the manufacture and sale of the stock;
  2. to the payment of such sum as the judge deems reasonable to the receiver for his or her services;
  3. to the payment of the costs of the proceedings;
  4. the residue shall be applied as though the money were received by the officer, on the sale of the stock, by consent or otherwise, upon the original attachment.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 121, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1332. P.L. § 1299. G.L. § 1540. P.S. § 1288. V.S. § 962. R.L. § 752. G.S. 29, § 65. R.S. 24, § 75.

Amendments

—1973 (Adj. Sess.). In the introductory paragraph, substituted “superior” for “county” preceding “court”.

—1971 (Adj. Sess.). Rephrased and omitted references to equity proceedings and added provisions relating to county court.

§ 4482. Notice of motion or complaint.

Notice shall be given to the parties to the attachment or their attorneys to appear and show cause why the prayer of the motion or complaint should not be granted before the receiver is appointed.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 122, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1333. P.L. § 1300. G.L. § 1541. P.S. § 1289. V.S. § 963. R.L. § 753. G.S. 29, § 66. R.S. 24, § 76.

Amendments

—1971 (Adj. Sess.). Rephrased and substituted “the motion or complaint” for “such petition”.

§ 4483. Receiver’s bond.

Before an order issues for him or her to take possession of such stock, the receiver shall execute and deliver to the clerk of the court issuing the order a bond with sufficient sureties, in such sum as the court directs, conditioned on the faithful execution of his or her trust and a true accounting, under the direction of the court, for the property received under such order.

History

Source.

V.S. 1947, § 1334. P.L. § 1301. G.L. § 1542. P.S. § 1290. V.S. § 964. R.L. § 754. G.S. 29, § 67. R.S. 24, § 77.

§ 4484. Order for possession.

Upon receipt of such bond, under the direction of the court, the clerk of the court shall deliver to the receiver an order to take possession of such stock, proceed in the manufacture and sale of the same as provided by sections 4481-4483 of this title, and require possessors of such stock to deliver same to the receiver. Such order shall be a sufficient warrant to the attaching officer or other possessor of such stock to deliver it to the receiver.

History

Source.

V.S. 1947, § 1335. P.L. § 1302. G.L. § 1543. P.S. § 1291. V.S. § 965. R.L. § 755. G.S. 29, §§ 68, 69. R.S. 24, §§ 78, 79.

§ 4485. Borrowing money.

The presiding judge of the Superior Court in which the action is pending or other Superior judge may authorize the receivers or managers of property in the course of administration in that court, when the interest of the parties or property requires it, to borrow money for the proper and convenient discharge of their duties and on such terms, conditions, limitations, and security as shall to the court seem fit. This section shall not prevent the receivers or managers from borrowing money for temporary purposes.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 123, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1336. P.L. § 1303. G.L. § 1544. P.S. § 1292. V.S. § 966. R.L. § 756. 1866, No. 41 .

Amendments

—1973 (Adj. Sess.). In the first sentence, substituted “superior” for “county” preceding “court”.

—1971 (Adj. Sess.). Rephrased and substituted reference to superior judges for court of chancery.

Subchapter 6. Foreclosure of Mortgages

ANNOTATIONS

Rights of mortgagee.

Under this subchapter, a foreclosure mortgagee obtains full and complete title and has the right to sell the foreclosed property and retain the surplus, if any, if no one redeems the foreclosed property within the prescribed period. Stowe Center, Inc. v. Burlington Savings Bank, 141 Vt. 634, 451 A.2d 1114, 1982 Vt. LEXIS 589 (1982).

Where a foreclosing mortgagee sold the foreclosed property in the fall of 1980, after a certificate of nonredemption had been issued and recorded on July 27, 1978, the mortgagee had obtained full and complete title in the property and had the right to retain any surplus between the value received from the sale and the amount of the debt secured by the mortgage. Stowe Center, Inc. v. Burlington Savings Bank, 141 Vt. 634, 451 A.2d 1114, 1982 Vt. LEXIS 589 (1982).

§§ 4521, 4522. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 4521, 4522. Former §§ 4521, 4522 related to petition and decree for foreclosure of mortgages and procedure by bill.

Such sections are now covered by V.R.C.P. 2, 80.1.

Former § 4521 was derived from 1955, No. 61 ; V.S. 1947, § 1340; P.L. § 1307; G.L. § 1548; 1917, No. 254 , § 1511; P.S. § 1296; V.S. § 970; R.L. § 760; G.S. 29, § 75; 1852, No. 12 , § 1.

Former § 4522 was derived from V.S. 1947, § 1341; P.L. § 1308; G.L. § 1549; P.S. § 1297; V.S. § 971; R.L. § 761; G.S. 29, § 76; 1852, No. 12 , § 2.

§§ 4523-4533a. Repealed. 2011, No. 102 (Adj. Sess.), § 2.

History

Former §§ 4523-4533a. Former § 4523, relating to venue, joinder of parties and recording of mortgages, was derived from 1951, No. 32 , § 2; V.S. 1947, § 1342; 1939, No. 44 , § 1. P.L. § 1309; G.L. § 1550; P.S. § 1298; V.S. § 972; R.L. § 762; 1864, No. 29 and amended by 1961, No. 109 ; 1971, No. 185 (Adj. Sess.), § 124; 1973, No. 193 (Adj. Sess.), § 3; 1999, No. 115 (Adj. Sess.), § 8 and 2009, No. 132 (Adj. Sess.), § 2.

Former § 4524, relating to supplemental judgment joining parties, was derived from V.S. 1947, § 1343; 1939, No. 44 , § 2 and amended by 1971, No. 185 (Adj. Sess.), § 125 and 2005, No. 133 (Adj. Sess.), § 2.

Former § 4525, relating to taxes paid by mortgagee, was derived from V.S. 1947, § 1344; P.L. § 1310; G.L. § 1551; 1917, No. 69 , § 1.

Former § 4526, relating to foreclosure of real or personal property, was derived from V.S. 1947, § 1345; P.L. § 1311; 1925, No. 41 and amended by 1971, No. 185 , (Adj. Sess.), § 126.

Former § 4527, relating to attorney’s fees, was derived from V.S. 1947, § 1346; P.L. § 1312; G.L. § 1552; 1917, No. 70 , § 1 and amended by 1971, No. 185 (Adj. Sess.), § 127.

Former § 4528, relating to decree foreclosing equity of redemption; writ of possession, was derived from V.S. 1947, § 1351; P.L. § 1317; G.L. § 1557; P.S. § 1303; V.S. § 977; R.L. § 767; G.S. 29, § 74; R.S. 24, § 44 and amended by 1967, No. 367 (Adj. Sess.), § 1; 1999, No. 115 (Adj. Sess.), § 7 and 2005, No. 133 (Adj. Sess.), § 3.

Former § 4529, relating to recording of foreclosure of equity of redemption, was derived from V.S. 1947, § 1352; P.L. § 1318; G.L. § 1558; P.S. § 1304; V.S. § 978; R.L. § 768; G.S. 29, § 78; 1859, No. 15 , § 1 and amended by 1971, No. 185 (Adj. Sess.), § 128.

Former § 4530, relating to redemption if copy not recorded, was derived from V.S. 1947, § 1353; P.L. § 1319; G.L. § 1559; P.S. § 1305; V.S. § 979; R.L. § 769; G.S. 29, § 79; 1859, No. 15 , § 2 and amended by 2005, No. 133 (Adj. Sess.), § 4.

Former § 4531, relating to strict foreclosure exception, was derived from 1973, No. 47 , § 1 and amended by 2005, No. 133 (Adj. Sess.), § 5.

Former § 4531a, relating to power of foreclosure sale, was derived from 1973, No. 226 (Adj. Sess.), § 1 and amended by 1993, No. 179 (Adj. Sess.), § 1 and 2009, No. 132 (Adj. Sess.), § 3.

Former § 4532, relating to power of sale; procedures; notices and forms, was derived from 1973, No. 226 (Adj. Sess.), § 2 and amended by 1993, No. 179 (Adj. Sess.), § 2.

Former § 4532a, relating to notice to commissioner of banking, insurance, securities, and health care administration, was derived from 2009, No. 29 , § 2 and amended by 2009, No. 132 (Adj. Sess.), § 5.

Former § 4533, relating to judicial foreclosure procedure after sale, was derived from 1973, No. 226 (Adj. Sess.), § 3 and amended by 1993, No. 179 (Adj. Sess.), § 3.

Former § 4533a, relating to nonjudicial foreclosure procedure after sale, was derived from 1993, No. 179 (Adj. Sess.), § 4.

The former provisions of this subchapter have been substantially recodified in chapter 172 of this title.

Annotations From Former § 4523

Common law.

Conceded issues.

Foreclosure of mortgage.

Rights of tenants.

Annotations From Former § 4525

Payment by mortgagee.

Annotations From Former § 4526

Bankruptcy.

Constitutional law.

Annotations From Former § 4527

Discretion of court.

Annotations From Former § 4528

Conditions.

Effect.

Extension.

Performance.

Writ of possession.

—Generally.

Annotations From Former § 4529

Right of redemption.

Annotations From Former § 4530

Right of redemption.

Annotations From Former § 4531a

Applicability.

Foreclosure based on condominium assessment liens.

Annotations From Former § 4532

Applicability.

Reinstatement.

Annotations From Former § 4533

Construction with other law.

Annotations From Former § 4523

Common law.

Subsection (c) of this section codifies the common law that actions to foreclose a mortgage are equitable in nature. Merchants Bank v. Thibodeau, 143 Vt. 132, 465 A.2d 258, 1983 Vt. LEXIS 497 (1983).

Conceded issues.

Where all facts relevant to foreclosure action, that is, execution of instruments and nonpayment, had been conceded, and trial before advisory jury was only upon counterclaim for cancellation of the instruments due to fraud, duress and lack of consideration, this section’s provision that all proceedings in foreclosure actions shall be before the presiding judge alone and trial shall be without a jury did not apply to the trial. Quazzo v. Quazzo, 136 Vt. 107, 386 A.2d 638, 1978 Vt. LEXIS 697 (1978).

Foreclosure of mortgage.

The foreclosure decree is a final judgment, even though it creates a right to redeem, and, in Vermont, a debtor retains an interest in the property until the period of redemption is over. Mortgage Lenders Network, USA v. Sensenich, 2004 VT 107, 2004 VT 107A, 177 Vt. 592, 873 A.2d 892, 2004 Vt. LEXIS 315 (2004) (mem.).

The mortgagor retains only the contingent equitable right to redeem the property, not full legal title to the property; thus, a foreclosure decree that is not timely appealed precludes the mortgagor, and any other bona fide purchaser, from contesting the validity of the mortgage or the interest of the mortgagee. Mortgage Lenders Network, USA v. Sensenich, 2004 VT 107, 2004 VT 107A, 177 Vt. 592, 873 A.2d 892, 2004 Vt. LEXIS 315 (2004) (mem.).

When a mortgage deed is defectively witnessed under 27 V.S.A. §§ 341(a) and 342, the issuance and recording of a foreclosure decree, without timely appeal, puts all subsequent purchasers on inquiry notice as to the mortgagee’s equitable interest in the subject property; consequently, subsequent purchasers, including a bankruptcy trustee, cannot be considered bona fide purchasers without notice, and thus can acquire only the grantor’s interest “impeded with its attendant equity.” Mortgage Lenders Network, USA v. Sensenich, 2004 VT 107, 2004 VT 107A, 177 Vt. 592, 873 A.2d 892, 2004 Vt. LEXIS 315 (2004) (mem.).

Because a mortgage had not been witnessed as required by Vermont law, the mortgage lien could be avoided under bankruptcy law. Recording a copy of foreclosure proceedings could not cure the fatal defect and create a valid instrument for purposes of constructive notice. Sensenich v. Mortgage Lenders Network, USA, 2001 Bankr. LEXIS 2310 (Bankr. D. Vt. Sept. 21, 2001).

In action filed by bank to foreclose mortgages held by it, where bank alleged that defendants’ interest in the premises was subordinate to its mortgage by virtue of a subrogation agreement between the parties, since defendants’ counterclaim and cross-claim tracked V.R.C.P. 80.1, setting forth the requirements for a complaint seeking foreclosure, and the relief requested was judgment against the other parties for all sums due and foreclosure of the equities of redemption of the other interested parties, defendants’ pleadings constituted a claim for foreclosure; therefore, under subsection (c) of this section it was error for the trial court to grant defendants’ request for a jury trial. Merchants Bank v. Thibodeau, 143 Vt. 132, 465 A.2d 258, 1983 Vt. LEXIS 497 (1983).

Rights of tenants.

Subsection (b) of this section did not foreclose tenants from rights and equities they had acquired under lease which predated mortgagee’s foreclosure filing. Green Mountain Bank v. Bruehl, 148 Vt. 567, 536 A.2d 554, 1987 Vt. LEXIS 547 (1987).

Possessory rights acquired by tenants through extension of lease agreement after mortgagee’s foreclosure filing fell within the ambit of interests encompassed by subsection (b) of this section, notwithstanding the fact that tenants’ original lease predated the filing. Green Mountain Bank v. Bruehl, 148 Vt. 567, 536 A.2d 554, 1987 Vt. LEXIS 547 (1987).

Annotations From Former § 4525

Payment by mortgagee.

Mortgagee, by paying taxes under this section, did not acquire a right of action against owner of equity of redemption as for money paid for his own use. Hewey v. Richards, 116 Vt. 547, 80 A.2d 541, 1951 Vt. LEXIS 129 (1951).

Under this section, mortgagee could pay taxes on mortgaged property and add amount thereof to mortgage debt. Barclay v. Drew, 105 Vt. 280, 166 A. 5, 1933 Vt. LEXIS 217 (1933).

Annotations From Former § 4526

Bankruptcy.

Transfer of property effected following the Vermont strict foreclosure law, 12 V.S.A. §§ 4526 et seq., is not entitled to an automatic presumption of reasonably equivalent value and may be avoided as a fraudulent conveyance under 11 U.S.C.S. § 548(a)(1) and 9 V.S.A. § 2289(a) ; the determination of whether transfers pursuant to the strict foreclosure law are avoidable have to be determined on a case-by-case basis, taking into account not just the debt-to-value ratio but also all the other facts and circumstances surrounding the transfer. Sensenich v. Molleur, 2005 Bankr. LEXIS 196 (Bankr. D. Vt. Jan. 27, 2005).

Constitutional law.

Test for whether foreclosure laws conform to substantive due process is whether they are rationally related to a legitimate State interest, the focus of analysis being on whether State’s interest in burdening a class of people outweighs the due process interests of that class. Dieffenbach v. Attorney General of Vermont, 604 F.2d 187, 1979 U.S. App. LEXIS 12593 (2d Cir. 1979).

Vermont’s strict mortgage foreclosure laws directly engage the State’s judicial power in effectuating foreclosure, and the official acts are sufficient state action to give Federal District Court jurisdiction over mortgagor’s claim that the laws are unconstitutional as in violation of equal protection and due process. Dieffenbach v. Attorney General of Vermont, 604 F.2d 187, 1979 U.S. App. LEXIS 12593 (2d Cir. 1979).

Absent any suggestion that foreclosure laws operate to burden a suspect group or fundamental interest, appropriate standard for analyzing the laws under the Equal Protection Clause is whether they are rationally related to a conceivable legitimate State interest, and in such an economic matter court owes an extraordinary deference to State objectives, almost the equivalent of a strong presumption of constitutionality, and court must uphold any classification based upon facts that can reasonably be conceived to constitute a distinction or difference in state policy. Dieffenbach v. Attorney General of Vermont, 604 F.2d 187, 1979 U.S. App. LEXIS 12593 (2d Cir. 1979).

Vermont strict foreclosure law, alleged to be in violation of due process and equal protection because a mortgagee obtaining possession and selling the property need not turn over to mortgagor any proceeds of a sale in excess of the remaining mortgage debt, is constitutional. Dieffenbach v. Attorney General of Vermont, 604 F.2d 187, 1979 U.S. App. LEXIS 12593 (2d Cir. 1979).

Annotations From Former § 4527

Discretion of court.

Where Chapter 13 debtors and the trustee unsuccessfully sought to void a mortgage of the debtor’s home based on a defect in the mortgage acknowledgement, the mortgage lender was not entitled to an award of attorney’s fees and costs pursuant to a provision in the mortgage because the court, exercising its discretion pursuant to 12 V.S.A. § 4527 , found it unjust to grant such an award where the action was initiated due to an error committed by the lender. In re Stanzione, 2007 Bankr. LEXIS 3283 (Bankr. D. Vt. Sept. 24, 2007), aff'd, 404 B.R. 762, 2009 U.S. Dist. LEXIS 37143 (D. Vt. 2009).

An award of attorney’s fees in a mortgage foreclosure action is discretionary; courts may allow only such fees as are just, even where a mortgage deed contains an agreement that mortgagor will pay mortgagee’s attorney’s fees in the event of foreclosure. Retrovest Associates v. Bryant, 153 Vt. 493, 573 A.2d 281, 1990 Vt. LEXIS 39 (1990).

Annotations From Former § 4528

Conditions.

The setting of the time and terms under which redemption can be had is a duty of the chancellor, to be carried out with due discretion on the basis of the pleadings, evidence and positions taken by the parties. Aldrich v. Lincoln Land Corp., 130 Vt. 372, 294 A.2d 853, 1972 Vt. LEXIS 285 (1972).

Effect.

The right of redemption attaches to any transaction involving a mortgage, and operates to postpone enforcement of the lien. Aldrich v. Lincoln Land Corp., 130 Vt. 372, 294 A.2d 853, 1972 Vt. LEXIS 285 (1972).

Extension.

The right of redemption may, when authorized, be extended upon timely application, though it is of necessity a right of limited duration. Aldrich v. Lincoln Land Corp., 130 Vt. 372, 294 A.2d 853, 1972 Vt. LEXIS 285 (1972).

Performance.

The responsibility for complying with the conditions of redemption is on the one seeking the exercise of the right. Aldrich v. Lincoln Land Corp., 130 Vt. 372, 294 A.2d 853, 1972 Vt. LEXIS 285 (1972).

The intervention of circumstances outside the control or expectation of one having a right of redemption may excuse a minor variation from performance, but nonperformance for reasons for which he is chargeable, including carelessness and inadvertence, will not generate equitable relief. Aldrich v. Lincoln Land Corp., 130 Vt. 372, 294 A.2d 853, 1972 Vt. LEXIS 285 (1972).

Acceptance of a payment outside the terms of a redemption order may enlarge or reopen the right of redemption. Aldrich v. Lincoln Land Corp., 130 Vt. 372, 294 A.2d 853, 1972 Vt. LEXIS 285 (1972).

Writ of possession.

Use of word “may” in statute governing writs of possession did not mean that clerk of Superior Court had judicial discretion to refuse to issue writ in some cases, despite failure to redeem; rather, since language referred to clerk and not to court or judge, proper construction was that statute provided authority to clerk to issue the writ, which was available as of right to the foreclosure plaintiff. Vermont Tenants, Inc. v. Vermont Housing Finance Agency, 170 Vt. 77, 742 A.2d 745, 1999 Vt. LEXIS 313 (1999).

—Generally.

The right of redemption is a device that removes a foreclosure from the condemnation of forfeiture. Aldrich v. Lincoln Land Corp., 130 Vt. 372, 294 A.2d 853, 1972 Vt. LEXIS 285 (1972).

Annotations From Former § 4529

Right of redemption.

The right of redemption is a property right in the sense of a property interest, and, therefore, until the redemption period actually expires, the debtor holds a property right. In re Shea Realty, Inc., 21 B.R. 790, 1982 Bankr. LEXIS 3780 (Bankr. D. Vt. 1982), disapproved, Johnson v. First Nat'l Bank, 719 F.2d 270, 1983 U.S. App. LEXIS 16169 (8th Cir. 1983).

In bankruptcy proceedings, effect of automatic stay provision of 11 U.S.C. § 362(a) is to suspend running of the redemption period set forth in this section upon filing of bankruptcy petition by debtor until stay is lifted. In re Shea Realty, Inc., 21 B.R. 790, 1982 Bankr. LEXIS 3780 (Bankr. D. Vt. 1982), disapproved, Johnson v. First Nat'l Bank, 719 F.2d 270, 1983 U.S. App. LEXIS 16169 (8th Cir. 1983).

A trustee in bankruptcy is in the same position as a judicial lien creditor, and the debtor has the same rights and powers as a trustee; consequently, until a judgment decree of foreclosure is recorded pursuant to section 4530 of this title, the debtor may exercise its right of redemption. In re Shea Realty, Inc., 21 B.R. 790, 1982 Bankr. LEXIS 3780 (Bankr. D. Vt. 1982), disapproved, Johnson v. First Nat'l Bank, 719 F.2d 270, 1983 U.S. App. LEXIS 16169 (8th Cir. 1983); In re L.H. & A. Realty, Inc., 24 B.R. 81, 1982 Bankr. LEXIS 3212 (Bankr. D. Vt. 1982).

Annotations From Former § 4530

Right of redemption.

A trustee in bankruptcy is in the same position as a judicial lien creditor, and the debtor has the same rights and powers as a trustee; consequently, until a judgment decree of foreclosure is recorded pursuant to this section, the debtor may exercise its right of redemption. In re Shea Realty, Inc., 21 B.R. 790, 1982 Bankr. LEXIS 3780 (Bankr. D. Vt. 1982), disapproved, Johnson v. First Nat'l Bank, 719 F.2d 270, 1983 U.S. App. LEXIS 16169 (8th Cir. 1983); In re L.H. & A. Realty, Inc., 24 B.R. 81, 1982 Bankr. LEXIS 3212 (Bankr. D. Vt. 1982).

Annotations From Former § 4531a

Applicability.

Where the mortgage deed at issue in a foreclosure action provided for the power of sale and the defendant indicated that she built equity in the property which she felt should be returned to her in the event of foreclosure, these facts, in light of the parties’ stipulation to invoke the power of sale, were enough to establish that subsection (a) of this section was invoked, and the trial court properly ordered foreclosure by power of sale. Huntington v. McCarty, 174 Vt. 69, 807 A.2d 950, 2002 Vt. LEXIS 146 (2002).

Foreclosure based on condominium assessment liens.

Foreclosures based on condominium assessment liens are subject to the same ten-day permission-to-appeal requirement as mortgage foreclosures. Woodbine Condominium Association v. Lowe, 174 Vt. 457, 806 A.2d 1001, 2002 Vt. LEXIS 143 (2002) (mem.).

Annotations From Former § 4532

Applicability.

Nonjudicial foreclosure statute did not apply where defendant’s action arose not as the result of a mortgagor-mortgagee relationship — but rather because of the provisions of the Uniform Common Interest Ownership Act, which provides a statutory right to a condominium association to institute a nonjudicial foreclosure proceeding for nonpayment of condominium dues. Will v. Mill Condominium Owners' Association, 2004 VT 22, 176 Vt. 380, 848 A.2d 336, 2004 Vt. LEXIS 26 (2004).

Reinstatement.

United States Bankruptcy Court for the District of Vermont concludes that where a State court judgment provides a redemption date associated with a strict foreclosure proceeding, and also provides for a foreclosure sale (thus bringing the redemption periods under the two foreclosure procedures into conflict), and where a sale actually occurs, the foreclosure “event” is the sale and, as a result, the redemption period does not expire until the sale occurs, pursuant to 12 V.S.A § 4532(i). In such a circumstance, the strict foreclosure redemption deadline would have no force and effect. In re Willette, 395 B.R. 308, 2008 Bankr. LEXIS 2921 (Bankr. D. Vt. 2008).

Where a Vermont judgment of foreclosure failed to specify whether the redemption period was based on a strict foreclosure or a foreclosure by sale, the foreclosure “event” was the sale and, pursuant to 12 V.S.A. § 4532(i) , the redemption period did not expire until the sale occurred, and the strict foreclosure redemption deadline had no force and effect. Because the debtor filed her bankruptcy petition three days before the sale occurred, her right to redeem had not expired prior to her filing of the bankruptcy case, she had a contingent equitable interest in her property on the date she filed her Chapter 13 petition, and accordingly, under 11 U.S.C.S. § 1322, the debtor could cure the pre-petition default. In re Willette, 395 B.R. 308, 2008 Bankr. LEXIS 2921 (Bankr. D. Vt. 2008).

Where individuals subject to proceedings under Chapter 13 of 11 U.S.C. (the United States Bankruptcy Code) lost their redemption right after the second mortgagee successfully brought a strict foreclosure proceeding in State court, the right was reinstated by a Federal District Court in the first mortgagee’s subsequent foreclosure proceeding, giving debtors the right to use 11 U.S.C.S. § 1322 to reinstate and cure their mortgage. In re Bartlett, 353 B.R. 398, 2006 Bankr. LEXIS 2917 (Bankr. D. Vt. 2006).

Annotations From Former § 4533

Construction with other law.

District Court did not exceed its allowable discretion by declining to provide farm owner with an evidentiary hearing or oral argument prior to confirmation of foreclosure sale. United States v. Munger, 2000 U.S. App. LEXIS 15809 (2d Cir. June 29, 2000).

Cited.

Cited in Denlinger v. Mudgett, 151 Vt. 208, 559 A.2d 661, 1989 Vt. LEXIS 45 (1989); Vermont Tenants, Inc. v. Vermont Housing Finance Agency, 170 Vt. 77, 742 A.2d 745, 1999 Vt. LEXIS 313 (1999).

Cited.

Cited in In re Weathersfield Farms, Inc., 34 B.R. 435, 1983 Bankr. LEXIS 5368 (Bankr. D. Vt. 1983); Rutland Savings Bank v. Pyle, 146 Vt. 189, 499 A.2d 770, 1985 Vt. LEXIS 364 (1985); Big G Corp. v. Henry, 148 Vt. 589, 536 A.2d 559, 1987 Vt. LEXIS 558 (1987).

Cited.

Cited in In re L.H. & A. Realty Co., 57 B.R. 265, 1986 Bankr. LEXIS 6815 (Bankr. D. Vt. 1986); Quechee Lakes Corp. v. L.E. Boeske Assocs., 989 F. Supp. 545, 1996 U.S. Dist. LEXIS 22046 (D. Vt. 1996); In re Cavacas, 2004 Bankr. LEXIS 2432 (Bankr. D. Vt. July 22, 2004).

Cited.

Cited in Quechee Lakes Corp. v. L.E. Boeske Assocs., 989 F. Supp. 545, 1996 U.S. Dist. LEXIS 22046 (D. Vt. 1996); In re Cavacas, 2004 Bankr. LEXIS 2432 (Bankr. D. Vt. July 22, 2004).

Cited.

Cited in Rutland Savings Bank v. Pyle, 146 Vt. 189, 499 A.2d 770, 1985 Vt. LEXIS 364 (1985); Big G Corp. v. Henry, 148 Vt. 589, 536 A.2d 559, 1987 Vt. LEXIS 558 (1987); Vermont Tenants, Inc. v. Vermont Housing Finance Agency, 170 Vt. 77, 742 A.2d 745, 1999 Vt. LEXIS 313 (1999).

Cited.

Cited in Rutland Savings Bank v. Pyle, 146 Vt. 189, 499 A.2d 770, 1985 Vt. LEXIS 364 (1985); In re Donahue, 221 B.R. 105, 1998 Bankr. LEXIS 632 (Bankr. D. Vt. 1998).

Subchapter 7. Decrees and Records

§§ 4561-4565. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 4561-4565. Former §§ 4561-4565 related to chancery proceedings, decrees and records.

Such sections are now covered by V.R.C.P. 2, 7(b)(2), 58, 69, 70.

Former § 4561 was derived from V.S. 1947, § 1347; P.L. § 1313; G.L. § 1553; P.S. § 1299; V.S. § 973; R.L. § 763; G.S. 29, § 71; R.S. 24, § 29.

Former § 4562 was derived from V.S. 1947, § 1348; P.L. § 1314; G.L. § 1554; P.S. § 1300; V.S. § 974; R.L. § 764; G.S. 29, § 82; 1857, No. 4 .

Former § 4563 was derived from V.S. 1947, § 1349; P.L. § 1315; G.L. § 1555; P.S. § 1301; V.S. § 975; R.L. § 765; G.S. 29, § 72; R.S. 24, § 42.

Former § 4564 was derived from V.S. 1947, § 1350; P.L. § 1316; G.L. § 1556; P.S. § 1302; V.S. § 976; R.L. § 766; G.S. 29, § 73; R.S. 24, § 43; R. 1797, p. 126, § 4.

Former § 4565 was derived from V.S. 1947, § 1354; P.L. § 1320; G.L. § 1560; P.S. § 1306; V.S. § 980; R.L. § 770; G.S. 29, §§ 80, 81; R.S. 24, §§ 81, 82; 1834, No. 3 .

Subchapter 8. Appeals and Review

§ 4601. Appeals in foreclosure actions.

When a judgment is for the foreclosure of a mortgage, permission of the court shall be required for review.

HISTORY: Amended 1959, No. 261 , § 66; 1971, No. 185 (Adj. Sess.), § 129, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1355. P.L. § 1321. 1929, No. 39 . G.L. § 1561. 1917, No. 254 , § 1522. P.S. § 1307. V.S. § 981. R.L. § 771. G.S. 29, § 83. R.S. 24, § 18.

Amendments

—1971 (Adj. Sess.). Section amended generally.

—1959. Deleted provision relating to bill of exceptions and provided for appeal in same manner as from county court.

CROSS REFERENCES

Foreclosure of mortgages, see V.R.C.P. 80.1.

ANNOTATIONS

Appeals governed by county court procedure.

After § 2433 of this title was enacted, appeals in chancery as they had existed prior to 1941 were abolished, procedure for passing causes to Supreme Court through medium of bill of exceptions was substituted therefor, under chapter 103 of this title, and cases dealing with chancery appeals under former practice lost their validity while cases dealing with passing causes from county court became pertinent precedents. Abel's, Inc. v. Newton, 116 Vt. 272, 74 A.2d 481, 1950 Vt. LEXIS 146 (1950).

Bill taken as confessed.

When a bill is taken pro confesso, no appeal lies from the decree and the allegations in the bill are impliedly admitted. Paine v. Slocum, 56 Vt. 504, 1884 Vt. LEXIS 80 (1884).

Court of Chancery could vacate a decree made in consequence of a bill being taken as confessed, so as to permit a defense to the suit upon its merits, but application for this purpose was addressed to discretion of court of chancery, and could not be considered and determined by Supreme Court. Hall v. Lamb, 28 Vt. 85, 1855 Vt. LEXIS 139 (1855).

Where defendant neglected to answer a bill in chancery, agreeably to rules of court, and bill was, on that account, taken as confessed, and a decree was made thereon, the cause was not appealable, though defendant had not neglected to appear. Hart v. Strong, 15 Vt. 377, 1843 Vt. LEXIS 55 (1843).

Discretionary matters.

Appeal of a decree of foreclosure and related issues relating to the parties’ agreements for purchase of real property was properly before the court on appeal, although the purchasers did not seek permission to appeal, as the provision requiring permission to appeal only applied to mortgages which were such on their face or recognized as such by the parties; in the instant matter, the character of the instrument was in issue. Prue v. Royer, 2013 VT 12, 193 Vt. 267, 67 A.3d 895, 2013 Vt. LEXIS 9 (2013).

If the chancellor had granted or denied equitable relief by the exercise of discretion based on equitable considerations, the result was reviewable only upon a clear and affirmative showing of abuse. Johnson v. Johnson, 125 Vt. 470, 218 A.2d 43, 1966 Vt. LEXIS 213 (1966).

Final orders or decrees.

An order overruling demurrer to a bill in equity and giving demurrant leave to replead was not a final order or decree from which an appeal could be taken. Page v. Page’s Adm’r, 91 Vt. 188, 99 A. 780 (1917), same case 93 Vt. 190, 106 A. 774, 94 Vt. 306, 111 A. 398.

Where a bill in chancery to restrain prosecution of action at law against a bank to recover deposits, made by defendant’s attorney, alleged collusion between him and defendant to compel plaintiff to pay the deposits twice, and a temporary injunction was issued, the subsequent dissolution thereof, leaving plaintiff at liberty to take proceedings to establish the alleged conspiracy, was not a “final order,” and so not appealable. Vermont Sav. Bank v. Bailey, 87 Vt. 220, 88 A. 561, 1913 Vt. LEXIS 190 (1913).

Decree in chancery appointing a master to ascertain and report injunction damages, and restraining plaintiffs from delaying, hindering, or preventing defendant from taking and holding possession of the land in controversy “until further order of court,” was interlocutory merely, and so unappealable. McArthur v. Blondin, 86 Vt. 62, 83 A. 468 (1912), same case 84 Vt. 516, 80 A. 663.

A pro forma decree overruling demurrer to a bill in chancery was interlocutory, hence no appeal lay. Taft v. Mossey’s Adm’r, 77 Vt. 165, 59 A. 166 (1904); Jones v. Stearns, 96 Vt. 138, 117 A. 663 (1922), same case 97 Vt. 37, 122 A. 116; St. Albans Hosp. v. Enosburg, 96 Vt. 152, 118 A. 484 (1921), same case 96 Vt. 389, 120 A. 97; Wright & Valley v. Creamery Package Co., 77 Vt. 17, 58 A. 803, 1904 Vt. LEXIS 88 (1904).

A final order or decree is one that settles rights of parties under issues made by pleadings. Nelson v. Brown, 59 Vt. 600, 10 A. 721 (1887); Fitzgerald v. Fitzgerald, 95 Vt. 301, 115 A. 99 (1921), same case 91 Vt. 266, 99 A. 774, 94 Vt. 306, 1 398; Page v. Page’s Adm’r, 91 Vt. 188, 99 A. 780 (1917), same case 93 Vt. 190, A. 774, Vt. 306, 1 398; Sheldon v. Clemmons, 72 Vt. 185, 47 A. 796 (1900), same case 68 Vt. 77, 34 A. 34, 33 A.L.R. 754.

An appeal from the court of chancery will not be heard until the decree of the chancellor has been drawn up and signed. Brown v. Mead, 16 Vt. 148, 1844 Vt. LEXIS 34 (1844).

Foreclosure based on condominium assessment liens.

Foreclosures based on condominium assessment liens are subject to the same ten-day permission-to-appeal requirement as mortgage foreclosures. Woodbine Condominium Association v. Lowe, 174 Vt. 457, 806 A.2d 1001, 2002 Vt. LEXIS 143 (2002) (mem.).

Foreclosure of mortgage.

The appeal procedure of this section is covered by the “foreclosed and redeemed” language of subsection 12 V.S.A. § 2903(c) . Darden v. O'Keefe, 171 Vt. 571, 762 A.2d 852, 2000 Vt. LEXIS 308 (2000) (mem.).

Because the permission requirement of this section applies to appeals of judgment lien enforcement orders, the court had the power to condition permission to appeal on posting a bond, and defendant’s failure to post the bond deprived the Supreme Court of jurisdiction over the appeal. Darden v. O'Keefe, 171 Vt. 571, 762 A.2d 852, 2000 Vt. LEXIS 308 (2000) (mem.).

Legislative policy of promoting the finality of foreclosure judgments would be thwarted if this section could be circumvented simply by filing a motion to reopen weeks or months after the entry of the foreclosure judgment; this is particularly true in situations where the redemption period has expired. Citibank, N.A. v. Groshens, 171 Vt. 639, 768 A.2d 1272, 2000 Vt. LEXIS 392 (2000) (mem.).

Supreme Court is without authority to entertain a purported appeal from a decree of foreclosure where permission from the court below to take the appeal, as required by this section, does not appear in the record. LaDuke Estate v. LaDuke, 126 Vt. 27, 220 A.2d 474, 1966 Vt. LEXIS 155 (1966).

Under this section party to foreclosure proceedings was not entitled to an appeal except by leave of chancellor. Factory Point Nat'l Bank v. Equinox Co., 110 Vt. 277, 5 A.2d 462, 1939 Vt. LEXIS 143 (1939).

In exercise of discretion vested in him by this section, chancellor was authorized to impose reasonable conditions upon his allowance of appeal by defendant in foreclosure proceedings, one of which could be filing of bond to protect plaintiffs. Factory Point Nat'l Bank v. Equinox Co., 110 Vt. 277, 5 A.2d 462, 1939 Vt. LEXIS 143 (1939); Vermont-People's Nat'l Bank v. Robertson, 102 Vt. 379, 148 A. 408, 1930 Vt. LEXIS 131 (1930).

Attempted appeal from decree of foreclosure without permission of chancellor will be dismissed. Ludlow Savings Bank & Trust Co. v. Knight, 91 Vt. 172, 99 A. 633, 1917 Vt. LEXIS 226 (1917).

Appeal from decree of court of chancery sustaining assessment by clerk of sum due in equity upon foreclosure of a real estate mortgage was an appeal from a decree of foreclosure within meaning of this section. Ludlow Savings Bank & Trust Co. v. Knight, 91 Vt. 172, 99 A. 633, 1917 Vt. LEXIS 226 (1917).

This section, regulating appeals in foreclosure cases, applied only to mortgages which were such on their face, or were recognized as such by parties, and not to cases where character of instrument was in issue. Herrick's Adm'r v. Teachout, 74 Vt. 196, 52 A. 432, 1902 Vt. LEXIS 122 (1902).

Jurisdiction.

Failure to comply with this section is jurisdictional and leaves Supreme Court without authority to entertain purported appeal. Denlinger v. Mudgett, 151 Vt. 208, 559 A.2d 661, 1989 Vt. LEXIS 45 (1989).

Notice of appeal.

Notice of appeal from a decree brings whole case, including all questions litigated in court below which affect final decree, if they are briefed, to Supreme Court for review. Century Indemnity Co. v. Mead, 121 Vt. 434, 159 A.2d 325, 1960 Vt. LEXIS 141 (1960).

Only question before Supreme Court, under notice of appeal from decree, where exceptions to findings have been waived, is whether decree is warranted by pleadings and supported by the findings. Century Indemnity Co. v. Mead, 121 Vt. 434, 159 A.2d 325, 1960 Vt. LEXIS 141 (1960).

Review of denial of permission to appeal.

Supreme Court had jurisdiction to consider decision denying defendant permission to appeal from decree of foreclosure because the motion for permission to appeal was denied for untenable reasons. Nationwide Mutual Fire Insurance Co. v. Gamelin, 173 Vt. 45, 786 A.2d 1078, 2001 Vt. LEXIS 278 (2001).

Where trial court did not indicate reasons for denying defendants’ request to appeal grant of foreclosure petition, Supreme Court was unable to evaluate the court’s reasons for denying permission; as such, Supreme Court decided to consider matter, notwithstanding denial. Capital Impact Corp. v. Munro, 162 Vt. 6, 642 A.2d 1175, 1992 Vt. LEXIS 218 (1992).

Although, under this section, the trial court’s permission is required for review of judgments of foreclosure, the Supreme Court retains jurisdiction to review a trial court’s denial of a mortgagor’s motion for permission to appeal under an abuse of discretion standard. Vermont National Bank v. Clark, 156 Vt. 143, 588 A.2d 621, 1991 Vt. LEXIS 32 (1991).

Trial court abused its discretion in denying permission to appeal judgment of foreclosure; the denial was based on mistaken understanding, which was prejudicial to the defendants, that in foreclosure actions the law precluded assertion of affirmative defenses concerning mortgagee’s conduct prior to the creation of the mortgage. Vermont National Bank v. Clark, 156 Vt. 143, 588 A.2d 621, 1991 Vt. LEXIS 32 (1991).

Time for filing exceptions.

Time for filing a bill of exceptions in all causes to be passed from Court of Chancery to Supreme Court was governed entirely by § 2424 of this title. Notte v. Rutland R.R., 112 Vt. 305, 23 A.2d 626, 1942 Vt. LEXIS 119 (1942).

Cited.

Cited in Stowe Center, Inc. v. Burlington Savings Bank, 141 Vt. 634, 451 A.2d 1114, 1982 Vt. LEXIS 589 (1982); Cattle Investors Management Corp. v. Poutre, 148 Vt. 508, 535 A.2d 787, 1987 Vt. LEXIS 533 (1987).

§§ 4602-4613. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 4602-4613. Former §§ 4602-4613 related to chancery proceedings, appeals and review. Prior to repeal former § 4602 was amended by 1959, No. 261 , § 67 and former § 4603 was repealed by 1959, No. 261 , § 68.

Such sections are now covered by V.R.C.P. 2, 36, 41, 54(b), 60(b), 62(g); V.R.A.P. 5, 40.

Former § 4602 was derived from V.S. 1947, § 1356; P.L. § 1322; G.L. § 1562; P.S. § 1308; V.S. § 982; R.L. § 772; 1865, No. 9 , § 3.

Former § 4603 was derived from V.S. 1947, § 1357; P.L. § 1323; G.L. § 1563; 1917, No. 254 , § 1524; P.S. § 1309; V.S. § 983; 1892, No. 28 , § 2; R.L. § 773; G.S. 29, § 84; R.S. 24, § 19.

Former § 4604 was derived from V.S. 1947, § 1358; P.L. § 1324; G.L. § 1564; P.S. § 1310; V.S. § 984; R.L. § 774; 1865, No. 9 , §§ 1, 2; G.S. 29, § 85; R.S. 24, § 20.

Former § 4605 was derived from V.S. 1947, § 1359; 1937, No. 39 ; P.L. § 1325; G.L. § 1565; P.S. § 1311; V.S. § 985; R.L. § 775; G.S. 29, § 86; R.S. 24, § 21.

Former § 4606 was derived from V.S. 1947, § 1360; P.L. § 1326; G.L. § 1566; P.S. § 1312; V.S. § 987; R.L. § 776; 1865, No. 9 , § 4.

Former § 4607 was derived from V.S. 1947, § 1361; P.L. § 1327; G.L. § 1567; P.S. § 1313; 1904, No. 55 , § 1.

Former § 4608 was derived from V.S. 1947, § 1362; P.L. § 1328; G.L. § 1568; P.S. § 1314; 1904, No. 55 , § 1.

Former § 4609 was derived from V.S. 1947, § 1363; P.L. § 1329; G.L. § 1569; P.S. § 1315; 1904, No. 55 , § 1.

Former § 4610 was derived from V.S. 1947, § 1364; P.L. § 1330; G.L. § 1570; P.S. § 1316; 1904, No. 55 , § 1.

Former § 4611 was derived from V.S. 1947, § 1365; P.L. § 1331; G.L. § 1571; P.S. § 1317; 1904, No. 55 , § 2.

Former § 4612 was derived from V.S. 1947, § 1366; P.L. § 1332; G.L. § 1572; P.S. § 1318; 1904, No. 55 , § 2.

Former § 4613 was derived from V.S. 1947, § 1367; P.L. § 1333; G.L. § 1573; P.S. § 1319; V.S. § 988; R.L. § 777; G.S. 29, § 87; R.S. 24, § 22.

Subchapter 9. Mediation in Foreclosure Actions

History

Revision note

—2009 (Adj. Sess.) The sections of this subchapter, as enacted in 2009, No. 132 (Adj. Sess.), § 4, were originally designated as sections 4701-4707. In order to conform with V.S.A codification, they were redesignated as sections 4631-4637.

Repeal of sunset provision. 2009, No. 132 (Adj. Sess.), § 13, provided: “Secs. 1 [which amended V.R.C.P. 80.1], 2 [which amended 12 V.S.A. § 4523 ], 3 [which amended 12 V.S.A. § 4531a ], 4 [which enacted this subchapter consisting of §§ 4701-4707 and redesignated as §§ 4631-4637], and 5 [which amended 12 V.S.A. 4532a] of this act shall be repealed on the same day as the expiration date of the federal Home Affordability Modification Program (‘HAMP’).” The expiration date of the program was December 31, 2012. This sunset provision was repealed by 2013, No. 8 , § 3, effective April 26, 2013.

§ 4631. Mediation program established.

  1. This subchapter establishes a program to assure the availability of mediation and application of government loss mitigation program requirements in actions for foreclosure of a mortgage on any dwelling house of four units or less that is occupied by the owner as a principal residence.
  2. The requirements of this subchapter shall apply to all foreclosure actions on dwelling houses of four units or less that are occupied by the owner as a principal residence unless:
    1. the loan involved is not subject to any government loss mitigation program requirements;
    2. prior to commencing the foreclosure action, the mortgagee or a representative of the mortgagee met with or made reasonable efforts to meet with the mortgagor in person in Vermont to discuss any applicable loss mitigation options; and
    3. the plaintiff in the foreclosure action certifies in a separate document filed with its complaint that the requirements of subdivisions (1) and (2) of this subsection have been satisfied and describes its efforts to meet with the mortgagor in person to discuss applicable loss mitigation efforts.
  3. To be qualified to act as a mediator under this subchapter, an individual shall be licensed to practice law in the State and shall be periodically required to take specialized, continuing legal education training courses on foreclosure prevention or loss mitigation approved by the Vermont Bar Association.
  4. This subchapter shall not apply to a commercial loan.
  5. As used in this subchapter:
    1. “Commercial loan” means any loan described in 9 V.S.A. § 46(1) , (2), or (3).
    2. “Government loss mitigation program” means:
      1. the federal Home Affordable Modification Program (HAMP);
      2. any loss mitigation program for loans owned or guaranteed by government-sponsored entities such as the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac), the U.S. Federal Housing Administration, or the U.S. Department of Veterans Affairs;
      3. any loss mitigation program for loans guaranteed by the U.S. Department of Agriculture-Rural Development that are not owned by an instrumentality of the United States or the State of Vermont; or
      4. a settlement agreement with a government entity, or any state or federal law or regulation, regarding the notification, consideration, or offer of loss mitigation options.

HISTORY: Added 2009, No. 132 (Adj. Sess.), § 4; amended 2013, No. 8 , § 1, eff. Dec. 1, 2013.

History

Amendments

—2013. Subsec. (a): Substituted “government loss mitigation program” for “the federal Home Affordable Modification Program (“HAMP”)”.

Subsec. (b): Substituted “to all foreclosure actions on dwelling houses of four units or less that are occupied by the owner as a principal residence unless:” for “only to foreclosure actions involving loans that are subject to the federal HAMP guidelines” following “shall apply”.

Subdivs. (b)(1) to (b)(3): Added.

Subsec. (c): Substituted “to take specialized” for “to have taken a specialized”, and “training courses” for “training course” and inserted “periodically” following “shall be”.

Subsecs. (d) and (e): Added.

§ 4632. Opportunity to mediate.

  1. In an action for foreclosure subject to this subchapter, whenever the mortgagor requests mediation prior to four months after judgment is entered and before the end of the redemption period specified in the decree, the court shall refer the case to mediation pursuant to this subchapter, except that the court may:
    1. for good cause, shorten the four-month period or thereafter decline to order mediation; or
    2. decline to order mediation if the mortgagor requests mediation after judgment has been entered and the court determines that the mortgagor is attempting to delay the case, or the court may for good cause decline to order mediation if the mortgagor requests mediation after judgment has been entered.
  2. Unless the mortgagee and mortgagor agree otherwise or the court so orders for good cause shown, all mediation shall be completed prior to the expiration of the redemption period specified in the decree and within 120 days of the mediator’s appointment. The redemption period shall not be stayed on account of pending mediation.
  3. In an action for foreclosure of a mortgage subject to this subchapter, the mortgagee shall serve upon the mortgagor two copies of the notice described in subsection (d) of this section with the summons and complaint. The Supreme Court may by rule consolidate this notice with other foreclosure-related notices as long as the consolidation is consistent with the content and format of the notice under this subsection.
  4. The notice required by subsection (c) of this section shall:
    1. be on a form approved by the Court Administrator;
    2. advise the homeowner of the homeowner’s rights in foreclosure proceedings under this subchapter;
    3. state the importance of participating in mediation even if the homeowner is currently communicating with the mortgagee or servicer;
    4. provide contact information for legal services; and
    5. incorporate a form that can be used by the homeowner to request mediation from the court.
  5. The Vermont Bar Association (VBA) shall have the authority to establish a fair and neutral mediator-selection process. If the mortgagee and mortgagor are unable to select a mediator through the selection process established by the VBA, the court shall appoint a qualified mediator for the case.

HISTORY: Added 2009, No. 132 (Adj. Sess.), § 4; amended 2013, No. 8 , § 1, eff. Dec. 1, 2013.

History

Amendments

—2013. Section amended generally.

§ 4633. Mediation.

  1. During all mediations under this subchapter:
    1. The parties shall address the available foreclosure prevention tools and, if disputed, the amount due on the note for the principal, interest, and costs or fees.
    2. The mortgagee shall use and consider available foreclosure prevention tools, including reinstatement, loan modification, forbearance, and short sale, and the applicable government loss mitigation program requirements and any related “net present value” calculations used in considering a loan modification conducted under this subchapter.
    3. The mortgagee shall produce for the mortgagor and mediator:
      1. if a modification or other agreement is not offered, an explanation why the mortgagor was not offered a modification or other agreement; and
      2. for any applicable government loss mitigation program, the criteria for the program and the inputs and calculations used in determining the homeowner’s eligibility for a modification or other program.
    4. Where the mortgagee claims that a pooling and servicing or other similar agreement prohibits modification, the mortgagee shall produce a copy of the agreement. All agreement documents shall be confidential and shall not be included in the mediator’s report.
    1. In all mediations under this subchapter, the mortgagor shall make a good faith effort to provide to the mediator within a time determined by the court or mediator information on his or her household income, and any other information required by any applicable government loss mitigation program. (b) (1) In all mediations under this subchapter, the mortgagor shall make a good faith effort to provide to the mediator within a time determined by the court or mediator information on his or her household income, and any other information required by any applicable government loss mitigation program.
    2. Within 45 days of appointment, the mediator shall hold a premediation telephone conference to help the mortgagee and mortgagor complete any necessary document exchange and address other premediation issues. At the premediation telephone conference, the mediator shall at a minimum document and maintain records of the progress the mortgagee and mortgagor are making on financial document production, any review of information that occurs during the conference, any request for additional information, the anticipated time frame for submission of any additional information and the lender’s review of the information, the scheduling of the mediation session, and which of the persons identified in subdivision (d)(1) of this section will be present in person at the mediation or that the parties and the mediator have agreed pursuant to subsection (e) of this section that personal presence at the mediation is not required.
    3. During the mediation, the mediator shall document and maintain records of:
      1. agreements about information submitted to the mediator;
      2. whether a modification or other foreclosure alternative is available and, if so, the terms of the modification;
      3. if a modification or other foreclosure alternative is not available, the reasons for the unavailability; and
      4. the steps necessary to finalize the mediation.
  2. The parties to a mediation under this subchapter shall cooperate in good faith under the direction of the mediator to produce the information required by subsections (a) and (b) of this section in a timely manner so as to permit the mediation process to function effectively.
    1. The following persons shall participate in person or by telephone in any mediation under this subchapter: (d) (1) The following persons shall participate in person or by telephone in any mediation under this subchapter:
      1. the mortgagee, or any other person, including the mortgagee’s servicing agent, who meets the qualifications required by subdivision (2) of this subsection (d);
      2. counsel for the mortgagee; and
      3. the mortgagor, and counsel for the mortgagor, if represented.
    2. The mortgagee or mortgagee’s servicing agent, if present, shall have:
      1. authority to agree to a proposed settlement, loan modification, or dismissal of the foreclosure action;
      2. real-time access during the mediation to the mortgagor’s account information and to the records relating to consideration of the options available in subdivisions (a)(2) and (a)(3) of this section, including the data and factors considered in evaluating each such foreclosure prevention tool; and
      3. the ability and authority to perform government loss mitigation program-related “net present value” calculations and to consider other options available in subdivisions (a)(2) and (a)(3) of this section during the mediation.
  3. The mediator may permit a party identified in subdivision (d)(1) of this section to participate in mediation by telephone or videoconferencing. The mortgagee and mortgagor shall each have at least one of the persons identified in subdivision (d)(1) of this section present in person at the mediation unless all parties and the mediator agree otherwise in writing.
  4. The mediator may include in the mediation process under this subchapter any other person the mediator determines would assist in the mediation.
  5. Unless the mortgagee and mortgagor agree otherwise, all mediations under this subchapter shall take place in the county in which the foreclosure action is brought pursuant to subsection 4932(a) of this title.

HISTORY: Added 2009, No. 132 (Adj. Sess.), § 4; amended 2013, No. 8 , § 1, eff. Dec. 1, 2013.

History

Amendments

—2013. Section amended generally.

§ 4634. Mediation report.

  1. Within seven days of the conclusion of any mediation under this subchapter, the mediator shall report in writing the results of the process to the court and both parties, and shall provide a copy of the report to the Office of the Attorney General for data collection purposes. The report submitted to the Attorney General’s office shall include, in addition to the information identified in subsection (b) of this section, all applicable government loss mitigation program criteria, inputs, and calculations performed prior to or during the mediation and all information related to the requirements in subsection 4633(a) of this title. The report submitted to the Attorney General’s office shall be confidential, and shall be exempt from public copying and inspection under 1 V.S.A. § 317 , provided that any public report by the Attorney General may include information in aggregate form.
  2. The report required by subsection (a) of this section shall not disclose the mediator’s assessment of any aspect of the case or substantive matters discussed during the mediation, except as is required to report the information required by this section. The report shall contain all of the following items:
    1. The date on which the mediation was held, including the starting and finishing times.
    2. The names and addresses of all persons attending, showing their role in the mediation and specifically identifying the representative of each party who had decision-making authority.
    3. A summary of any substitute arrangement made regarding attendance at the mediation.
    4. [Repealed.]
    5. The results of the mediation, stating whether full or partial settlement was reached and appending any agreement of the parties.
      1. A statement as to whether any person required under subsection 4633(d) of this title to participate in the mediation failed to: (6) (A) A statement as to whether any person required under subsection 4633(d) of this title to participate in the mediation failed to:
        1. attend the mediation;
        2. make a good faith effort to mediate; or
        3. supply documentation, information, or data as required by subsections 4633(a)-(c) of this title.
      2. If a statement is made under subdivision (A) of this subdivision (6), it shall be accompanied by a brief description of the applicable reason for the statement.

HISTORY: Added 2009, No. 132 (Adj. Sess.), § 4; amended 2013, No. 8 , § 1; 2015, No. 23 , § 145.

History

Revision note

—2011. In subdiv. (b)(6)(A)(iii), substituted “4633(a)-(c)” for “4703(a)-(c)” to correct the internal references and for purposes of clarity.

Amendments

—2015. Subsec. (b): Added subdiv. (6) designation preceding subdiv. (A).

—2013. Section amended generally.

§ 4635. Compliance with obligations.

  1. Upon receipt of a mediator’s report required by subsection 4634(a) of this title, the court shall determine whether the mortgagee or servicer has complied with all of its obligations under subsection 4633(a) of this title, and, at a minimum, with any applicable government loss mitigation program requirements. The court may make such a determination without a hearing unless the court, in its discretion, determines that a hearing is necessary.
  2. If the mediator’s report includes a statement under subdivision 4634(b)(6) of this title, or if the court makes a determination of noncompliance with the requirements under subsection 4635(a) of this title, the court may impose appropriate sanctions against the noncomplying party, including:
    1. tolling of interest, fees, and costs;
    2. reasonable attorney’s fees;
    3. monetary sanctions;
    4. dismissal without prejudice; and
    5. prohibiting the mortgagee from selling or taking possession of the property that is the subject of the action with or without opportunity to cure as the court deems appropriate.
  3. No mediator shall be required to testify in an action subject to this subchapter.

HISTORY: Added 2009, No. 132 (Adj. Sess.), § 4; amended 2013, No. 8 , § 1.

History

Amendments

—2013. Subsec. (a): Substituted “applicable government loss mitigation program requirements” for “modification obligations under HAMP” at the end of the first sentence.

Subsec. (b): Substituted “4634(b)(6)” for “4635(b)(6)”, “requirements” for “obligations” preceding “under subsection 4635(a) of this title, the court may impose appropriate sanctions” and added “against the noncomplying party, including” thereafter; and added subdivs. (1) through (4).

§ 4636. Repealed. 2013, No. 8, § 1, eff. December 1, 2013.

History

Former § 4636. Former § 4636, relating to the effect of the mediation program on foreclosure actions filed prior to effective date, was derived from 2009, No. 132 (Adj. Sess.), § 4.

§ 4637. No waiver of rights; costs of mediation.

  1. The parties’ rights in a foreclosure action are not waived by their participation in mediation under this subchapter.
  2. The mortgagee shall pay the required costs for any mediation under this subchapter except that the mortgagor shall be responsible for the mortgagor’s own costs, including the cost of the mortgagor’s attorney, if any, and travel costs.
  3. If the foreclosure action results in a sale with a surplus, the mortgagee may recover the full cost of mediation to the extent of the surplus. Otherwise, the mortgagee may not shift to the mortgagor the costs of the mortgagee’s or the servicing agent’s attorney’s fees or travel costs related to mediation but may shift up to one-half of the costs of the mediator.

HISTORY: Added 2009, No. 132 (Adj. Sess.), § 4.

Chapter 165. Confession of Judgment

§ 4671. Justice may take confession of judgment.

A justice may accept and record a confession of a debt to a creditor made by a debtor personally, either with or without antecedent process, as the parties shall agree, and render judgment on such confession; but such judgment shall not be rendered except upon a specification in writing filed with such justice, setting forth the claim upon which the judgment is rendered.

History

Source.

V.S. 1947, § 1480. P.L. § 1446. G.L. § 1666. P.S. § 1398. V.S. § 1048. R.L. § 829. G.S. 31, § 21. R.S. 26, § 9. R. 1797, p. 424, § 21. 1789, p. 12. R. 1787, p. 86.

ANNOTATIONS

Agreement of parties.

Judgment based on confession made by debtor without request or consent of creditor, and entered at instance of debtor alone, is void unless creditor ratifies or accepts it. Mason v. Ward, 80 Vt. 290, 67 A. 820, 1907 Vt. LEXIS 103 (1907).

Construction.

Judgments on confession without antecedent process are based exclusively on statute; a full compliance with statutory requirements is necessary to their validity; and provisions authorizing them are to be strictly construed. Mason v. Ward, 80 Vt. 290, 67 A. 820, 1907 Vt. LEXIS 103 (1907).

Judgments.

Where record of justice showed a judgment by confession, parol evidence offered by a subsequent attaching creditor to show that the defendant never appeared personally before the justice was inadmissible, the record of the judgment being conclusive. Farr v. Ladd, 37 Vt. 156, 1864 Vt. LEXIS 74 (1864).

Jurisdiction.

Where judgment is rendered by confession of debtor before a justice of the peace amount will make no difference, as far as question of jurisdiction is concerned. Hubbard v. Fisher, 25 Vt. 539, 1853 Vt. LEXIS 83 (1853).

Parties.

One partner alone cannot legally confess judgment against the firm. James A. Shedd & Co. v. Bank of Brattleboro, 32 Vt. 709, 1860 Vt. LEXIS 30 (1860).

Specification.

Clause requiring creditor to file specification of his claim assumes that judgment has been agreed upon, and is designed merely to insure statement of cause of action to be merged therein, and no authority exists to compel creditor to file such specification. Mason v. Ward, 80 Vt. 290, 67 A. 820, 1907 Vt. LEXIS 103 (1907).

§ 4672. Effect on attachments.

A judgment so rendered by confession, after the commencement of the suit, shall have the same effect to hold property attached or bail taken on mesne process, as if judgment had been rendered in the ordinary course of proceedings; but a confession of judgment by a debtor, after an action commenced against him or her, shall not be effectual to hold property attached where the same property has been subsequently attached by other creditors, as against them, unless the consent of all subsequent attaching creditors to such confession has been previously obtained in writing.

History

Source.

V.S. 1947, § 1481. P.L. § 1447. G.L. § 1667. P.S. § 1399. V.S. § 1049. R.L. § 830. G.S. 125, § 5. 1859, No. 10 . R.S. 106, § 5.

§ 4673. Trustee actions.

In an action in which a trustee is summoned, the plaintiff may accept the tender of confession of judgment by the defendant therein without prejudice to such action. Upon filing the same in court, the cause shall proceed as if it were made in open court.

History

Source.

V.S. 1947, § 1482. P.L. § 1448. G.L. § 1668. P.S. § 1400. V.S. § 1050. R.L. § 831. G.S. 125, § 6. 1855, No. 9 .

ANNOTATIONS

Prior law.

Confession of judgment before justice of the peace operated as a merger of original cause of action; and before the Act of 1855 the suit could not thereafter proceed against persons summoned as trustees, even though it was expressly understood that plaintiff should not be thereby prejudiced in pursuing trustees. Barnes v. Lapham, 28 Vt. 307, 1856 Vt. LEXIS 28 (1856).

Chapter 167. Declaratory Judgments Act

ANNOTATIONS

Jurisdiction.

Federal court did not have jurisdiction to hear a taxpayer’s request for declaratory and injunctive relief seeking to avoid payment of Vermont’s Electrical Energy Generating Tax (EET), imposed under 32 V.S.A. § 8661 , alleging the tax was unconstitutional, because (1) the taxpayer was able to seek a refund of the tax, and, (2) absent an adequate State administrative remedy, the taxpayer still had a “plain, speedy and efficient” State remedy since the taxpayer’s challenge to the EET could be brought directly in Vermont’s State courts under Vermont’s Declaratory Judgments Act, 12 V.S.A. § 4711 . Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 2012 U.S. Dist. LEXIS 154408 (D. Vt. Oct. 25, 2012), aff'd, 737 F.3d 228, 2013 U.S. App. LEXIS 24559 (2d Cir. 2013).

This chapter provided a procedural vehicle and remedy that was not previously available to litigants, but it did not extend jurisdiction of courts over subject matter or parties, and thus if municipalities did not otherwise have capacity to sue State, this chapter did not provide it. Town of Andover v. State, 170 Vt. 552, 742 A.2d 756, 1999 Vt. LEXIS 321 (1999) (mem.).

Although the Superior Court has general statutory authority to grant declaratory relief, declaratory judgment statutes do not ipso jure vest jurisdiction in the Superior Court over claims jurisdiction over which the legislature has granted to other tribunals. Williams v. State, 156 Vt. 42, 589 A.2d 840, 1990 Vt. LEXIS 271 (1990), cert. denied, 502 U.S. 821, 112 S. Ct. 81, 116 L. Ed. 2d 54, 1991 U.S. LEXIS 5600 (1991), cert. denied, 502 U.S. 984, 112 S. Ct. 590, 116 L. Ed. 2d 614, 1991 U.S. LEXIS 6964 (1991).

This chapter has not increased or enlarged Superior Court jurisdiction. Demag v. American Insurance Cos., 146 Vt. 608, 508 A.2d 697, 1986 Vt. LEXIS 349 (1986); Molesworth v. University of Vermont, 147 Vt. 4, 508 A.2d 722, 1986 Vt. LEXIS 341 (1986).

This chapter does not enlarge the subject matter jurisdiction of the courts. City of Rutland v. McDonald's Corp., 146 Vt. 324, 503 A.2d 1138, 1985 Vt. LEXIS 432 (1985); McGlynn v. Town of Woodbury, 148 Vt. 340, 533 A.2d 1187, 1987 Vt. LEXIS 514 (1987).

Pleadings.

The Vermont Rules of Civil Procedure do not recognize a motion for declaratory judgment; ordinarily, a declaratory judgment action may be brought only as an independent action, a counterclaim or cross-claim. Price v. Leland, 149 Vt. 518, 546 A.2d 793, 1988 Vt. LEXIS 66 (1988).

Where defendants’ “Motion for Declaratory Judgment” was treated, without objection from plaintiff, as a counterclaim for declaratory judgment, it became part of the case as such. Price v. Leland, 149 Vt. 518, 546 A.2d 793, 1988 Vt. LEXIS 66 (1988).

Defendants’ “Motion for Declaratory Judgment,” which satisfied the requirements of a summary judgment motion, would be considered as a motion for summary judgment seeking a declaration of the rights of the parties. Price v. Leland, 149 Vt. 518, 546 A.2d 793, 1988 Vt. LEXIS 66 (1988).

Purpose.

Purpose of Declaratory Judgment Act is to stabilize and quiet relations between parties. C.V. Landfill, Inc. v. Environmental Board, 158 Vt. 386, 610 A.2d 145, 1992 Vt. LEXIS 63 (1992).

Standing to appeal.

In order to establish standing to seek declaratory relief, plaintiff must allege at least the threat of an injury in fact to some protected interest. Richards v. Town of Norwich, 169 Vt. 44, 726 A.2d 81, 1999 Vt. LEXIS 13 (1999).

Landowner’s appeal from selectboard’s approval of his neighbor’s septic system alleged threat of an injury in fact to a protected interest, and was thus sufficient to establish his standing to seek declaratory relief, since it was reasonable to infer that a septic system that not only failed to comply with State standards, but also town’s unapproved standards, would give rise to an invasion of landowner’s right to the use and enjoyment of his property. Richards v. Town of Norwich, 169 Vt. 44, 726 A.2d 81, 1999 Vt. LEXIS 13 (1999).

In a declaratory judgment action brought by plaintiff-insurer against its insured to seek a determination that it did not have to defend or indemnify its insured in a civil action over a shooting death on insured’s property, the administrator of the victim’s estate (the tort-plaintiff in a wrongful death suit brought against the insured), who was added by plaintiff as a defendant in the declaratory action, had standing to appeal the decision of the court finding that plaintiff did not have any duty. If defendant had not been a full party in the declaratory judgment action, he would not have been bound by it, and could have obtained a judgment against the insured tortfeasor and relitigated the question of coverage pursuant to 8 V.S.A. § 4203(3) . Consistent with the remedial purpose of the Declaratory Judgment Act, the only efficient course of action was to join the tort-plaintiff in the declaratory judgment action, give him full-party status, and allow him to appeal because the judgment affected him adversely. Cooperative Fire Insurance Ass'n of Vermont v. Bizon, 166 Vt. 326, 693 A.2d 722, 1997 Vt. LEXIS 35 (1997).

Cited.

Cited in Griffith v. Nielsen, 141 Vt. 423, 449 A.2d 965, 1982 Vt. LEXIS 551 (1982); West v. Village of Morrisville, 728 F.2d 130, 1984 U.S. App. LEXIS 25445 (2d Cir. 1984); Beshaw v. Walton, 144 Vt. 275, 475 A.2d 1084, 1984 Vt. LEXIS 463 (1984); Silverfine v. Town of Bakersfield, 155 Vt. 554, 586 A.2d 554, 1991 Vt. LEXIS 2 (1991); In re Estate of Piche, 166 Vt. 479, 697 A.2d 674, 1997 Vt. LEXIS 108 (1997).

§ 4711. Declaratory judgment; scope.

Superior Courts within their jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. An action or proceeding shall not be open to objection on the grounds that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect. Such declarations shall have the force and effect of a final judgment or decree.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 81, eff. Feb. 1, 2011.

History

Source.

V.S. 1947, § 1629. P.L. § 1589. 1931, No. 37 , § 1.

Revision note—

Reference to “courts of chancery” was omitted pursuant to 1971, No. 185 (Adj. Sess.), § 236. See note set out under 4 V.S.A. § 219 .

Amendments

—2009 (Adj. Sess.). Deleted “and probate courts” preceding “within their” and “respective” thereafter and made a minor change in punctuation in the first sentence.

—1973 (Adj. Sess.). Substituted “Superior” for “County” preceding “courts”.

Short title; Uniform Laws. V.S. 1947, § 1644, derived from P.L. § 1604; 1931, No. 37 , § 16, provided that this chapter may be cited as the Uniform Declaratory Judgments Act.

The Uniform Declaratory Judgments Act was promulgated by the National Conference of Commissioners on Uniform State Laws in 1922.

ANNOTATIONS

Availability of other remedies.

Bare existence of another adequate remedy is not bar to declaratory judgment proceeding where controversy exists and provides insufficient basis for trial court to invoke applicable statute to dismiss complaint. Neal v. Brockway, 136 Vt. 119, 385 A.2d 1069, 1978 Vt. LEXIS 699 (1978).

Where the action does not derive from litigation already commenced, the consequences giving rise to the seeking of declaratory relief must be set out so that the court can see they are based upon a reasonable and realistic expectation of their actual occurrence and not on a concern merely anticipatory of feared. Beecham v. Leahy, 130 Vt. 164, 287 A.2d 836, 1972 Vt. LEXIS 246 (1972).

Where physician was under no compulsion, in any legal sense, to accede to plaintiff’s request for an abortion, he could not challenge constitutionality of abortion statute by way of a declaratory judgment proceeding. Beecham v. Leahy, 130 Vt. 164, 287 A.2d 836, 1972 Vt. LEXIS 246 (1972).

Where pregnant female could not sue the doctor for an action that could not be compelled, performing an abortion, yet was not herself subject to legal action by statutory exemption, she had standing to seek action through a declaratory judgment proceeding. Beecham v. Leahy, 130 Vt. 164, 287 A.2d 836, 1972 Vt. LEXIS 246 (1972).

A declaratory judgment action is the proper avenue to determine ownership of property for tax purposes. San Remo Realty Corporation v. City of Montpelier, 130 Vt. 607, 298 A.2d 810, 1972 Vt. LEXIS 323 (1972).

If question sought to be answered is one of law or jurisdiction of a zoning board of adjustment, it is judicial economy and wisdom to decide the issue by declaratory judgment before administrative channels have been entered or exhausted. Flanders Lumber & Building Supply Co. v. Town of Milton, 128 Vt. 38, 258 A.2d 804, 1969 Vt. LEXIS 200 (1969).

Declaratory judgment act was designed to supply deficiencies in legal procedure which existed before its enactment and was not intended as a substitute for ample remedies in use before its adoption. Glover v. Anderson, 120 Vt. 153, 134 A.2d 612, 1957 Vt. LEXIS 78 (1957).

Where controversy exists, proceeding for declaratory judgment may be maintained even though another remedy is available, subject to right of court to refuse jurisdiction, as provided in § 4716 of this title, where judgment or decree would not terminate uncertainty or controversy giving rise to proceeding. Gifford Memorial Hosp. v. Town of Randolph, 119 Vt. 66, 118 A.2d 480, 1955 Vt. LEXIS 92 (1955).

Proceeding for declaratory judgment is cumulative remedy and jurisdiction is not absolutely barred by the existence of some other remedy. Farm Bureau Mut. Auto. Ins. Co. v. Houle, 118 Vt. 154, 102 A.2d 326, 1954 Vt. LEXIS 93 (1954).

Court of chancery properly assumed jurisdiction in granting declaratory relief to housing developers denied building permits for four lots, even though administrative remedies had not been exhausted as to one of the denials and two of the denials were before the county court on appeal. Farm Bureau Mut. Auto. Ins. Co. v. Houle, 118 Vt. 154, 102 A.2d 326, 1954 Vt. LEXIS 93 (1954).

Burden of proof.

In order to maintain an action for a declaratory judgment to establish title to land plaintiff has burden of proof as to title to land in question. Savard v. George, 125 Vt. 250, 214 A.2d 76, 1965 Vt. LEXIS 234 (1965).

In action for declaratory judgment to determine liability under an insurance policy, the burden of proof rests where it would have rested if the insured had brought an action on the policy. American Fid. Co. v. Hotel Poultney, 118 Vt. 136, 102 A.2d 322, 1954 Vt. LEXIS 90 (1954).

Controversy.

Where unsuccessful candidate and voter sought declaration that promise by successful candidate to divide his salary, when elected, among the fire departments and rescue squads in his district, was void and unenforceable, and injunction against promise being carried out, plaintiffs were not parties to the dispute, their personal or property rights were not adversely affected in manner different from public generally, and therefore, order or judgment would not resolve any presently subsisting justiciable dispute between the parties. Pearl v. Curran, 135 Vt. 171, 376 A.2d 19, 1977 Vt. LEXIS 578 (1977).

The actual controversy required for a declaratory judgment was not shown where tax exemption was sought by disabled veteran, and he, on the face of his complaint, had not established that he was liable for the taxes on the property in question or that any attempt had been made to collect any tax from him for which he was exempt. Robtoy v. City of St. Albans, 132 Vt. 503, 321 A.2d 45, 1974 Vt. LEXIS 377 (1974).

Where complaint for declaratory relief, seeking judgment that complainant was exempt from certain tax, failed to enunciate an actual or justiciable controversy, the judgment could only be limited to denial of the relief requested, and declaration that property was not entitled to tax exemption must be stricken from judgment order. Robtoy v. City of St. Albans, 132 Vt. 503, 321 A.2d 45, 1974 Vt. LEXIS 377 (1974).

A clear controversy existed where, due to boundary dispute, each of two towns claimed the right to tax and did tax part of the land of landowners seeking declaratory judgment as to which town taxes were legally owed. Poulin v. Town of Danville, 128 Vt. 161, 260 A.2d 208, 1969 Vt. LEXIS 219 (1969).

Uniform Declaratory Judgments Act is well suited to a controversy where declaration of rights, as well as equitable relief, is required to stabilize and quiet the relations between parties. Price v. Rowell, 121 Vt. 393, 159 A.2d 622, 1960 Vt. LEXIS 135 (1960).

When declaratory decree will serve a useful purpose in clarifying legal relations of parties or if it will terminate uncertainty and insecurity of controversy, the court should render relief prayed. Commercial Ins. Co. v. Papandrea, 121 Vt. 386, 159 A.2d 333, 1960 Vt. LEXIS 134 (1960).

Declaratory relief may be available to settle disputed issues of fact. Commercial Ins. Co. v. Papandrea, 121 Vt. 386, 159 A.2d 333, 1960 Vt. LEXIS 134 (1960).

Proceeding for declaratory judgment must be based upon actual controversy and claimed result or consequences must be so set forth that court can see they are not based upon fear or anticipation but are reasonably to be expected. Gifford Memorial Hosp. v. Town of Randolph, 119 Vt. 66, 118 A.2d 480, 1955 Vt. LEXIS 92 (1955).

When insured does not cooperate so that insurer may obtain from him an agreement allowing it to defend with reservations, petition for declaratory judgment to determine coverage under the policy may be maintained. Farm Bureau Mut. Auto. Ins. Co. v. Houle, 118 Vt. 154, 102 A.2d 326, 1954 Vt. LEXIS 93 (1954).

Declaration.

In issuing its declaration in an action involving an ancient road, the trial court, which had expressly held that the road was open to the public’s general use and that any use of the land inconsistent with the existence of a town highway should be discontinued, had met the standards of the declaratory judgment statute. It had recognized the existence of a previously laid-out road, noting its course, and had done so with adequate clarity. Benson v. Hodgdon, 2010 VT 11, 187 Vt. 607, 992 A.2d 1053, 2010 Vt. LEXIS 15 (2010) (mem.).

Declaration may be either affirmative or negative in form and effect. Commercial Ins. Co. v. Papandrea, 121 Vt. 386, 159 A.2d 333, 1960 Vt. LEXIS 134 (1960).

Injunctive relief.

Injunctive relief may be granted in a declaratory judgment action. Graves v. Town of Waitsfield, 130 Vt. 292, 292 A.2d 247 (1972), overruling Edwards v. Fugere (1972) 130 Vt. 157, 287 A.2d 582, 1972 Vt. LEXIS 245.

Jurisdiction.

Civil division has original and exclusive jurisdiction of all original civil actions, apart from certain exceptions; moreover, within that general jurisdiction, the divisions of the superior court have the power under the Declaratory Judgment Act to declare rights, status, and other legal relations whether or not further relief is or could be claimed. Hence, the civil division presumptively had jurisdiction over the declaratory judgment action here, and defendant was required to preserve, by raising before the trial court, his contention that the court lacked authority under the circumstances of the case to adjudicate plaintiff’s request for declaratory relief. Burlington School District v. Provost, 2019 VT 87, 211 Vt. 277, 224 A.3d 841, 2019 Vt. LEXIS 172 (2019).

The Declaratory Judgment Act allows parties who have a dispute within a court’s jurisdiction to petition that court for declaratory relief at an early stage of the proceedings; however, the Act does not increase or enlarge the jurisdiction of the court over any subject matter or parties. Vermont State Employees' Ass'n v. Criminal Justice Training Council, 167 Vt. 191, 704 A.2d 769, 1997 Vt. LEXIS 263 (1997).

Prayer for declaratory relief has effect of invoking Superior Court jurisdiction under Declaratory Judgments Act. Neal v. Brockway, 136 Vt. 119, 385 A.2d 1069, 1978 Vt. LEXIS 699 (1978).

Where legislature has provided that certain rights are enforcible in specified tribunals, the declaratory judgments vehicle should not be used to frustrate that legislative choice. Trivento v. Commissioner of Corrections, 135 Vt. 475, 380 A.2d 69, 1977 Vt. LEXIS 660 (1977).

Where part of the trust property is land in the State, the Vermont courts have jurisdiction in a declaratory judgment action of the administration of that part of the trust. Avery v. Bender, 124 Vt. 309, 204 A.2d 314, 1964 Vt. LEXIS 105 (1964).

Uniform Declaratory Judgments Act confers upon county courts, and upon courts of chancery and probate, within their respective jurisdictions, power to adjudicate and declare the rights of the parties in legal controversies, at their inception. Commercial Ins. Co. v. Papandrea, 121 Vt. 386, 159 A.2d 333, 1960 Vt. LEXIS 134 (1960).

Uniform declaratory judgments act has not enlarged the jurisdiction of courts over subject matter or parties, but, in opening to prospective defendants and plaintiffs a right to petition for relief not heretofore possessed, has, in that sense, extended power of courts to grant relief in cases otherwise within their jurisdiction to pass upon. Gifford Memorial Hosp. v. Town of Randolph, 119 Vt. 66, 118 A.2d 480, 1955 Vt. LEXIS 92 (1955); Murray v. Cartmell's Ex'r, 118 Vt. 178, 102 A.2d 853, 1954 Vt. LEXIS 99 (1954).

Petition for declaratory judgment cannot be brought to court of chancery unless such facts are alleged as will give that court jurisdiction of subject matter. Murray v. Cartmell's Ex'r, 118 Vt. 178, 102 A.2d 853, 1954 Vt. LEXIS 99 (1954); Curtis v. O'Brien, 117 Vt. 52, 84 A.2d 584, 1951 Vt. LEXIS 100 (1951).

Jury.

Function of jury in declaratory judgment proceedings is to answer questions of fact, or mixed law and fact submitted to it by the court to aid court in its declaration of rights of parties and not to render verdict upon which judgment is predicated. Fish v. Nationwide Mutual Insurance Co., 126 Vt. 487, 236 A.2d 648, 1967 Vt. LEXIS 226 (1967).

Mootness.

To the extent that a physician sought to compel the Board of Medical Practice to dismiss charges via a declaratory judgment, a mootness analysis applied when the proceedings before the Board had been completed—such a declaration, if it had any effect at all, would be indistinguishable from an injunction, which the courts were unable to provide. Chase v. State, 2008 VT 107, 184 Vt. 430, 966 A.2d 139, 2008 Vt. LEXIS 102 (2008).

Nature of proceeding.

This chapter provided a procedural vehicle and remedy that was not previously available to litigants, but it did not extend jurisdiction of courts over subject matter or parties, and thus if municipalities did not otherwise have capacity to sue State, this chapter did not provide it. Town of Andover v. State, 170 Vt. 552, 742 A.2d 756, 1999 Vt. LEXIS 321 (1999) (mem.).

Relief sought in proceeding under Declaratory Judgment Act is declaration of respective rights of parties within issues presented. Fish v. Nationwide Mutual Insurance Co., 126 Vt. 487, 236 A.2d 648, 1967 Vt. LEXIS 226 (1967).

Action under uniform declaratory judgments act is equitable in nature and is governed by applicable, established rules of pleading. Manchester v. Townshend, 109 Vt. 65, 192 A. 22, 1937 Vt. LEXIS 116 (1937).

Pleading.

Rules of equity pleading apply to action for declaratory judgment brought to the court of chancery. American Fid. Co. v. Hotel Poultney, 118 Vt. 136, 102 A.2d 322, 1954 Vt. LEXIS 90 (1954).

Prerequisites.

Declaratory relief is available only when a party is suffering from the threat of actual injury to a protected legal interest; unless such a justiciable controversy is present, a declaratory judgment is merely an advisory opinion which the Supreme Court lacks authority to render. Doria v. University of Vermont, 156 Vt. 114, 589 A.2d 317, 1991 Vt. LEXIS 31 (1991).

The availability of declaratory relief turns on whether the facts alleged, under all circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Williams v. State, 156 Vt. 42, 589 A.2d 840, 1990 Vt. LEXIS 271 (1990), cert. denied, 502 U.S. 821, 112 S. Ct. 81, 116 L. Ed. 2d 54, 1991 U.S. LEXIS 5600 (1991), cert. denied, 502 U.S. 984, 112 S. Ct. 590, 116 L. Ed. 2d 614, 1991 U.S. LEXIS 6964 (1991).

As a prerequisite to declaratory relief, it is vital that issues raised by allegations in the bill, which have been specifically denied, be established by the trier of the facts. Harte v. Peerless Ins. Co., 123 Vt. 120, 183 A.2d 223, 1962 Vt. LEXIS 208 (1962).

Probate court.

If appropriate or advisable, declaratory judgment procedure is available in the probate court under this section. In re Estate Pierce, 125 Vt. 340, 215 A.2d 505, 1965 Vt. LEXIS 251 (1965).

Purpose.

Declaratory Judgments Act is remedial statute entitled to liberal construction to effectuate its salutary purpose. Neal v. Brockway, 136 Vt. 119, 385 A.2d 1069, 1978 Vt. LEXIS 699 (1978).

Purpose of declaratory judgment is to enunciate, so far as is requested and appropriate, the rights of the parties, and where clarification was not forthcoming in lower court and declaration was not carried out, reversal and remand were required. Shaw v. Barrows, 134 Vt. 343, 359 A.2d 651, 1976 Vt. LEXIS 671 (1976).

The function of a declaratory judgment is to provide a declaration of rights, status and other legal relations of parties to an actual or justiciable controversy, and the claimed result or consequences must be so set forth that the court can see that they are not based upon fear or anticipation, but are reasonably to be expected. Robtoy v. City of St. Albans, 132 Vt. 503, 321 A.2d 45, 1974 Vt. LEXIS 377 (1974).

The function of a declaratory judgment is to provide a declaration of rights status and other legal relations of parties to a justiciable controversy, and if such a controversy is not present, the declaratory judgment can provide no more than an advisory opinion, which the State judiciary does not have the constitutional power to render. Lace v. University of Vermont, 131 Vt. 170, 303 A.2d 475, 1973 Vt. LEXIS 288 (1973).

Purpose of declaratory judgment action is to enunciate, so far as is requested and appropriate, the rights of the parties. Graves v. Town of Waitsfield, 130 Vt. 292, 292 A.2d 247, 1972 Vt. LEXIS 271 (1972).

The declaratory judgment act was designed to supply deficiencies in legal procedure which existed prior to its enactment, and was not intended as a substitute for remedies in use before its enactment. Poulin v. Town of Danville, 128 Vt. 161, 260 A.2d 208, 1969 Vt. LEXIS 219 (1969).

The purpose of a declaratory judgment action is to enunciate, so far as is requested and is appropriate, the rights of all parties. Campbell v. Blair, 127 Vt. 157, 241 A.2d 791, 1968 Vt. LEXIS 192 (1968).

Cited.

Cited in Westover v. Village of Barton Electric Dept., 149 Vt. 356, 543 A.2d 698, 1988 Vt. LEXIS 26 (1988); C.V. Landfill, Inc. v. Environmental Board, 158 Vt. 386, 610 A.2d 145, 1992 Vt. LEXIS 63 (1992); Agency of Natural Resources v. Glens Falls Insurance Co., 169 Vt. 426, 736 A.2d 768, 1999 Vt. LEXIS 205 (1999); Travelers Indemnity Co. v. Wallis, 2003 VT 103, 176 Vt. 167, 845 A.2d 316, 2003 Vt. LEXIS 287 (2003); Baechle v. Town of Mendon, 2005 U.S. Dist. LEXIS 34476 (D. Vt. Dec. 8, 2005).

§ 4712. Party plaintiff; power to construe.

A person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

History

Source.

V.S. 1947, § 1630. P.L. § 1590. 1931, No. 37 , § 2.

ANNOTATIONS

Jurisdiction.

Lessee, who had assigned lease for purposes of collateral security, had sufficient interest under lease and assignment to entitle it to settle the controversy within the meaning and purposes of this section. Rutland Amusement Co. v. Seward, 127 Vt. 324, 248 A.2d 731, 1968 Vt. LEXIS 236 (1968).

In absence of some ground for injunctive relief, such as irreparable damage or threatened trespasses, it is not business of equity to try titles to real estate, and existence of dispute as to boundary between adjoining lands does not afford sufficient ground for court of equity to ascertain and fix the boundary. Curtis v. O'Brien, 117 Vt. 52, 84 A.2d 584, 1951 Vt. LEXIS 100 (1951).

Fact that defendant’s boundary claim prevents plaintiff from disposing of his interest in property does not of itself give equity jurisdiction; nor, in absence of any possessory acts on part of defendant, does plaintiff’s fear that defendant may acquire some rights by adverse possession give equity jurisdiction. Curtis v. O'Brien, 117 Vt. 52, 84 A.2d 584, 1951 Vt. LEXIS 100 (1951).

Under this section a person whose rights, status or other legal relations are affected by statute or municipal ordinance may have determined any question of construction or validity arising under statute or ordinance and obtain declaration as to his rights, status or legal relations thereunder. Vermont Salvage Corp. v. St. Johnsbury, 113 Vt. 341, 34 A.2d 188, 1943 Vt. LEXIS 183 (1943), 62 Harv. L. Rev. 868, 874 (1943).

Quasi in rem action.

An action which seeks a determination by a declaratory judgment of competing interests in trust property part of which is real property located in the State, is a quasi in rem proceeding of the first type. Avery v. Bender, 124 Vt. 309, 204 A.2d 314, 1964 Vt. LEXIS 105 (1964).

Cited.

Cited in Travelers Indemnity Co. v. Wallis, 2003 VT 103, 176 Vt. 167, 845 A.2d 316, 2003 Vt. LEXIS 287 (2003).

§ 4713. Before breach of contracts.

A contract may be construed either before or after there has been a breach thereof.

History

Source.

V.S. 1947, § 1631. P.L. § 1591. 1931, No. 37 , § 3.

ANNOTATIONS

Prior to breach.

Party to contract may obtain judicial construction of his agreement without necessity of prior breach. Commercial Ins. Co. v. Papandrea, 121 Vt. 386, 159 A.2d 333, 1960 Vt. LEXIS 134 (1960).

§ 4714. Fiduciaries; executors.

A person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, a person lacking mental capacity, or a person without financial resources, may have a declaration of rights or legal relations in respect thereto:

  1. to ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; or
  2. to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or
  3. to determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

HISTORY: Amended 2013, No. 96 (Adj. Sess.), § 48.

History

Source.

V.S. 1947, § 1632. P.L. § 1592. 1931, No. 37 , § 4.

Amendments

—2013 (Adj. Sess.). Substituted “a person lacking mental capacity, or a person without financial resources” for “lunatic, or insolvent” following “infant” in the undesignated paragraph, and made minor stylistic changes.

ANNOTATIONS

Actions in rem.

The fact that a defendant is a fiduciary, whose acts may create personal liability, will not, of itself, convert an otherwise “in rem” action into one “in personam”. Avery v. Bender, 124 Vt. 309, 204 A.2d 314, 1964 Vt. LEXIS 105 (1964).

Actions quasi in rem.

Quasi in rem actions are of two types: those that concern an existing interest in the property involved; and those in which the property involved is a random asset to be applied against a personal claim, and where there is present real property in the state, in the form of trust property the subject of competing interests. Avery v. Bender, 124 Vt. 309, 204 A.2d 314, 1964 Vt. LEXIS 105 (1964).

Jurisdiction.

Section does not authorize court of chancery to construe a stipulation arising out of a matter before a probate court. Murray v. Cartmell's Ex'r, 118 Vt. 178, 102 A.2d 853, 1954 Vt. LEXIS 99 (1954).

Modification and rescission of trust.

Surviving wife who was cosettlor as well as a beneficiary of trust was not bound in exercising her power to modify and rescind trust by the original general intention of the trust. Proctor v. Woodhouse, 127 Vt. 148, 241 A.2d 785, 1968 Vt. LEXIS 191 (1968).

Nature of action.

The fact that a defendant in a declaratory judgment action is a fiduciary, whose acts may create personal liability, will not, of itself, convert an otherwise “in rem” action into one “in personam”. Avery v. Bender, 124 Vt. 309, 204 A.2d 314, 1964 Vt. LEXIS 105 (1964).

Law Reviews —

Executors’ and trustees’ bills for instructions, see 44 Yale L.J. 1433, 1435 (1935).

§ 4715. Construction; general powers of court.

The enumeration in sections 4712-4714 of this title does not limit or restrict the exercise of the general powers conferred in section 4711 of this title, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.

History

Source.

V.S. 1947, § 1633. P.L. § 1593. 1931, No. 37 , § 5.

§ 4716. Refusal to enter judgment; discretion of court.

The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.

History

Source.

V.S. 1947, § 1634. P.L. § 1594. 1931, No. 37 , § 6.

§ 4717. Review.

All orders, judgments, and decrees under this chapter may be reviewed as other orders, judgments, and decrees.

History

Source.

V.S. 1947, § 1635. P.L. § 1595. 1931, No. 37 , § 7.

ANNOTATIONS

Findings of fact.

On appeal to Supreme Court for review of findings in an action for a declaratory judgment, the findings will stand if supported by any substantial evidence, although there may be inconsistencies or even substantial evidence to the contrary. Savard v. George, 125 Vt. 250, 214 A.2d 76, 1965 Vt. LEXIS 234 (1965).

§ 4718. Further proceedings.

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. When the application is deemed sufficient, on reasonable notice, the court shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why further relief should not be granted forthwith.

History

Source.

V.S. 1947, § 1636. P.L. § 1596. 1931, No. 37 , § 8.

§ 4719. Jury trial.

When a proceeding under this chapter involves the determination of an issue of fact, or a mixed issue of law and fact, such issue may be tried in the court in which the proceeding is pending and determined in the same manner as issues of fact and mixed issues of law and fact are tried and determined in other civil actions, with the right to trial by jury preserved to the parties, on any issue as to which such right would have existed in an action for affirmative relief.

HISTORY: Amended 1963, No. 176 , § 1; 1971, No. 185 (Adj. Sess.), § 130, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1637. P.L. § 1597. 1931, No. 37 , § 9.

Amendments

—1971 (Adj. Sess.). Omitted provisions relating to waiver in writing and provided jury trial on any issue which such right would have existed in an action for affirmative relief.

—1963. Added mixed issues of law and fact to matters which may be determined and added the provision preserving the right to trial by jury unless waived.

ANNOTATIONS

Issues raising right.

Lessee seeking declaratory judgment of rights of parties to lease purchase contract, who did not exercise option to purchase and sought to have lease declared void due to alleged false representations made to induce him to enter into lease, was entitled, after finding of no false representations, to jury trial on remaining issue, raised by lessors, of damages caused when lessee, without consent, tore down house on property in question. Leech v. Munn, 129 Vt. 575, 285 A.2d 706, 1971 Vt. LEXIS 306 (1971).

Purpose.

Section contemplates the determination of disputed issues of fact. Curtis v. O'Brien, 117 Vt. 52, 84 A.2d 584, 1951 Vt. LEXIS 100 (1951).

Questions for court.

If only questions of law are presented on trial of declaratory judgment action, such questions, as in all civil causes, are for determination only of the court. Fish v. Nationwide Mutual Insurance Co., 126 Vt. 487, 236 A.2d 648, 1967 Vt. LEXIS 226 (1967).

Removal of case from jury.

Where only conflict in evidence in declaratory judgment action to determine liability under property damage provision of policy insuring truck was as to number of feet damaged property had been towed by truck before it was damaged, and determination of number of feet was immaterial to question whether, under circumstances, as matter of law, insured should be denied coverage, case was properly removed from consideration of jury. Fish v. Nationwide Mutual Insurance Co., 126 Vt. 487, 236 A.2d 648, 1967 Vt. LEXIS 226 (1967).

§ 4720. Costs.

In any proceedings under this chapter, the court may make such award of costs as may seem equitable and just.

History

Source.

V.S. 1947, § 1638. P.L. § 1598. 1931, No. 37 , § 10.

ANNOTATIONS

Attorney’s fees.

As used in this section, the term “costs” does not include attorney’s fees. Burlington Drug Co. v. Royal Globe Insurance Co., 616 F. Supp. 481, 1985 U.S. Dist. LEXIS 16816 (D. Vt. 1985).

§ 4721. Parties.

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party and shall be entitled to be heard. If the statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General shall also be served with a copy of the proceeding and be entitled to be heard.

History

Source.

V.S. 1947, § 1639. P.L. § 1599. 1931, No. 37 , § 11.

ANNOTATIONS

Joinder of parties.

In proceeding by landowners for declaratory judgment to resolve boundary dispute and determine to which of two towns taxing plaintiffs land plaintiffs legally owed taxes, a community of interest, allowing joinder of towns as defendants, existed in the subject matter of the litigation, consisting of jurisdiction to tax the land. Poulin v. Town of Danville, 128 Vt. 161, 260 A.2d 208, 1969 Vt. LEXIS 219 (1969).

In equity, there may be joinder of defendants where there is community of interest in questions of law and fact, and only under such situation can there be joinder of defendants under the declaratory judgments act according to established rules of pleading. Manchester v. Townshend, 109 Vt. 65, 192 A. 22, 1937 Vt. LEXIS 116 (1937).

Municipalities.

Statute which required that municipality be made a party in any declaratory judgment proceeding involving validity of a municipal ordinance essentially made town whose ordinance was at issue a “necessary” party within meaning of procedural rule. Lamare v. North Country Animal League, 170 Vt. 115, 743 A.2d 598, 1999 Vt. LEXIS 331 (1999).

Supreme Court could address validity of municipal ordinance notwithstanding trial court’s failure to order joinder of town and consider claims in first instance, since remand would undoubtedly result in a second appeal, issues were fully briefed and argued and carefully considered by Supreme Court, and town did not stand to be prejudiced by Court’s consideration of claims. Lamare v. North Country Animal League, 170 Vt. 115, 743 A.2d 598, 1999 Vt. LEXIS 331 (1999).

Proper parties.

In proceeding brought to obtain declaratory judgment regarding validity of ordinance which might involve criminal prosecution, the grand jurors and chief of police of town enacting ordinance are proper parties. Vermont Salvage Corp. v. St. Johnsbury, 113 Vt. 341, 34 A.2d 188, 1943 Vt. LEXIS 183 (1943), 62 Harv. L. Rev. 868, 874 (1943).

Unnecessary parties.

Town was not a necessary party to action for writ of possession of property purchased at tax sale in which defendants sought declaratory relief, where taxes due on the property had been collected through the mechanism of the tax sale. Price v. Leland, 149 Vt. 518, 546 A.2d 793, 1988 Vt. LEXIS 66 (1988).

Cited.

Cited in Bills v. Wardsboro School District, 150 Vt. 541, 554 A.2d 673, 1988 Vt. LEXIS 200 (1988); Kelly v. Town of Barnard, 155 Vt. 296, 583 A.2d 614, 1990 Vt. LEXIS 186 (1990); McLaughlin v. State, 161 Vt. 492, 642 A.2d 683, 1994 Vt. LEXIS 41 (1994).

§ 4722. Construction.

This chapter is declared to be remedial. Its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations and it is to be liberally construed and administered.

History

Source.

V.S. 1947, § 1640. P.L. § 1600. 1931, No. 37 , § 12.

ANNOTATIONS

Actual controversy.

Findings by the trial court that the dispute over a particular covenant has not been resolved, and that the determination of the meaning of the restrictive covenant was not premature, in conjunction with the history of previous litigation, sufficiently satisfied the “case or controversy” requirement for jurisdictional purposes. Cupola Golf Course, Inc. v. Dooley, 2006 VT 25, 179 Vt. 427, 898 A.2d 134, 2006 Vt. LEXIS 52 (2006).

An action for declaratory relief must be based upon an actual controversy, the claimed result of which is not based upon fear or anticipation, but is reasonably to be expected. Thus, to avoid the probability of an advisory opinion, there must be a “case or controversy.” Cupola Golf Course, Inc. v. Dooley, 2006 VT 25, 179 Vt. 427, 898 A.2d 134, 2006 Vt. LEXIS 52 (2006).

Construction.

As a remedial statute the declaratory judgment act is entitled to liberal construction to effectuate its salutary purpose. Flanders Lumber & Building Supply Co. v. Town of Milton, 128 Vt. 38, 258 A.2d 804, 1969 Vt. LEXIS 200 (1969); Poulin v. Town of Danville, 128 Vt. 161, 260 A.2d 208, 1969 Vt. LEXIS 219 (1969); Farm Bureau Mut. Auto. Ins. Co. v. Houle, 118 Vt. 154, 102 A.2d 326, 1954 Vt. LEXIS 93 (1954).

Purpose.

The declaratory judgment act was designed to supply deficiencies in legal procedure which existed prior to its enactment, and was not intended as a substitute for remedies in use before its enactment. Poulin v. Town of Danville, 128 Vt. 161, 260 A.2d 208, 1969 Vt. LEXIS 219 (1969).

Cited.

Cited in Green Mountain Insurance Co. v. Maine Bonding & Casualty Co., 158 Vt. 200, 608 A.2d 1160, 1992 Vt. LEXIS 34 (1992); Price v. Leland, 149 Vt. 518, 546 A.2d 793, 1988 Vt. LEXIS 66 (1988).

§ 4723. Definition.

The word “person” wherever used in this chapter shall be construed to mean any person, partnership, joint stock company, unincorporated association or society, or municipal or other corporation of any character whatsoever.

History

Source.

V.S. 1947, § 1641. P.L. § 1601. 1931, No. 37 , § 13.

§ 4724. Separability of provisions.

The several sections and provisions of this chapter, except sections 4711 and 4712, are hereby declared independent and severable, and the invalidity, if any, of any part or feature thereof shall not affect or render the remainder of the chapter invalid or inoperative.

History

Source.

V.S. 1947, § 1642. P.L. § 1602. 1931, No. 37 , § 14.

§ 4725. Uniformity of interpretation.

This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and as far as possible to harmonize with federal laws and regulations on the subject of declaratory judgments and decrees.

History

Source.

V.S. 1947, § 1643. P.L. § 1603. 1931, No. 37 , § 15.

ANNOTATIONS

Effect of section.

Under the provisions of this section that uniform declaratory judgments act “shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it,” decisions of the highest courts of other states are, speaking generally, more or less imperatively binding precedents in cases where similar questions are presented. Manchester v. Townshend, 109 Vt. 65, 192 A. 22, 1937 Vt. LEXIS 116 (1937).

Chapter 169. Ejectment

History

Landlords and tenants; housing lenders; temporary housing-related moratoria. 2019, No. 101 (Adj. Sess.), § 1 provides: “(a) Definitions. As used in this section:

“(1) ‘Emergency period’ means the period beginning with the Governor’s declaration of a state of emergency on March 13, 2020, arising from COVID-19, and ending 30 days after the Governor terminates the state of emergency by declaration.

“(2) ‘Ejectment’ refers to an ejectment action brought under 9 V.S.A. chapter 137 and 12 V.S.A. chapter 169 against the tenant of a residential dwelling unit, or under 10 V.S.A. chapter 153 against a mobile home park resident.

“(3)(A) ‘Foreclosure’ refers to a foreclosure action brought under 12 V.S.A. chapter 172 against a dwelling house, as defined in 12 V.S.A. § 4931(2) , that is occupied.

“(B) For purposes of this act, a dwelling house is deemed to be occupied unless all of the following are true:

“(i) There are circumstances that would lead a reasonable person to believe that the dwelling house is not occupied as a full-time residence, including evidence that utilities are disconnected, mail is not being delivered, or the dwelling house is empty of necessary household furnishings.

“(ii) The mortgage on the dwelling house is not current.

“(iii) The mortgagee has made reasonable attempts to ascertain the mortgagor’s residence and has a reasonable belief that the dwelling house is no longer the mortgagor’s residence.

“(b) Duties. This section does not:

“(1) relieve a tenant of the obligation to pay rent pursuant to 9 V.S.A. § 4455 ;

“(2) relieve a tenant in a pending ejectment action of the obligation to pay rent into court pursuant to an existing order under 12 V.S.A. § 4853a ;

“(3) relieve a borrower under a residential loan agreement of the obligation to make timely payments pursuant to the terms of the loan agreement; or

“(4) limit a court’s ability to act in an emergency pursuant to Administrative Order 49, issued by the Vermont Supreme Court, as amended, which may include an action that involves criminal activity, illegal drug activity, or acts of violence, or other circumstances that seriously threaten the health or safety of other residents.

“(c) Pending foreclosure and ejectment actions.

“(1) Upon the effective date of this act, all pending actions for ejectment under 12 V.S.A. chapter 169, actions for foreclosure under 12 V.S.A. chapter 172, and any outstanding orders in those actions that could lead to execution of a writ of possession against a tenant or resident are stayed until the end of the emergency period.

“(2) A court of this State, before which is any matter stayed pursuant to subdivision (1) of this subsection, shall issue any necessary orders and provide notice to the parties of the stay.

“(d) New foreclosure and ejectment actions. During the emergency period, after the effective date of this act, a landlord may commence an ejectment action pursuant to 9 V.S.A. chapter 137 and 12 V.S.A. chapter 169, and a residential mortgage lender may commence a foreclosure action pursuant to 12 V.S.A. chapter 172, subject to the following:

“(1) The plaintiff may commence the action only by filing with the Civil Division of the Superior Court and not by service pursuant to V.R.C.P. 3.

“(2) The court shall stay the action as of the date of filing until the end of the emergency period.

“(3) The plaintiff shall not attempt to serve and a sheriff or constable shall not serve any civil process.

“(4) The deadline for completing service of process pursuant to V.R.C.P. 3 is 60 days after the emergency period ends.

“(e) Writs of possession not yet issued. During the emergency period, a court shall not issue a writ of possession:

“(1) in an ejectment action:

“(A) pursuant to 12 V.S.A. § 4853a(h) because a tenant failed to pay rent into court; or

“(B) pursuant to 12 V.S.A. § 4854 if the court has entered a judgment in favor of the plaintiff but did not issue a writ of possession with the judgment; or

“(2) in a strict foreclosure action pursuant to 12 V.S.A. § 4941(e) because the property is not redeemed; or

“(3) in an action for foreclosure by judicial sale pursuant to 12 V.S.A. § 4946(d) upon expiration of all periods of redemption.

“(f) Writs of possession already issued.

“(1) A writ of possession that was issued by a court prior to the effective date of this act is stayed as of the start date of the emergency period and resumes running when the Governor terminates the state of emergency by declaration.

“(2) If a writ of possession was issued but not executed prior to the effective date of this act, then after the Governor terminates the state of emergency by declaration:

“(A) the plaintiff shall serve or serve again the writ to the defendant; and

“(B) the plaintiff shall be restored to possession not sooner than 14 days after service.

“(g) Rent escrow hearings.

“(1) For any hearing on a motion to order a defendant to pay rent into court that occurs within the first 45 days after the emergency period ends, if the court finds that the tenant is obligated to pay rent and has failed to do so, then notwithstanding 12 V.S.A. § 4853a(d) , the court shall order the defendant to pay into court:

“(A) rent as it accrues from the date of the order while the proceeding is pending; and

“(B) rent accrued from:

“(i) the date the motion was served, if the motion was served after the effective date of this act; or

“(ii) the end of the emergency period, if the motion was served before the effective date of this act.

“(2) The court may reduce the amount of rent the defendant must pay into court under this subsection after considering:

“(A) the tenant’s inability to pay due to circumstances arising in the emergency period; and

“(B) whether the tenant made good faith attempts to secure available emergency rental payment funds.

“(h) Resumption of actions for breach of rental agreement. Notwithstanding any provision of this act to the contrary, an ejectment action for breach of a rental agreement pursuant to 9 V.S.A. § 4467(b) may proceed in court when the Governor terminates the state of emergency by declaration.”

Subchapter 1. General Provisions

§ 4761. When maintainable; parties.

A person having claim to the seisin or possession of lands, tenements, or hereditaments shall have an action of ejectment, according to the nature of the case, which shall be brought as well against the landlord, if any, as against the tenant in possession of the premises, or against a person that is occupying a dwelling unit, for which subleasing is prohibited pursuant to a written rental agreement, without right or permission pursuant to 9 V.S.A. § 4456b(a)(2) ; and, if otherwise brought, on motion, the same shall be abated. Tenants in common of lands may join in an action concerning their common interest in such lands.

HISTORY: Amended 2015, No. 126 (Adj. Sess.), § 4.

History

Source.

V.S. 1947, § 1981. P.L. § 1929. G.L. § 2118. P.S. § 1842. V.S. § 1487. R.L. § 1247. G.S. 40, § 1. R.S. 35, §§ 1, 13. R. 1797, p. 118, § 88.

Amendments

—2015 (Adj. Sess.). Inserted “, or against a person that is occupying a dwelling unit, for which subleasing is prohibited pursuant to a written rental agreement, without right or permission pursuant to 9 V.S.A. § 4456b(a)(2) ” following “of the premises” in the first sentence.

ANNOTATIONS

Actual possession.

Actual possession was sufficient to authorize recovery against stranger, showing no title. Reed v. Shepley, 6 Vt. 602, 1834 Vt. LEXIS 102 (1834).

Adverse possession.

Plea of adverse possession that fails to aver that alleged possession was under a claim of right is fatally defective. State v. Heaphy, 88 Vt. 428, 92 A. 813, 1915 Vt. LEXIS 249 (1915).

Burden of proof.

If several plaintiffs count upon a joint title and right of possession, they must each and all show that such legal title and right of possession exists at time of trial, as well as at commencement of suit, or they cannot sustain action of ejectment. Cheney v. Cheney, 26 Vt. 606, 1854 Vt. LEXIS 58 (1854).

It was necessary in ejectment that plaintiff prove in himself legal title and right of possession to premises and that defendant wrongfully withheld same from him. Dewey v. Long, 25 Vt. 564, 1853 Vt. LEXIS 89 (1853); Skinner v. McDaniel, 4 Vt. 418, 1832 Vt. LEXIS 53 (1832).

Grantee in deed did need to prove appointment of public officer, whose duty it was to record such deed. Brush v. Cook, Brayt. 89 (1819).

—Generally.

Evidence was sufficient to show such possession in defendant as would sustain action of ejectment. Roach v. Heffernan, 65 Vt. 485, 27 A. 71, 1893 Vt. LEXIS 83 (1893).

Evidence could be introduced under general issue, in ejectment, where there were several plaintiffs, disproving their joint title and right of possession. Cheney v. Cheney, 26 Vt. 606, 1854 Vt. LEXIS 58 (1854).

Defendant.

If grantor in an absolute deed was permitted by the grantee to remain in possession of granted premises, he became his quasi tenant, and both could be joined as defendants in an action of ejectment brought by third person claiming to own premises. Patch v. Keeler, 27 Vt. 252 (1854), same case 28 Vt. 332.

Provision that “the action shall be brought as well against the landlord as the tenant in possession of the premises,” would seem to extend only to that class of tenancies created by lease, reserving rent, service, or other equivalent duty, leaving all other tenancies subject to the common law rule, which makes it optional with the plaintiff whether or not to join person under whom tenant in possession holds. Marvin v. Dennison, 20 Vt. 662, 16 F. Cas. 928, 1846 U.S. App. LEXIS 536 (1846).

There exists such a relation between mortgagee and mortgagor of land as entitles plaintiff in ejectment to join them as defendants, even though mortgagee may never have been in actual possession of land. Marvin v. Dennison, 20 Vt. 662, 16 F. Cas. 928, 1846 U.S. App. LEXIS 536 (1846).

Writ would not abate, if landlord was not joined as defendant, in case in which tenancy was by parol and was unknown to plaintiff. Paris v. Bartlett, 19 Vt. 639, 1847 Vt. LEXIS 97 (1847); Wallace v. Farnsworth, 2 Tyl. 294 (Vt. June 1, 1803).

To bring an action of ejectment against several persons, who occupied different rooms in plaintiff’s building, was not a misjoinder of defendants, as each could plead severally not guilty as to room which he occupied, and disclaim as to every other room. Marshall v. Wood, 5 Vt. 250, 1833 Vt. LEXIS 37 (1833).

When grantee took deed of mortgaged premises from mortgagor, after law-day expired, and exercised acts of ownership over premises, keeping mortgagee out of possession, he could be joined with mortgagor as defendant in action of ejectment brought by mortgagee to recover possession. Warner v. Thomas, 5 Vt. 166, 1833 Vt. LEXIS 25 (1833).

—Description.

In an action of ejectment declaration need give only general description of land in question, sufficiently certain to enable defendant to determine for what he is sued, plaintiff to point out to the officer the premises covered by the writ of possession, and all to understand limits to which title is established by judgment. State v. Heaphy, 88 Vt. 428, 92 A. 813, 1915 Vt. LEXIS 249 (1915).

Where description of land is apparently sufficient, conjecture will not be indulged to make it doubtful. State v. Heaphy, 88 Vt. 428, 92 A. 813, 1915 Vt. LEXIS 249 (1915).

Defense.

As against prior actual possession not apparently wrongful, a defendant in ejectment could not set up an outstanding title in stranger unless he connected himself with that title. Perkins v. Flood, 36 Vt. 273, 1863 Vt. LEXIS 72 (1863).

If plaintiff had both record title and possession of piece of land, of which he had been dispossessed, his right to repossess himself of it, by an action of ejectment, could not be resisted by dispossessor, on ground that plaintiff had conveyed premises to third person, by deed, never recorded, and subsequently destroyed, when fact of such conveyance was denied by plaintiff, and there was no privity whatever between defendant and said third person. Russell v. Brooks, 27 Vt. 640, 1855 Vt. LEXIS 94 (1855).

Ejectment by mortgagee, commenced after a decree of foreclosure, was defeated by mortgagor’s paying the amount of decree, which destroyed the title of the mortgagee. Burton v. Austin, 4 Vt. 105, 1832 Vt. LEXIS 7 (1832), limited, Beach v. Beach, 20 Vt. 83, 1847 Vt. LEXIS 112 (1847).

—Generally.

Under deed to husband and wife to hold during their lives and life of survivor of them, husband could recover to extent of interest of both, without joining his wife as co-plaintiff, under prior law. Park v. Pratt, 38 Vt. 545, 1866 Vt. LEXIS 26 (1866).

Election of remedy.

Where plaintiff in ejectment has an election, at outset, to treat defendant as tort-feasor and bring either justice or statutory ejectment, or to waive tort and sue in contract for rent reserved, he must so elect, and may not do both. Sabourin v. Woish, 116 Vt. 385, 78 A.2d 333, 1950 Vt. LEXIS 168 (1950).

Equitable interest.

Where one person has paid purchase money in whole or in part and deed has been given to another, levy of execution by creditor against person paying purchase money would give creditor only that person’s equitable interest, to recover which ejectment would not lie. Dewey v. Long, 25 Vt. 564, 1853 Vt. LEXIS 89 (1853).

Estoppel.

Plea in ejectment, alleging merely that plaintiff stood by and allowed and encouraged defendant and his grantors to erect buildings on land in question, was insufficient as plea of estoppel, in that it failed to aver that defendant and his grantors were misled by plaintiff’s conduct. State v. Heaphy, 88 Vt. 428, 92 A. 813, 1915 Vt. LEXIS 249 (1915).

Executor.

Executor could not maintain ejectment after real estate was divided off to heirs or legatees. Fuller's Ex'r v. Griffin, 3 Vt. 400, 1831 Vt. LEXIS 27 (1831).

Heirs.

If no administrator be appointed on estate of deceased person, his heirs could maintain ejectment to recover land to which he had title, without an order of distribution being made by probate court. Buck v. Squiers, 22 Vt. 484 (1850), same case 23 Vt. 498, 49 A.L.R.2d 994.

Husband and wife.

Ejectment would not lie against defendant husband alone where he occupied premises in right of wife, under prior law. Arbuckle v. Walker, 63 Vt. 34, 22 A. 458, 1890 Vt. LEXIS 49 (1890).

Notice to quit.

When a defendant in ejectment denies title of plaintiff, and also denies his tenancy, or, which is equivalent, requires plaintiff to prove these points, he cannot insist on the want of notice to quit, although it appears that he was tenant from year to year of plaintiff. Catlin v. Washburn, 3 Vt. 25, 1830 Vt. LEXIS 40 (1830).

—Generally.

If party having recovered judgment against another, levy execution upon land deeded to his wife, husband never having held title, former would not by his levy acquire legal title so that he could maintain ejectment on it, whatever interest husband may have had in land, or whatever design in having wife hold title. Buck v. Gilson, 37 Vt. 653, 1865 Vt. LEXIS 48 (1865).

Object of action.

Object of action of ejectment, as adopted and in use in this State, was not merely to recover possession of land, but to settle title and establish right of property. Marvin v. Dennison, 20 Vt. 662, 16 F. Cas. 928, 1846 U.S. App. LEXIS 536 (1846).

Original proprietor.

Original proprietor in town could recover, in his own name, seizin and possession of undivided land, against person who was stranger to all title. House v. Fuller, 12 Vt. 172 (1840), same case 13 Vt. 165; Pomeroy v. Mills, 3 Vt. 410 (1831), same case 3 Vt. 279.

Parol evidence.

Parol evidence could be resorted to for identification of monuments forming the starting point of description recited in a declaration of ejectment, and survey could be resorted to for purpose of establishing particular points and limits of such description. State v. Heaphy, 88 Vt. 428, 92 A. 813, 1915 Vt. LEXIS 249 (1915).

On ejectment brought by plaintiff for a part of real estate which had been severed to his share, in division directed by probate court among devisees, parol evidence was admissible to show that premises sued for were not included in settlement made with executor. Giddings v. Munson, 4 Vt. 308, 1827 Vt. LEXIS 8 (1827).

Property subject to action.

Ejectment does not lie for recovery of trade fixture or other personal property. Sullivan v. Demas, 124 Vt. 397, 205 A.2d 818, 1964 Vt. LEXIS 121 (1964).

Person was liable in an action of ejectment for projection of his roof over another’s land. Murphy v. Bolger, 60 Vt. 723, 15 A. 365, 1888 Vt. LEXIS 204 (1888).

Title vesting in devisee on death of testator, subject to equitable lien, was sufficient title to maintain ejectment. Casey v. Casey, 55 Vt. 518, 1883 Vt. LEXIS 75 (1883).

An action of ejectment would not lie for a right of way, or other easement. Judd v. Leonard, 1 D. Chip. 204 (Vt. 1814).

—Generally.

Plaintiff was required to have title as against defendant both at commencement of action and at time of trial in order to recover seisin and possession of demanded premises. Dodge v. Page, 49 Vt. 137, 1876 Vt. LEXIS 96 (1876).

Seizin in fact under claim of title.

Seizin in fact of land, under claim of title, was itself sufficient title for plaintiff to recover against defendant, who afterwards enters without claim of title. Warner v. Page, 4 Vt. 291 (1832); Doolittle v. Linsley, 2 Aik. 155 (1827); Ellithorp v. Dewing, 1 D. Chip. 141 (1813), same case 2 Aik. 88, 161.

Tenants in common.

Tenant in common could maintain ejectment against his cotenant if ousted of possession by cotenant. Dodge v. Page, 49 Vt. 137, 1876 Vt. LEXIS 96 (1876); Johnson v. Tilden, 5 Vt. 426, 1833 Vt. LEXIS 61 (1833).

Tenant in common could recover whole land in ejectment, against one having no title. Robinson v. Sherwin, 36 Vt. 69, 1863 Vt. LEXIS 42 (1863); Johnson v. Tilden, 5 Vt. 426, 1833 Vt. LEXIS 61 (1833).

Right of part of tenants to recover in ejectment was not affected by fact that rights of their cotenants were barred by operation of statute of limitations. McFarland v. Stone, 17 Vt. 165 (1845), same case 16 Vt. 145.

Town.

Ejectment would not lie against town for land within limits of highway which its selectmen had surveyed, worked and opened for travel, since municipality was not in possession of such land. Lynch v. Rutland, 66 Vt. 570, 29 A. 1015, 1894 Vt. LEXIS 136 (1894).

Variance.

There was no variance, although declaration averred a seisin in fee in plaintiff, when he had only life estate. Casey v. Casey, 55 Vt. 518, 1883 Vt. LEXIS 75 (1883).

Vendor.

Where plaintiff and defendant, by contract under seal, agreed that former convey to latter certain real estate and personal property, and that latter convey to former certain other real estate and to allow plaintiff to occupy for three years, free of rent, cottage included in real estate which plaintiff was to convey to defendant, and plaintiff conveyed real estate as agreed, and instead of occupying cottage himself expressly permitted defendant to do so for two of three years, after which he demanded but was refused possession, parties had by their conduct construed deed and contract together and treated cottage as leased to plaintiff and plaintiff could maintain ejectment whether he had transferred personal property or not. Kooper v. Fulton, 71 Vt. 211, 44 A. 92, 1899 Vt. LEXIS 157 (1899).

No right of recovery in ejectment for lands existed in favor of vendor against vendee unless vendee failed to perform contract on his part, especially where vendor was occasion of contract not being carried into full effect, or where he had put it out of his power to perform stipulations on his part. Downer v. Richardson, 9 Vt. 377, 1837 Vt. LEXIS 55 (1837).

—Generally.

Person in possession of land, by conveying his interest to another, became tenant to that other, so long as he retained possession, and grantee, as landlord, was liable to ejectment by a third person. Hodges v. Gates, 9 Vt. 178, 1837 Vt. LEXIS 18 (1837).

Cited.

Cited in Anello v. Vinci, 142 Vt. 583, 458 A.2d 1117, 1983 Vt. LEXIS 452 (1983).

§ 4762. When judgment shall not prejudice landlord.

When the plaintiff neglects to join the landlord, if any, with the tenant in such action, or by collusion with the tenant recovers judgment against him or her for the seisin of lands, such landlord shall not be prejudiced thereby, but shall be held to have the prior possession in a trial thereafter had of his or her right to such lands against the person so recovering, or a person deriving claim from him or her.

History

Source.

V.S. 1947, § 1982. P.L. § 1830. G.L. § 2119. P.S. § 1843. V.S. § 1488. R.L. § 1248. G.S. 40, § 3. R.S. 35, § 3. R. 1797, p. 118, § 88.

§ 4763. When all tenants are not sued; disclaimer.

The writ in the action of ejectment shall not abate because all the tenants are not sued, but those on whom service is made shall answer for such part of the premises only as they set forth in their answer, and disclaim as to the remainder. If a defendant disclaims as to the whole, he or she shall recover his or her costs, unless the plaintiff proves such defendant in possession of all or part of the premises demanded at the commencement of the action.

History

Source.

V.S. 1947, § 1983. P.L. § 1931. G.L. § 2120. P.S. § 1844. V.S. § 1489. R.L. § 1249. G.S. 40, § 8. R.S. 35, § 5. R. 1797, p. 119, § 89.

ANNOTATIONS

Failure to disclaim.

Where it appeared on trial of an action of ejectment on plea of general issue that before suit brought one defendant had parted with all his title and possession of the demanded premises, on his motion court properly gave him judgment for his costs, although he had not disclaimed according to this section, for whether this section applied or not, defendant was not bound to disclaim, and thereby admit plaintiff’s title, but had right to put in issue whole declaration by his plea of not guilty. Trustees of Caledonia Co. Gram. School v. Howard, 84 Vt. 1, 77 A. 877 (1910), same case 86 Vt. 151, 84 A. 26, 111 A.L.R. 1051.

—Generally.

Where defendant was not in possession and did not claim possession, but disclaimed it, he was entitled to his cost. Phillips v. Post, 55 Vt. 568, 1883 Vt. LEXIS 86 (1883).

Notion of disclaimer in action of ejectment seems to have been borrowed from common law proceedings in real actions. Marshall v. Wood, 5 Vt. 250, 1833 Vt. LEXIS 37 (1833).

§ 4764. Recovery according to right.

On trial in an action of ejectment, the plaintiff shall recover on the merits, according to his or her right.

History

Source.

V.S. 1947, § 1984. P.L. § 1932. G.L. § 2121. P.S. § 1845. V.S. § 1490. R.L. § 1250. G.S. 40, § 6. R.S. 35, § 6. R. 1797, p. 119, § 90.

ANNOTATIONS

Life estate.

Plaintiff although having but life estate was entitled to “recover on the merits according to his right.” Casey v. Casey, 55 Vt. 518, 1883 Vt. LEXIS 75 (1883).

—Generally.

Plaintiff in ejectment who declares for an interest in severalty could recover by showing interest or share of a tenant, in common with defendant, and on actual eviction by defendant. Evarts v. Dunton, Brayt. 67 (1820).

If plaintiff in ejectment fail of showing title to whole of land described in his declaration, he could still recover a part in severalty or an undivided part according to his title. Doe ex dem Chapin v. Scott, 1 D. Chip. 41 (1789), same case N. Chip. 33.

§ 4765. Damages; transfer of title pending action.

If judgment is rendered for the plaintiff in an action of ejectment, he or she shall recover his or her damages and the seisin and possession of the premises. If the title of the plaintiff expires or is conveyed by him or her after the commencement of such action, the suit shall not thereby fail, but the plaintiff may recover judgment for his or her damages for the detention of the premises during the continuance of his or her title, with costs.

History

Source.

V.S. 1947, § 1985. P.L. § 1933. G.L. § 2122. P.S. § 1846. V.S. § 1491. R.L. § 1251. G.S. 40, § 4. 1851, No. 5 . R.S. 35, § 4. R. 1797, p. 118, § 88.

ANNOTATIONS

Common law.

At common law successful plaintiff in ejectment recovered demanded premises, but with nominal damages only, and he could then bring action of trespass for mesne profits, in which he recovered such damages as law gave him. Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375 (1924), same case 96 Vt. 145, 227, 118 A. 524, 883, 97 Vt. 328, 123 A. 200, 99 Vt. 12, 130 A. 754, 99 Vt. 244, 131 A. 10.

This statute changed such procedure and blended latter action with former. Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375 (1924), same case 96 Vt. 145, 227, 118 A. 524, 883, 97 Vt. 328, 123 A. 200, 99 Vt. 12, 130 A. 754, 99 Vt. 244, 131 A. 10.

—Generally.

When the parties had a contract for deed, rather than a landlord-tenant relationship, plaintiff could not obtain relief in the form of back rent; rather, on remand, the trial court was to treat his complaint as a claim for mesne profits under a theory that defendant had held the property without right. Kellogg v. Shushereba, 2013 VT 76, 194 Vt. 446, 82 A.3d 1121, 2013 Vt. LEXIS 76 (2013).

While statute speaks of recovery of damages, term “mesne profits” persists in cases, and is commonly used to denote damages recoverable in ejectment. Sabourin v. Woish, 117 Vt. 94, 85 A.2d 493 (1952); Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375 (1924), same case 96 Vt. 145, 227, 118 A. 524, 883, 97 Vt. 328, 123 A. 200, 99 Vt. 12, 130 A. 754, 99 Vt. 244, 131 A. 10.

Mesne profits at common law were pecuniary gains and benefits received by disseizor during his unlawful occupancy. Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375 (1924), same case 96 Vt. 145, 227, 118 A. 524, 883, 97 Vt. 328, 123 A. 200, 99 Vt. 12, 130 A. 754, 99 Vt. 244, 131 A. 10.

Consequential damages.

Plaintiff could recover such consequential damages as had resulted from acts of defendant while in wrongful occupation of premises. Sabourin v. Woish, 117 Vt. 94, 85 A.2d 493, 1952 Vt. LEXIS 105 (1952); Toussaint v. Stone, 116 Vt. 425, 77 A.2d 824, 1951 Vt. LEXIS 114 (1951); Powers v. Trustees of Caledonia Co. Gram. School, 93 Vt. 220, 106 A. 836, 1919 Vt. LEXIS 156 (1919); Lippett v. Kelley, 46 Vt. 516, 1874 Vt. LEXIS 31 (1874).

Evidence.

In action of tort by successful party in ejectment, for damages for unlawfully withholding garage property, evidence regarding garage business done on premises by occupant thereof during plaintiff’s exclusion therefrom, was admissible, and its exclusion prejudicial error. Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375 (1924), same case 96 Vt. 145, 227, 118 A. 524, 883, 97 Vt. 328, 123 A. 200, 99 Vt. 12, 130 A. 754, 99 Vt. 244, 131 A. 10.

In such action, evidence of net earnings during previous occupancy of premises by plaintiff, if not referring to time too remote, was admissible, and question of remoteness was addressed to trial court’s discretion. Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375 (1924), same case 96 Vt. 145, 227, 118 A. 524, 883, 97 Vt. 328, 123 A. 200, 99 Vt. 12, 130 A. 754, 99 Vt. 244, 131 A. 10.

In such action, ruling of trial court admitting evidence of net profits during previous occupancy of premises by plaintiff will be presumed to have been made in the exercise of its discretion, the contrary not appearing. Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375 (1924), same case 96 Vt. 145, 227, 118 A. 524, 883, 97 Vt. 328, 123 A. 200, 99 Vt. 12, 130 A. 754, 99 Vt. 244, 131 A. 10.

In such action, evidence of one who had worked in the garage during plaintiff’s previous occupancy thereof that business was good was admissible as tending to show the amount of mesne profits which defendant received or ought to have received. Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375 (1924), same case 96 Vt. 145, 227, 118 A. 524, 883, 97 Vt. 328, 123 A. 200, 99 Vt. 12, 130 A. 754, 99 Vt. 244, 131 A. 10.

In such action, evidence of prospective profits is received, not as furnishing measure of damages to be adopted by jury, but to be taken into consideration by jury as a guide in arriving at correct estimate of plaintiff’s loss. Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375 (1924), same case 96 Vt. 145, 227, 118 A. 524, 883, 97 Vt. 328, 123 A. 200, 99 Vt. 12, 130 A. 754, 99 Vt. 244, 131 A. 10.

Judgment bar to further action.

When no damages, or only nominal damages, are recovered in an action of ejectment under this section, judgment therein is bar to any further action for mesne profits. Sabourin v. Woish, 117 Vt. 94, 85 A.2d 493, 1952 Vt. LEXIS 105 (1952); Brinsmaid v. Mayo, 9 Vt. 31, 1837 Vt. LEXIS 3 (1837).

Pleading.

In order to recover special damages they must be alleged in declaration. Sabourin v. Woish, 117 Vt. 94, 85 A.2d 493, 1952 Vt. LEXIS 105 (1952); Toussaint v. Stone, 116 Vt. 425, 77 A.2d 824, 1951 Vt. LEXIS 114 (1951).

Profits.

To warrant recovery of profits of which plaintiff has been deprived, profits claimed must not be uncertain, speculative, or remote; but such as proof reasonably shows plaintiff to have been proximately deprived of by defendant’s wrongful act are recoverable. Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375 (1924), same case 96 Vt. 145, 227, 118 A. 524, 883, 97 Vt. 328, 123 A. 200, 99 Vt. 12, 130 A. 754, 99 Vt. 244, 131 A. 10.

Prospective profits necessarily depend upon various conditions, which are for consideration of jury, to be given such effect as its judgment dictates, and need not be susceptible of calculation with mathematical exactness, if there is sufficient foundation for a rational conclusion. Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375 (1924), same case 96 Vt. 145, 227, 118 A. 524, 883, 97 Vt. 328, 123 A. 200, 99 Vt. 12, 130 A. 754, 99 Vt. 244, 131 A. 10.

Where lost profits are recoverable, past profits in the same business may be shown, if not too remote. Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375 (1924), same case 96 Vt. 145, 227, 118 A. 524, 883, 97 Vt. 328, 123 A. 200, 99 Vt. 12, 130 A. 754, 99 Vt. 244, 131 A. 10.

Rules of damages generally.

Rule of damages is one generally governing in tort actions, which has for its foundation the doctrine of compensation for pecuniary loss resulting from unlawful act, and when rental value alone does not afford such compensation additional recovery may be had, and the wrongdoer must respond for gains prevented as well as for losses sustained, so far as same are sufficiently alleged and proved. Capital Garage Co. v. Powell, 98 Vt. 303, 127 A. 375 (1924) same case 96 Vt. 145, 227, 118 Atl. 524, 883, 97 Vt. 328, 123 Atl. 200, 99 Vt. 12, 130 Atl. 754, 99 Vt. 244, 131 Atl. 10; Sabourin v. Woish, 117 Vt. 94, 85 A.2d 493, 1952 Vt. LEXIS 105 (1952).

Plaintiff was entitled to recover as damages annual value of land from time of accruing of his title. Roach v. Heffernan, 65 Vt. 485, 27 A. 71, 1893 Vt. LEXIS 83 (1893).

§ 4766. Effect of judgment.

While remaining in force, the judgment recovered in an action of ejectment shall be conclusive against the parties thereto, their heirs, and assigns.

History

Source.

V.S. 1947, § 1986. P.L. § 1934. G.L. § 2123. P.S. § 1847. V.S. § 1492. R.L. § 1252. G.S. 40, § 2. R.S. 35, § 2. 1807, p. 142. R. 1797, p. 118, § 88.

ANNOTATIONS

Executor or administrator.

Recovery by an executor or administrator in an action of ejectment against devisees or heirs of estate which he was administering, was conclusive at law as to his title and right of property, and also as to that of an administrator de bonis non who had succeeded him, to possession of premises for which recovery was had. Payne's Adm'r v. Payne, 29 Vt. 172, 1857 Vt. LEXIS 8 (1857).

Want of title.

Judgment rendered in action of ejectment, where notice was given, was conclusive evidence of want of title in grantor and sufficient to enable grantee or assigns to maintain action on covenant of warranty against representatives of grantor. Brown v. Taylor, 13 Vt. 631, 1841 Vt. LEXIS 126 (1841).

—Generally.

Judgment was conclusive evidence of title as between parties and their heirs and assigns. Sartwell v. Sowles, 72 Vt. 270, 48 A. 11, 1900 Vt. LEXIS 132 (1900); Parks v. Moore, 13 Vt. 183, 1841 Vt. LEXIS 35 (1841).

§§ 4767-4772. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 4767-4772. Former §§ 4767-4772 related to ejectment. Prior to repeal former §§ 4768, 4769 were amended by 1967, No. 367 (Adj. Sess.), §§ 2, 3.

Such sections are now covered by V.R.C.P. 80.1.

Former § 4767 was derived from V.S. 1947, § 1987; P.L. § 1935; G.L. § 2124; P.S. § 1848; V.S. § 1493; R.L. § 1253; G.S. 40, § 7; R.S. 35, § 7.

Former § 4768 was derived from V.S. 1947, § 1988; P.L. § 1936; G.L. § 2125; P.S. § 1849; V.S. § 1494; R.L. § 1254; G.S. 40, § 8; R.S. 35, § 8.

Former § 4769 was derived from V.S. 1947, § 1989; P.L. § 1937; G.L. § 2126; P.S. § 1850; V.S. § 1495; R.L. § 1255; G.S. 40, § 9; R.S. 35, § 9.

Former § 4770 was derived from V.S. 1947, § 1990; P.L. § 1938; G.L. § 2127; P.S. § 1851; V.S. § 1496; R.L. § 1256; G.S. 40, § 10; R.S. 35, § 10.

Former § 4771 was derived from V.S. 1947, § 1991; P.L. § 1939; G.L. § 2128; P.S. § 1852; V.S. § 1497; R.L. § 1257; G.S. 40, § 11; R.S. 35, § 11.

Former § 4772 was derived from V.S. 1947, § 1992; P.L. § 1940; G.L. § 2129; P.S. § 1853; V.S. § 1498; R.L. § 1258; G.S. 40, § 12; R.S. 35, § 12.

§ 4773. Ejectment for nonpayment of rent; proof; payment.

In actions of ejectment for nonpayment of rent, the plaintiff shall not be required to prove a demand of the rent in arrear or a stipulation for reentry on nonpayment of rent or a reentry on the premises, but shall recover judgment as if the rent in arrear had been demanded and reentry made. Before a writ of possession is executed, if the defendant pays into court all rent due through the end of the current rental period, including interest and the costs of suit, the action shall be discontinued. A defendant may not defeat an ejectment action by payment of all rent in arrears, interest, and court costs more than one time in 12 months. The 12-month period shall begin on the day the payment is made.

HISTORY: Amended 2007, No. 176 (Adj. Sess.), § 50.

History

Source.

V.S. 1947, § 1993. P.L. § 1941. G.L. § 2130. P.S. § 1854. V.S. § 1499. R.L. § 1259. G.S. 40, § 14. R.S. 35, § 14. 1818 p. 75.

Amendments

—2007 (Adj. Sess.). Substituted “a writ of possession is executed” for “final judgement”, deleted “in such action” following “defendant”, and substituted “all rent due through the end of the current rental period including” for “the rent in arrear with”, and “the action” for “such action” in the second sentence and added the third and fourth sentences.

ANNOTATIONS

Agreement between parties.

Stipulation between tenant and her landlord constituted a waiver of tenant’s statutory right to redeem her tenancy where, in exchange for landlord accepting a lesser amount than was actually owed, tenant agreed to vacate premises by a date certain. Murray v. Williams, 169 Vt. 625, 740 A.2d 791, 1999 Vt. LEXIS 230 (1999) (mem.).

Costs of suit.

Attorney’s fees incurred in the course of eviction of defendant were not “costs” to be borne by defendant within the meaning of this section. Ravenwood Estates, Inc. v. Mason, 156 Vt. 642, 590 A.2d 884, 1991 Vt. LEXIS 51 (1991) (mem.).

Discontinuance of action.

Judgment for possession is not final for purposes of this section until the earlier of (a) the date of the issuance of the writ of possession, or (b) the date by which a notice of appeal must be filed. Tucker v. Bushway, 166 Vt. 592, 689 A.2d 426, 1996 Vt. LEXIS 168 (1996) (mem.).

In an action of ejectment the statute mandates a discontinuance of the action upon payment of the rent arrearage into court and once that is done discontinuance should follow and an amendment of the action for forfeiture for reasons other than nonpayment of rent is a nullity. Aiken v. Watson, 131 Vt. 19, 298 A.2d 559, 1972 Vt. LEXIS 224 (1972).

Judgment lien.

This section affords a landlord a remedy for nonpayment of rent and, when invoked, permits the landlord to obtain a judgment for rent in arrears; such a lien for rent or a lien of distress for rent, however, could be avoided by a trustee in bankruptcy in the performance of his official duties under 11 U.S.C. § 545. In re M.A.P.P., Inc., 26 B.R. 391, 1983 Bankr. LEXIS 7081 (Bankr. D. Vt. 1983).

Justice ejectment.

Action of justice ejectment under § 4851 of this title, when founded solely on tenant’s nonpayment of rent, was “action of ejectment for the nonpayment of rent” within this section providing that in such actions, if defendant before final judgment pays into court rent in arrear with interest and costs, action shall be discontinued. LaFleur v. Smith, 95 Vt. 476, 115 A. 729, 1922 Vt. LEXIS 157 (1922).

New and simple remedy.

This statute created no new duties or obligations and did not impair obligation of any contract, but gave new and more simple remedy for an existing right, and in so doing secured mutual and reciprocal advantages to both parties. Maidstone v. Stevens, 7 Vt. 487, 1835 Vt. LEXIS 75 (1835).

Relief from forfeiture for nonpayment of rent.

Where forfeiture for some reason other than nonpayment of rent is sought, this section has no application, and a tender made by a tenant in such a case will not abate the action. Canfield v. Hall, 121 Vt. 479, 160 A.2d 768, 1960 Vt. LEXIS 147 (1960).

Right of tenant to relieve himself from forfeiture for nonpayment of rent by bringing his money into court is secured to him by provisions of this section, and that remedy is not denied, either at law or in equity, by failure to pay rent as stipulated in lease or by failure to deliver possession under promise in lease to do so on failure to pay rent when due. Archambault v. Casellini-Venable Corp., 115 Vt. 30, 49 A.2d 557 (1946); Capital Garage Co. v. Powell, 96 Vt. 145, 118 A. 524 (1922), same case 96 Vt. 227, 118 A. 883, 97 Vt. 204, 1 423, 97 Vt. 204, 123 A. 200, 98 Vt. 303, 127 A. 375, 99 Vt. 130 A. 754, 47 A.L.R. 1363, 31 A.L.R.2d 396; University of Vermont v. Ward, 104 Vt. 239, 158 A. 773, 1932 Vt. LEXIS 146 (1932); Rosenberg v. Taft, 94 Vt. 458, 111 A. 583, 1920 Vt. LEXIS 233 (1920); Willard v. Benton, 57 Vt. 286, 1884 Vt. LEXIS 33 (1884).

Cited.

Cited in Hilder v. St. Peter, 144 Vt. 150, 478 A.2d 202, 1984 Vt. LEXIS 444 (1984); In re Couture, 202 B.R. 837, 1996 Bankr. LEXIS 1542 (Bankr. D. Vt. 1996); In re Stoltz, 220 B.R. 552, 1998 Bankr. LEXIS 604 (Bankr. D. Vt. 1998).

Subchapter 2. Complaint for Betterments Following Judgment in Ejectment Suit

§ 4811. When and for what maintainable.

When the plaintiff commences an action of ejectment, the defendant shall counterclaim for the value of the improvements made upon the land by him or her or by those under whom he or she claims, if he or she or his or her predecessors in title purchased the land recovered in the action, supposing the title to be good in fee at the time of the purchase, or if he or she or his or her predecessors in title took a lease of the land supposing that lease to convey the title and interest therein expressed at the time the lease was accepted. Recovery on the counterclaim shall be contingent on the plaintiff’s recovery on the claim for ejectment. The increase in the value of the land in consequence of betterments so made shall be held to be the value of the betterments.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 131, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1994. P.L. § 1942. G.L. § 2131. P.S. § 1855. V.S. § 1500. R.L. § 1260. G.S. 40, §§ 15, 16. R.S. 35, §§ 15, 16. 1820, p. 15. 1800, p. 5. R. 1787, p. 87.

Amendments

—1971 (Adj. Sess.). Provided for counterclaim and recovery thereon.

ANNOTATIONS

Distinct proceeding.

Statute provides for distinct proceeding, in which matter of improvements can be brought to distinct issue and tried on what legitimately bears on subject. Ford v. Flint, 40 Vt. 382, 1867 Vt. LEXIS 88 (1867).

In declaration for betterments, it must be determined, on trial before jury, whether there could be a recovery, and the question could not be raised by special pleadings which terminate in demurrer. Beckley v. Willard, 13 Vt. 533, 1841 Vt. LEXIS 104 (1841).

Whether a party was entitled to recover for his betterments must be determined on trial of declaration filed therefor, and could not be decided by court who gave judgment in action of ejectment, on motion. Gaige v. Ladd, 5 Vt. 266 (1833), same case 6 Vt. 174.

Right to file declaration for betterments did not depend on facts which appeared in evidence or proceedings had in trial of action of ejectment. Gaige v. Ladd, 5 Vt. 266 (1833), same case 6 Vt. 174.

No recovery could be had in a declaration for betterments founded on an alleged want of title in defendant (the recovering party in ejectment). Brown v. Storm, 4 Vt. 37, 1831 Vt. LEXIS 62 (1831).

—Generally.

Right of party to betterments depends on his bona fide supposition that he was buying title in fee, and not on whether he actually was buying fee. Rutland R.R. v. Chaffee, 72 Vt. 404, 48 A. 700 (1900), same case 71 Vt. 84, 42 A. 984; Kendall v. Tracy, 64 Vt. 522, 24 A. 1118, 1892 Vt. LEXIS 81 (1892); Whitney v. Richardson, 31 Vt. 300, 1858 Vt. LEXIS 135 (1858).

This right does not depend upon nature or kind of title which real owner may have, nor upon his having had right to the immediate possession at the time betterments were made; nor on his negligence in asserting his title. Whitney v. Richardson, 31 Vt. 300, 1858 Vt. LEXIS 135 (1858).

If defendant in ejectment purchased with belief that he was obtaining perfect title in fee, fact that party in chain of his title purchased without such belief on his part, did not prevent defendant from recovering for betterments made by all others in chain of his title who purchased with such belief on their part, whether prior or subsequent to such party. Whitney v. Richardson, 31 Vt. 300, 1858 Vt. LEXIS 135 (1858).

Fraudulent deed.

Where jury in an action of ejectment had established fact that deed under which defendant claimed title was fraudulent and void, and that defendant was party to fraud, defendant was not entitled to recover payment for improvements made on premises. Thompson v. Gilman, 17 Vt. 109, 1843 Vt. LEXIS 140 (1843).

He was not entitled to give in evidence any facts which tended to show that such deed was not fraudulent, that matter having become res adjudicata by the verdict in former action. Thompson v. Gilman, 17 Vt. 109, 1843 Vt. LEXIS 140 (1843).

Neither was he entitled to give in evidence any facts which tended to show that plaintiff in action of ejectment had no title to premises in question. Thompson v. Gilman, 17 Vt. 109, 1843 Vt. LEXIS 140 (1843).

Notice.

Grantee was not entitled to betterments, if he knew of existence of mortgage when he accepted conveyance. Kendall v. Tracy, 64 Vt. 522, 24 A. 1118, 1892 Vt. LEXIS 81 (1892).

Constructive notice which law implies from registry of deed was not sufficient to preclude one from recovering for betterments, who in fact purchased in good faith and with supposition that he was obtaining perfect title in fee. Whitney v. Richardson, 31 Vt. 300, 1858 Vt. LEXIS 135 (1858).

Notice after purchase to a grantee, who purchased supposing his title to be good in fee, that it was doubtful, would not prevent him from recovering for improvements thereafter made. Whitney v. Richardson, 31 Vt. 300, 1858 Vt. LEXIS 135 (1858).

Railroad lands.

Betterment made on railroad lands stand no differently from those made on lands of private individuals and defendant could recover judgment from railroad company for betterments on such lands. Rutland R.R. v. Chaffee, 72 Vt. 404, 48 A. 700 (1900), same case 71 Vt. 84, 42 A. 984.

Review.

No review was allowed in an action on case for betterments. Gaige v. Ladd, 6 Vt. 174 (1834), same case 5 Vt. 266.

Share of land.

Where there were two tenants in common of real estate, and third person obtained a deed covering share of one tenant, supposing he was acquiring good title thereto, and he entered into possession of entire premises and made improvements, and subsequently other tenant brought ejectment against him for his share, and recovered, he was entitled to recover, against plaintiff in ejectment amount which share of land thus recovered had been improved by the betterments upon entire tract. Strong v. Hunt, 20 Vt. 614, 1848 Vt. LEXIS 86 (1848).

Cited.

Cited in Center v. Mad River Corp., 151 Vt. 408, 561 A.2d 90, 1989 Vt. LEXIS 75 (1989).

§ 4812. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 4812. Former § 4812, relating to time for filing complaint for betterments, was derived from V.S. 1947, § 1995; 1945, No. 29 , § 14; P.L. § 1943; G.L. § 2132; 1917, No. 254 , § 2095; P.S. § 1856; V.S. § 1501; R.L. § 1261; G.S. 40, § 17; R.S. 35, § 17; 1820, p. 15; 1800, p. 6; R. 1787, p. 88. Such section is now covered by V.R.C.P. 13.

§ 4813. Proceedings in ejectment stayed; lands charged.

Final judgment shall not be entered upon the claim for ejectment until entry of final judgment on the counterclaim. The lands recovered by the plaintiff shall be held to respond to any judgment on the counterclaim for the defendant as if those lands had been attached on mesne process.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 132, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1996. P.L. § 1944. G.L. § 2133. P.S. § 1857. V.S. § 1502. R.L. § 1262. G.S. 40, § 18. R.S. 35, § 18. 1920, p. 16. 1800, p. 7. R. 1787, p. 88.

Amendments

—1971 (Adj. Sess.). Amended section generally to provide for defendant’s counterclaim.

CROSS REFERENCES

Counterclaim and cross-claim, see V.R.C.P. 13.

Judgment upon multiple claims or involving multiple parties, see V.R.C.P. 54(b).

Stay of proceeding to enforce a judgment, see V.R.C.P. 62.

§ 4814. Improvements considered.

The damages in the action of ejectment arising from mesne profits shall be such only as are just and equitable, in view of improvements made upon the premises by the defendant or those under whom he or she claims.

History

Source.

V.S. 1947, § 1997. P.L. § 1945. G.L. § 2135. P.S. § 1859. V.S. § 1504. R.L. § 1264. G.S. 40, § 21. R.S. 35, § 21. 1820, p. 19. 1800, p. 8.

ANNOTATIONS

Claim for back rent.

Under this section, when a claim for back rent is made in an ejectment action, improvements made to the premises may be taken into consideration. Birkenhead v. Coombs, 143 Vt. 167, 465 A.2d 244, 1983 Vt. LEXIS 493 (1983).

Contract for deed.

Interrelationship between mesne profits and the cost of improvements made by the occupant is governed by the statute which provides that the amount of mesne profits awarded must be just and equitable, in view of the improvements made by the occupant; the statute also applies to cases that do not involve a landlord-tenant relationship. Thus, in a suit involving a contract for deed, the trial court could offset the cost of the improvements made by defendant against the mesne profits owed to plaintiff, as well as reduce the monthly mesne profits for the periods when the repairs or improvements were needed, but not made. Kellogg v. Shushereba, 2013 VT 76, 194 Vt. 446, 82 A.3d 1121, 2013 Vt. LEXIS 76 (2013).

§ 4815. Execution to issue against land only.

Execution on a judgment rendered on a counterclaim for betterments shall issue only against the land recovered in the action of ejectment, and not against the body or the other lands or the goods and chattels of the plaintiff in that action.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 133, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1998. P.L. § 1946. G.L. § 2136. P.S. § 1860. V.S. § 1505. R.L. § 1265. G.S. 40, § 19. R.S. 35, § 19. 1820, p. 16. 1800, p. 7. R. 1787, p. 88.

Amendments

—1971 (Adj. Sess.). Amended section to provide for counterclaims.

ANNOTATIONS

Railroad land.

Since execution on judgment for betterments could issue only against lands recovered in action of ejectment, and land used by railroad company as its right of way could not be levied on to satisfy such execution, defendant was left to his remedy at equity, which could appropriately be by way of an injunction restraining railroad company from using lands in question until judgment for betterments was paid. Rutland R.R. v. Chaffee, 72 Vt. 404, 48 A. 700 (1900), same case 71 Vt. 84, 42 A. 984.

§ 4816. When execution or writ of possession may issue.

When the defendant recovers judgment on his or her counterclaim for betterments, execution shall not issue thereon until four months from its rendition. The writ of possession in the action of ejectment shall be further stayed for the same time, unless the plaintiff in the action pays to the defendant therein or to the clerk of the court to the use of the defendant the full amount of the judgment on the counterclaim for betterments. In that case, a writ of possession may immediately issue.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 134, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1999. P.L. § 1947. G.L. § 2137. P.S. § 1861. V.S. § 1506. R.L. § 1266. G.S. 40, § 22. R.S. 35, § 22. 1820, p. 17. 1800, p. 8. R. 1787, p. 89.

Amendments

—1971 (Adj. Sess.). Amended section to provide for counterclaims.

§ 4817. When entry was under contract.

Sections 4811-4816 of this title relating to betterments shall not extend to a person who has entered on land under a contract made with the legal owner, unless it appears on trial of the counterclaim for betterments that the owner has not fulfilled the contract.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 135, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2000. P.L. § 1948. G.L. § 2138. P.S. § 1862. V.S. § 1507. R.L. § 1267. G.S. 40, § 23. R.S. 35, § 24. 1820, p. 18. 1800, p. 9.

Amendments

—1971 (Adj. Sess.). Amended section to provide for counterclaims.

§ 4818. Remedy against voucher.

Sections 4811-4817 of this title shall not deprive a person of cause of action against his or her voucher, and the voucher may present evidence, in mitigation of damages, of the recovery of the defendant for betterments.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 136, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2001. P.L. § 1949. G.L. § 2139. P.S. § 1863. V.S. § 1508. R.L. § 1268. G.S. 40, § 24. R.S. 35, § 25. 1820, p. 18. 1800, p. 10. R. 1787, p. 90.

Amendments

—1971 (Adj. Sess.). Rephrased, substituted “cause of action” and “present evidence” for “remedy at law” and “give in evidence under the general denial”.

§ 4819. Dismissal by plaintiff.

Further proceedings shall not be had on the counterclaim for betterments when the judgment is awarded to the plaintiff on his or her claim of title and he or she, within 30 days of the rendition of judgment, shall lodge with the clerk a warranty deed to the defendant of the lands so recovered and the plaintiff dismisses the action.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 137, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2002. 1945, No. 29 , § 15. P.L. § 1950. G.L. § 2140. P.S. § 1864. V.S. § 1509. R.L. § 1269. G.S. 40, § 25. R.S. 35, § 26. 1820, p. 18. 1800, p. 10.

Amendments

—1971 (Adj. Sess.). Amended section to provide for counterclaims.

§ 4820. Valuation determined.

After such deed is so lodged, the court shall appoint a committee of three disinterested persons from the vicinity in which the land lies, who, on oath, shall ascertain what would then have been the value of such land if betterments had not been made thereon, and make and return a report thereof in writing to the clerk of the court within 30 days from the date of the determination of the matter.

History

Source.

V.S. 1947, § 2003. 1945, No. 29 , § 16. P.L. § 1951. G.L. § 2141. P.S. § 1865. V.S. § 1510. R.L. § 1270. G.S. 40, § 26. R.S. 35, § 27. 1820, p. 19. 1800, p. 10.

§ 4821. Value paid; no further proceedings.

Further proceedings shall not be had on the judgment rendered in the action of ejectment, when the defendant pays to the plaintiff or to the clerk of the court for the use of the plaintiff or his or her legal representatives, the sum reported by the committee, with the costs of suit and after-proceedings, and the interest thereon, within four years from filing the deed as aforesaid, in four equal and annual payments of which the first shall be within one year from the time of filing the deed.

History

Source.

V.S. 1947, § 2004. P.L. § 1952. G.L. § 2142. P.S. § 1866. V.S. § 1511. R.L. § 1271. G.S. 40, § 27. R.S. 35, § 28. 1820, p. 19. 1800, p. 10.

§ 4822. Value not paid; writ to issue.

When the defendant does not pay an installment of the sum so reported, with costs and interest from the date of the deed, such deed shall be returned to the plaintiff, and the writ of possession and execution for the costs shall issue accordingly.

History

Source.

V.S. 1947, § 2005. P.L. § 1953. G.L. § 2143. P.S. § 1867. V.S. § 1512. R.L. § 1272. G.S. 40, § 28. R.S. 35, § 29. 1820, p. 19. 1800, p. 11.

§ 4823. Rights of a representative.

When either party dies pending the proceedings as to betterments, his or her executor or administrator may do, as to such proceedings for betterments, whatever the deceased party could have done had he or she been living. A conveyance by an executor or administrator, agreeably to this chapter, shall convey the title of the person whom he or she represents, to the land recovered.

History

Source.

V.S. 1947, § 2006. P.L. § 1954. G.L. § 2144. P.S. § 1868. V.S. § 1513. R.L. § 1273. G.S. 40, § 29. R.S. 35, § 30.

§ 4824. Previous limitations not to apply.

The provisions of this chapter relating to betterments shall extend to the cases therein provided for, as though acts of limitation or sections of such acts had not been passed.

History

Source.

V.S. 1947, § 2007. P.L. § 1955. G.L. § 2145. P.S. § 1869. V.S. § 1514. R.L. § 1274. G.S. 40, § 30.

Subchapter 3. Superior Court Ejectment

History

Revision note—

Substituted “Superior” for “District” preceding “Court” in subchapter heading in view of 1989, No. 221 (Adj. Sess.), § 7. See § 4851 of this title.

ANNOTATIONS

Cited.

Cited in State v. Bisson, 161 Vt. 8, 632 A.2d 34, 1993 Vt. LEXIS 85 (1993).

§ 4851. Issuance of process by Superior judge.

When the lessee of lands or tenements, either by parole or written lease, or a person holding under the lease, holds possession of the demised premises without right, after the termination of the lease by its own limitation or after breach of a stipulation contained in the lease by the lessee or a person holding under the lessee, the person entitled to the possession of the premises may have from the presiding judge of the Superior Court a writ to restore him or her to the possession thereof.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 138, eff. March 29, 1972; 1973, No. 249 (Adj. Sess.), § 28, eff. April 9, 1974; 1989, No. 221 (Adj. Sess.), § 7, eff. Oct. 1, 1990.

History

Source.

V.S. 1947, § 2008. P.L. § 1956. G.L. § 2146. P.S. § 1870. V.S. § 1560. R.L. § 1321. G.S. 46, § 22. 1850, No. 17 , § 1. 1842, No. 39 , §§ 1, 2.

Amendments

—1989 (Adj. Sess.). Substituted “superior” for “district” preceding “judge” in the section catchline, “the lessee” for “him” preceding “the person entitled” and “presiding judge of the superior” for “district” preceding “court” and inserted “or her” following “restore him”.

—1973 (Adj. Sess.). Substituted the words “the district court a writ” for “a justice process” preceding “to restore”.

—1971 (Adj. Sess.). Rephrased, substituted “termination” and “process” for “determination” and “writ”.

CROSS REFERENCES

Affidavit of defense in actions under this section, see V.R.C.P. 56.

Ejectment for nonpayment of rent, see § 4773 of this title.

ANNOTATIONS

Effect of suit and judgment.

A suit and judgment in justice ejectment is conclusive evidence that relation of landlord and tenant did not exist during time for which compensation (whether called damages, rents, or mesne profits) could be recovered; and that time is from service of writ, at latest. Sabourin v. Woish, 116 Vt. 385, 78 A.2d 333, 1950 Vt. LEXIS 168 (1950).

Ejectment for nonpayment of rent.

Action of justice ejectment under this section, when founded solely on tenant’s nonpayment of rent, was an “action of ejectment for the nonpayment of rent” within § 4773 of this title and tenant was entitled to relief therein provided. LaFleur v. Smith, 95 Vt. 476, 115 A. 729, 1922 Vt. LEXIS 157 (1922).

Election of remedy.

Where plaintiff in ejectment has an election at outset, to treat defendant as tort-feasor and bring either justice or statutory ejectment, or to waive tort and sue in contract for rent reserved, he must so elect, and may not do both. Sabourin v. Woish, 116 Vt. 385, 78 A.2d 333, 1950 Vt. LEXIS 168 (1950).

Equitable mortgagor of purchaser in possession.

Action under this section did not lie in favor of vendors against vendees who had defaulted on payments under a contract for deed, and the default did not change the relationship to that of landlord and tenant. Strengowski v. Gomes, 128 Vt. 555, 268 A.2d 749, 1970 Vt. LEXIS 271 (1970).

This section had no application to equitable mortgagor or purchaser in possession. Davis v. Hemenway, 27 Vt. 589, 1855 Vt. LEXIS 80 (1855).

Evidence.

Where in action of justice ejectment to recover possession of house, defense was that defendant was trying to effect settlement and was to vacate when settlement was made, evidence by defendant’s wife that she heard him say that he was willing to move if he could get a satisfactory settlement, was not within provision of § 1605 of this title, forbidding wife to testify against her husband as to any conversation had by him with her or with another person. Mead v. Owen, 80 Vt. 273, 67 A. 722 (1907), same case 83 Vt. 132, 74 A. 1058.

In an action of “justice ejectment,” when plaintiff testified that defendant was in possession of farm in question under an oral contract that if he would live with her thereon and do by her as a son ought, he should have what was on place and should have home with her as long as she lived; regardless of whether this made defendant lessee of farm, and notwithstanding statute of frauds, he had the right to meet this testimony by showing that he was in possession under an oral agreement such that he was not lessee of the premises. Wheeler v. Wheeler, 77 Vt. 177, 59 A. 842, 1905 Vt. LEXIS 107 (1905).

As bearing on claim of defendant that his possession of farm in question was under contract with plaintiff, by which he was to own farm when plaintiff was through with it, defendant was properly allowed to show that he had permanently improved farm, had constructed several buildings, thereon, had purchased spring of water and constructed an aqueduct, had bought farming tools; and that plaintiff had made her will in his favor, willing him farm. Wheeler v. Wheeler, 77 Vt. 177, 59 A. 842, 1905 Vt. LEXIS 107 (1905).

Forcible entry and detainer.

Grantee could not maintain forcible entry and detainer under this section against grantor remaining in possession, although grantor, on notice to quit, promised to surrender possession. Pitkin v. Burch, 48 Vt. 521, 1875 Vt. LEXIS 114 (1875).

Jurisdiction.

Since object of an action of ejectment proper under § 4761 of this title is not only to recover the possession of land, but also to settle and establish the title thereto, and as title to land is necessarily involved, justice had no jurisdiction of such action. Sartwell v. Sowles, 72 Vt. 270, 48 A. 11, 1900 Vt. LEXIS 132 (1900).

Landlord and tenant relation.

Where the tenancy had not been terminated on the date that the landlord brought the ejectment action, the trial court should have entered judgment for tenant. Further, because the damages action was derivative of the ejectment action, the damages aspect of the judgment also could not be sustained. Andrus v. Dunbar, 2005 VT 48, 178 Vt. 554, 878 A.2d 245, 2005 Vt. LEXIS 81 (2005) (mem.).

A prerequisite to bringing an action under this statute is the existence of a landlord and tenant relationship, and the action does not lie against one in the possession of lands or tenements unless they are held by a technical lessee and all his title and right therein, both legal and equitable, has terminated. Strengowski v. Gomes, 128 Vt. 555, 268 A.2d 749, 1970 Vt. LEXIS 271 (1970).

This section applies only to cases wherein technical relation of landlord and tenant exists and without this remedy provided is not available. Crawford v. Jerry, 111 Vt. 120, 11 A.2d 210 (1940); Trask v. Fountain, 93 Vt. 83, 106 A. 559 (1918); Mead v. Owen, 80 Vt. 273, 67 A. 722 (1907), same case 83 Vt. 132, 74 A. 1058; Wheeler v. Wheeler, 77 Vt. 177, 59 A. 842, 1905 Vt. LEXIS 107 (1905).

Relation does not need to exist between parties when action is commenced if either or both of parties take under original parties to lease. Crawford v. Jerry, 111 Vt. 120, 11 A.2d 210, 1940 Vt. LEXIS 130 (1940).

Where defendant was not tenant of plaintiff in his occupancy of house and such occupancy was mere incident to operation of farm on shares, in respect of which relation of landlord and tenant did not exist, action would not lie to recover possession of house. Mead v. Owen, 80 Vt. 273, 67 A. 722 (1907), same case 83 Vt. 132, 74 A. 1058.

Where defendant, having performed all conditions of lease, elected to purchase, and so notified plaintiff, who thereupon refused to convey, action would not lie, since plaintiff was no longer lessor, but vendor. Mack v. Dailey, 67 Vt. 90, 30 A. 686, 1893 Vt. LEXIS 2 (1893).

Notice to quit.

Notice to quit is not necessary to maintain justice ejectment. Wheeler v. Wheeler, 77 Vt. 177, 59 A. 842, 1905 Vt. LEXIS 107 (1905); Horan v. Thomas, 60 Vt. 325, 13 A. 567, 1888 Vt. LEXIS 148 (1888).

If plaintiff tries her case on theory that she must show that she gave defendant reasonable notice to quit, and gives evidence tending to show that she did so, it is for jury to say whether, under all circumstances, notice was reasonable. Wheeler v. Wheeler, 77 Vt. 177, 59 A. 842, 1905 Vt. LEXIS 107 (1905).

Purpose.

Statute was intended as substitute for technical procedure of common law action of ejectment. Horan v. Thomas, 60 Vt. 325, 13 A. 567, 1888 Vt. LEXIS 148 (1888).

—Generally.

Defendants in an action of justice ejectment are not entitled to recover for betterments made to property. Canfield v. Hall, 121 Vt. 479, 160 A.2d 768, 1960 Vt. LEXIS 147 (1960).

Justice ejectment is not confined to forfeitures claimed by reason of nonpayment of rent. Canfield v. Hall, 121 Vt. 479, 160 A.2d 768, 1960 Vt. LEXIS 147 (1960).

Justice ejectment gives summary remedy to persons entitled to possession which is wrongfully withheld, and is intended as substitute for technical procedure of common law action of ejectment. Canfield v. Hall, 121 Vt. 52, 147 A.2d 886, 1959 Vt. LEXIS 86 (1959); Canfield v. Hall, 121 Vt. 479, 160 A.2d 768, 1960 Vt. LEXIS 147 (1960).

Justice ejectment provides summary remedy for a landlord whose tenant holds over without right after determination of lease; it lies where common law ejectment would lie and is given for wrongful holding over of demised premises, and thus has all characteristics of ejectment. Sabourin v. Woish, 116 Vt. 385, 78 A.2d 333, 1950 Vt. LEXIS 168 (1950); LaFleur v. Smith, 95 Vt. 476, 115 A. 729, 1922 Vt. LEXIS 157 (1922); Foss v. Stanton, 76 Vt. 365, 57 A. 942, 1904 Vt. LEXIS 149 (1904); Ramo v. Wilson, 24 Vt. 520, 1852 Vt. LEXIS 76 (1852).

All provisions creating and allowing justice ejectment proceed on supposition that lease is at an end, and remedy lies only when lessee holds without right after determination of lease. Sabourin v. Woish, 116 Vt. 385, 78 A.2d 333 (1950); Mead v. Owen, 80 Vt. 273, 67 A. 722 (1907), same case 83 Vt. 132, 74 A. 1058.

Tenancy for life.

Proceeding was available though tenancy be for life, provided it was created by contract. Foss v. Stanton, 76 Vt. 365, 57 A. 942, 1904 Vt. LEXIS 149 (1904).

Tort.

Action sounds in tort. Sabourin v. Woish, 116 Vt. 385, 78 A.2d 333, 1950 Vt. LEXIS 168 (1950); Ackerman v. French, 90 Vt. 324, 98 A. 921, 1916 Vt. LEXIS 280 (1916); Sheeran v. Rockwood, 67 Vt. 82, 30 A. 689, 1894 Vt. LEXIS 16 (1894).

—Generally.

This section permits securing of justice writ of possession by one taking an original lessor against one claiming possession under an original lessee. Crawford v. Jerry, 111 Vt. 120, 11 A.2d 210, 1940 Vt. LEXIS 130 (1940); Trask v. Fountain, 93 Vt. 83, 106 A. 559, 1919 Vt. LEXIS 139 (1919); Barton v. Learned, 26 Vt. 192, 1854 Vt. LEXIS 3 (1854); President of Middlebury College v. Lawton, 23 Vt. 688, 1851 Vt. LEXIS 94 (1851).

Since justice ejectment is statutory in nature, right to maintain it depends on showing facts which bring case within terms of statute. Hinsman v. Marble Sav. Bank, 102 Vt. 217, 147 A. 270 (1929), same case 100 Vt. 48, 134 A. 635, 104 Vt. 40, 156 A. 874; Wheeler v. Wheeler, 77 Vt. 177, 59 A. 842, 1905 Vt. LEXIS 107 (1905); Pitkin v. Burch, 48 Vt. 521, 1875 Vt. LEXIS 114 (1875).

Venue.

District Court ejectment action was not a proceeding to establish or settle title to land, and venue was not governed by section 402 of this title providing that actions concerning real estate shall be brought in the county in which the land lies; the action could be brought, under section 405 of this title, in the territorial unit in which one of the parties resided, and it made no difference where the property was situated. State v. Fisher, 134 Vt. 339, 360 A.2d 102, 1976 Vt. LEXIS 669 (1976).

—Generally.

Language of this section, giving remedy to lessor when lessee is holding without right “after breach of stipulation contained in the lease,” relates to terms of lease as expressed in instrument, and not to those implied by law. Hinsman v. Marble Sav. Bank, 100 Vt. 48, 134 A. 635 (1926), same case 102 Vt. 217, 147 A. 270, 104 Vt. 40, 156 A. 874.

Cited.

Cited in Anello v. Vinci, 142 Vt. 583, 458 A.2d 1117, 1983 Vt. LEXIS 452 (1983); Estate of Emilo v. St. Pierre, 146 Vt. 421, 505 A.2d 664, 1985 Vt. LEXIS 397 (1985); In re Couture, 202 B.R. 837, 1996 Bankr. LEXIS 1542 (Bankr. D. Vt. 1996).

§ 4852. Mode of process; declaration; trial by jury.

The process may issue as a summons or writ of attachment, requiring the defendant to appear and answer to the complaint of the plaintiff which shall state that the defendant is in the possession of the lands or tenements in question (describing them), which the tenant holds unlawfully and against the right of the plaintiff. A copy of the rental agreement, if any, and any notice to terminate the defendant’s tenancy shall be attached to the complaint. Either party shall have the right to a trial by jury.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 139, eff. March 29, 1972; 1973, No. 249 (Adj. Sess.), § 29, eff. April 9, 1974; 1999, No. 115 (Adj. Sess.), § 9.

History

Source.

V.S. 1947, § 2009. P.L. § 1957. G.L. § 2147. P.S. § 1871. V.S. § 1561. R.L. § 1322. G.S. 46, § 23. 1846, No. 19 . 1842, No. 39 , § 2.

Amendments

—1999 (Adj. Sess.). Substituted “which the tenant holds” for “which he holds” in the first sentence and added the second sentence.

—1973 (Adj. Sess.). Omitted provisions relating to civil actions before justices.

—1971 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Form for writ and complaint in justice ejectment, see § 5963 of this title.

ANNOTATIONS

Capias.

Writ could issue, and be served as capias. Ackerman v. French, 90 Vt. 324, 98 A. 921, 1916 Vt. LEXIS 280 (1916); Barnes v. Tenney, 52 Vt. 557, 1880 Vt. LEXIS 179 (1880).

Declaration.

Declaration complied with this section and statutory form of action in justice ejectment by alleging that defendants are in possession of the premises in question, which land and tenements the defendants hold unlawfully and against the rights of plaintiff. Canfield v. Hall, 121 Vt. 479, 160 A.2d 768, 1960 Vt. LEXIS 147 (1960).

Description.

Where declaration described demanded premises as “the dwelling house and outbuildings and a small piece of land adjoining the same,” plaintiff was not allowed for use of a pasture connected with house and garden and with them making up farm which defendant had occupied as plaintiff’s lessee year before, since description was too uncertain to fairly include it. Cushing v. Fenn, 63 Vt. 106, 21 A. 272, 1890 Vt. LEXIS 62 (1890).

§ 4853. Service of process.

The process shall be served and notice given as in other civil actions.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 140, eff. March 29, 1972; 1973, No. 249 (Adj. Sess.), § 30, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2010. P.L. § 1958. G.L. § 2148. P.S. § 1872. V.S. § 1562. R.L. § 1323. G.S. 46, § 24. 1842, No. 39 , § 3.

Amendments

—1973 (Adj. Sess.). Omitted the words “before justices” at end of sentence.

—1971 (Adj. Sess.). Substituted “process” and “actions” for “writ” and “causes”.

§ 4853a. Payment of rent into court; expedited hearing.

  1. Subsection (a) as amended by 2007, Act No. 125 (Adj. Sess.), § 1.

    In any action against a tenant for possession, the landlord may file a motion for an order that the tenant pay rent into court. The motion may be filed and served with the complaint or at any time after the complaint has been filed. The motion shall be accompanied by affidavit setting forth particular facts in support of the motion.

    (a)

    Subsection (a) as amended by 2007, Act No. 176 (Adj. Sess.), § 51.

    In any action against a tenant for possession brought in accordance with this chapter, 9 V.S.A. chapter 137, 10 V.S.A. chapter 153, or 11 V.S.A. chapter 14, the landlord may file a motion for an order that the tenant pay rent into court. The motion may be filed and served with the complaint or at any time after the complaint has been filed. The motion shall be accompanied by affidavit setting forth particular facts in support of the motion.

  2. A hearing on the motion shall be held any time after 14 days’ notice to the parties. If the tenant appears at the hearing and has not been previously defaulted, the court shall not enter judgment by default unless the tenant fails to file a written answer within 14 days after the hearing. Any rent escrow order shall remain in effect notwithstanding the issuance of a default judgment but shall cease upon execution of a writ of possession.
  3. Any memorandum in opposition filed by the defendant pursuant to Rule 78(b) of the Vermont Rules of Civil Procedure shall be accompanied by affidavit setting forth particular facts in support of the memorandum.
  4. If the court finds the tenant is obligated to pay rent and has failed to do so, the court shall order full or partial payment into court of rent as it accrues while the proceeding is pending and rent accrued from the date of filing with the court the complaint for ejectment or the date the summons and complaint for ejectment were served on the tenant pursuant to Rule 3 of the Vermont Rules of Civil Procedure, whichever occurs first.
  5. All funds paid into court shall be made payable to the court clerk by money order, certified check, cash, or any other means which guarantees the availability of the funds for distribution after a hearing on the merits.  The funds shall be distributed forthwith in accordance with the final order from the trial court.
  6. The landlord may at any time by motion apply to the court for disbursement of all or part of the funds paid into court.  The motion for disbursement shall be accompanied by affidavit setting forth particular facts in its support.  If the court finds that the landlord is in actual danger of loss of the premises or other personal hardship resulting from the loss of rental income, it may award all or any portion of the funds under deposit to the landlord.
  7. The tenant may at any time by motion apply to the court to reduce the amount ordered to be paid into court under this section.  The motion for reduction shall be accompanied by affidavit setting forth particular facts in its support.
  8. If the tenant fails to pay rent into court in the amount and on the dates ordered by the court, the landlord shall be entitled to judgment for immediate possession of the premises. The court shall forthwith issue a writ of possession directing the sheriff of the county in which the property or a portion thereof is located to serve the writ upon the defendant and, not earlier than five business days after the writ is served, or, in the case of an eviction brought pursuant to 10 V.S.A. chapter 153, 30 days after the writ is served, to put the plaintiff into possession.

HISTORY: Added 1985, No. 175 (Adj. Sess.), § 3; amended 1993, No. 141 (Adj. Sess.), § 12, eff. May 6, 1994; 1999, No. 115 (Adj. Sess.), § 3; 2007, No. 125 (Adj. Sess.), § 1; 2007, No. 176 (Adj. Sess.), § 51; 2017, No. 11 , § 18.

History

Editor’s note

—2008. Subsec. (a) was amended by 2007, No. 125 (Adj. Sess.), § 1 and 2007, No. 176 (Adj. Sess.), § 51. Because the two amendments to the subsec. are in conflict both versions are published.

Amendments

—2017. Subsec. (b): Substituted “14” for “10” preceding “days” in the first and second sentences.

Subsec. (h): Substituted “not earlier” for “no sooner” preceding “than” and inserted “business” following “than five” in the second sentence.

—2007 (Adj. Sess.) Subsec. (a): Act No. 125 deleted “brought in accordance with chapter 137 of Title 9 or chapter 153 of Title 10” following “possession” in the first sentence.

Subsec. (a): Act No. 176 inserted “this chapter” following “in accordance with”, deleted “or” following “Title 9”, and inserted “or chapter 14 of Title 11” following “Title 10”.

Subsec. (b): Act No. 176 added the present second and third sentences.

Subsec. (d): Act No. 176 substituted “rent accrued from the date of filing with the court the complaint for ejectment or the date the summons and complaint for ejectment were served on the tenant pursuant to Rule 3 of the Vermont Rules of Civil Procedure, whichever occurs first” for “prorated rent for the month in which the hearing is held”.

—1999 (Adj. Sess.). Subsec. (b): Amended generally.

Subsec. (d): Added “and prorated rent for the month in which the hearing is held” at the end of paragraph.

—1993 (Adj. Sess.). Subsec. (a): Inserted “or chapter 153 of Title 10” following “Title 9” in the first sentence.

Subsec. (h): Inserted “or, in the case of an eviction brought pursuant to chapter 153 of Title 10, 30 days after the writ is served” preceding “to put the plaintiff” in the second sentence.

Rent escrow hearings; temporary judicial discretion for payment of rent into court. 2019, No. 95 (Adj. Sess.), § 1 provides: “(a) As used in this section, ‘emergency period’ means the period beginning with the Governor’s declaration of a state of emergency on March 13, 2020 arising from COVID-19 and ending 30 days after the Governor terminates the state of emergency by declaration.

“(b) Notwithstanding 12 V.S.A. § 4853a(d) , for any hearing on a motion to order a defendant to pay rent into court that occurs during the emergency period, the court may order full or partial payment into court of rent as it accrues while the proceeding is pending and rent accrued from the date of filing with the court the complaint for ejectment or the date the summons and complaint for ejectment were served on the tenant pursuant to Rule 3 of the Vermont Rules of Civil Procedure, whichever occurs first.”

ANNOTATIONS

Discontinuance of eviction.

Since, under this section, defendant’s payment of rent arrears into court discontinued the eviction and defendant was no longer a tenant who was obligated to pay rent and has failed to do so, the trial court erred in requiring tenant to make such payment into court during pendency of appeal. Ravenwood Estates, Inc. v. Mason, 156 Vt. 642, 590 A.2d 884, 1991 Vt. LEXIS 51 (1991) (mem.).

§ 4853b. Unlawful occupant; expedited hearing.

    1. In an action for ejectment, the landlord, the landlord’s agent, or the tenant may file a motion for a judgment that the plaintiff is entitled to immediate possession of the premises on the grounds that the defendant is a person that is occupying a dwelling unit without right or permission and the written rental agreement for the dwelling unit prohibits subleasing pursuant to 9 V.S.A. § 4456b(a)(2) . (a) (1) In an action for ejectment, the landlord, the landlord’s agent, or the tenant may file a motion for a judgment that the plaintiff is entitled to immediate possession of the premises on the grounds that the defendant is a person that is occupying a dwelling unit without right or permission and the written rental agreement for the dwelling unit prohibits subleasing pursuant to 9 V.S.A. § 4456b(a)(2) .
    2. The motion may be filed and served with the complaint or at any time after the complaint has been filed. The motion shall be accompanied by an affidavit setting forth particular facts in support of the motion and a copy of the lease agreement.
  1. A hearing on the motion shall be held any time after 10 days’ notice to the parties.
  2. At any time before the hearing, the defendant may oppose the motion pursuant to Rule 78(b) of the Vermont Rules of Civil Procedure by filing an affidavit, a signed written statement, or a memorandum in opposition to the motion. The affidavit, signed written statement, or memorandum shall set forth particular facts to show that a genuine dispute of fact exists in relation to the motion.
    1. If the defendant fails to appear for the hearing, or to file an affidavit, signed written statement, or memorandum in opposition to the plaintiff’s motion, or has failed to file an answer in the time provided pursuant to Rule 12 of the Vermont Rules of Civil Procedure, the plaintiff shall be entitled to judgment by default for immediate possession of the premises. (d) (1) If the defendant fails to appear for the hearing, or to file an affidavit, signed written statement, or memorandum in opposition to the plaintiff’s motion, or has failed to file an answer in the time provided pursuant to Rule 12 of the Vermont Rules of Civil Procedure, the plaintiff shall be entitled to judgment by default for immediate possession of the premises.
    2. If the court finds that the defendant is a person that is occupying the dwelling unit without right or permission and the written rental agreement for the dwelling unit prohibits subleasing pursuant to 9 V.S.A. § 4456b(a)(2) , the court shall grant the plaintiff’s motion and issue judgment in favor of the plaintiff for immediate possession of the premises.
  3. If the court issues judgment in favor of the plaintiff pursuant to subsection (d) of this section, the court shall, on the date judgment is entered, issue a writ of possession directing the sheriff of the county in which the property or a portion thereof is located to serve the writ upon the defendant and, not sooner than five days after the writ is served, to put the plaintiff into possession.
  4. At any time prior to the execution of the writ of possession, the defendant may file an affidavit, signed written statement, or a motion with the court setting forth facts demonstrating that the defendant is occupying the premises lawfully. The court shall treat an affidavit, signed written statement, or a motion filed under this subsection as a motion pursuant to Rule 59 or 60 of the Vermont Rules of Civil Procedure, as appropriate.

HISTORY: Added 2015, No. 126 (Adj. Sess.), § 5.

§ 4854. Judgment for plaintiff; writ of possession.

If the court finds that the plaintiff is entitled to possession of the premises, the plaintiff shall have judgment for possession and rents due, damages, and costs, and when a written rental agreement so provides, the court may award reasonable attorney’s fees. A writ of possession shall issue on the date judgment is entered, unless the court for good cause orders a stay. The writ shall direct the sheriff of the county in which the property or a portion thereof is located to serve the writ upon the defendant and, not earlier than 14 days after the writ is served, to put the plaintiff into possession.

HISTORY: Amended 1979, No. 2 , § 1, eff. Feb. 14, 1979; 1985, No. 175 (Adj. Sess.), § 2; 1999, No. 115 (Adj. Sess.), § 4; 2007, No. 176 (Adj. Sess.), § 52; 2017, No. 11 , § 19.

History

Source.

V.S. 1947, § 2011. P.L. § 1959. G.L. § 2149. P.S. § 1873. V.S. § 1563. 1890, No. 46 . R.L. § 1324. G.S. 46, § 25. 1842, No. 39 , § 4.

Amendments

—2017. Substituted “not earlier” for “no sooner” following “defendant and,” and “14” for “ten” preceding “days” in the third sentence.

—2007 (Adj. Sess.). Substituted “on” for “ten days after” in the second sentence and “ten days” for “five days” in the last sentence.

—1999 (Adj. Sess.). Section amended generally.

—1985 (Adj. Sess.). Section amended generally.

—1979. Substituted “$5,000” for “$200” in the first sentence.

ANNOTATIONS

Due at retention of judgment.

In proceeding under statute of 1842, brought by landlord to recover possession of premises from tenant who held over his term, landlord was entitled to recover all rent due at time of rendition of judgment. President of Middlebury College v. Lawton, 23 Vt. 688, 1851 Vt. LEXIS 94 (1851).

Fair and reasonable compensation.

“Rent” for which judgment may be had under this section means fair and reasonable compensation or return for use of premises; and while it does not necessarily mean rent stipulated in lease, that is evidence of such reasonable compensation. Sabourin v. Woish, 116 Vt. 385, 78 A.2d 333, 1950 Vt. LEXIS 168 (1950); Baldwin v. Skeels, 51 Vt. 121, 1878 Vt. LEXIS 135 (1878).

Rent.

Recovery of rent is merely incidental to recovery of possession of premises. Ackerman v. French, 90 Vt. 324, 98 A. 921, 1916 Vt. LEXIS 280 (1916); Sheeran v. Rockwood, 67 Vt. 82, 30 A. 689, 1894 Vt. LEXIS 16 (1894).

Writ of possession.

Debtor’s lease was not terminated on the date that she filed a bankruptcy petition where that date was five days prior to the date a writ of possession would have been entered. In re Stoltz, 220 B.R. 552, 1998 Bankr. LEXIS 604 (Bankr. D. Vt.), rev'd, 233 B.R. 280, 1998 U.S. Dist. LEXIS 22286 (D. Vt. 1998).

Writ of possession which showed that judgment on which it was issued was rendered by justice, and was for plaintiff to recover “his title and possession” showed judgment without jurisdiction of justice to render, and afforded no justification to anyone acting under it. Sartwell v. Sowles, 72 Vt. 270, 48 A. 11, 1900 Vt. LEXIS 132 (1900).

Cited.

Cited in In re Couture, 202 B.R. 837, 1996 Bankr. LEXIS 1542 (Bankr. D. Vt. 1996); Andrus v. Dunbar, 2005 VT 48, 178 Vt. 554, 878 A.2d 245, 2005 Vt. LEXIS 81 (2005) (mem.).

§ 4854a. Property of tenant remaining on premises after eviction.

  1. A landlord may dispose of any personal property remaining in a dwelling unit or leased premises without notice or liability to the tenant or owner of the personal property:
    1. 15 days after a writ of possession is served pursuant to this chapter or upon the landlord being legally restored to possession of the dwelling unit or leased premises pursuant to this chapter, whichever is later; or
    2. in the case of an eviction brought pursuant to 10 V.S.A. chapter 153, 40 days after a writ of possession issued for failure to pay rent into court pursuant to subsection 4853a(h) of this title is served or upon the landlord being legally restored to possession of the leased premises by a writ of possession issued for failure to pay rent into court pursuant to subsection 4853a(h) of this title, whichever is later.
  2. Notwithstanding subsection (a) of this section, if the court stays the execution of a writ of possession issued pursuant to this chapter, then a landlord may dispose of any personal property remaining in a dwelling unit or leased premises without notice or liability to the tenant or owner of the personal property one day after the landlord is legally restored to possession of the dwelling unit or leased premises.

HISTORY: Added 2011, No. 137 (Adj. Sess.), § 11, eff. May 14, 2012; amended 2015, No. 9 , § 1.

History

Amendments

—2015. Subdiv. (a)(1): Inserted “or upon the landlord being legally restored to possession of the dwelling unit or leased premises pursuant to this chapter, whichever is later” following “chapter”.

Subdiv. (a)(2): Inserted “or upon the landlord being legally restored to possession of the leased premises by a writ of possession issued for failure to pay rent into court pursuant to subsection 4853a(h) of this title, whichever is later” following “served”.

Subsec. (b): Substituted “one day” for “five days” following “property”.

Applicability of 2015 amendment. 2015, No. 9 , § 3(a) provides that the amendment to this section by that act shall take effect on July 1, 2015, and shall apply to ejectment actions beginning on or after that date.

ANNOTATIONS

Construction.

Statute regarding a tenant’s abandoned property is not made obsolete; it has continued viability in situations where a residential tenant abandons or vacates a dwelling unit without being formally evicted, and the statute governing a tenant’s property remaining on the premises after an eviction applies in circumstances where the abandonment statute does not. JW, LLC v. Ayer, 2014 VT 71, 197 Vt. 118, 101 A.3d 906, 2014 Vt. LEXIS 77 (2014).

Disposal proper.

Because 15 days from service of the writ of possession had passed when the sheriff came to execute the writ, the landlord was entitled to dispose of any personal property of the tenants without liability and was not required to return the property to the tenants. JW, LLC v. Ayer, 2014 VT 71, 197 Vt. 118, 101 A.3d 906, 2014 Vt. LEXIS 77 (2014).

Landlord obligation.

Statute governing a tenant’s property remaining on the premises after an eviction plainly allows a landlord to dispose of property, and, therefore, does not place an affirmative obligation on the landlord to store or keep any items left in a dwelling unit after fifteen days from when the writ of possession is served. JW, LLC v. Ayer, 2014 VT 71, 197 Vt. 118, 101 A.3d 906, 2014 Vt. LEXIS 77 (2014).

Unjust enrichment applies.

Court cannot read the statute governing a tenant’s property remaining on the premises after an eviction as giving the landlord the value of the personal property found on the premises at the end of the statutory period. The landlord may incur no liability for the act of disposing of the property, but this does not mean that the landlord can be enriched by the value of the property in cases where the property does have value; any benefit the landlord realizes from the sale or retention of the personal property is subject to a claim of unjust enrichment. JW, LLC v. Ayer, 2014 VT 71, 197 Vt. 118, 101 A.3d 906, 2014 Vt. LEXIS 77 (2014).

§ 4855. Close jail execution, when not to issue.

When such judgment includes rent for the use of leased premises prior to the giving of notice to quit, the court shall not certify on an execution issued thereon that the cause of action arose from the willful and malicious act and neglect of the defendant, and that the defendant ought to be confined in close jail.

History

Source.

V.S. 1947, § 2012. P.L. § 1960. G.L. § 2150. P.S. § 1874. 1898, No. 44 , § 1.

§ 4856. Judgment for defendant; execution.

When the plaintiff’s complaint is dismissed or he or she does not prove his or her right to the possession, the defendant shall have judgment for his or her costs, and execution therefor.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 141, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2013. P.L. § 1961. G.L. § 2151. P.S. § 1875. V.S. § 1564. R.L. § 1325. G.S. 46, § 26. 1842, No. 39 , § 5.

Amendments

—1971 (Adj. Sess.). Rephrased and substituted “plaintiff’s complaint is dismissed” for “plaintiff becomes nonsuit”.

§§ 4857, 4858. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former §§ 4857, 4858. Former § 4857, relating to appeal from justice and recognizance, was derived from 1971, No. 185 (Adj. Sess.), § 142.

Former § 4858, relating to application to district courts, was derived from 1965, No. 194 , § 10; 1971, No. 185 (Adj. Sess.), § 143.

§ 4859. Repealed. 1985, No. 175 (Adj. Sess.), § 7.

History

Former § 4859. Former § 4859, relating to leases, enforcement, and affirmative defense, was derived from 1971, No. 235 (Adj. Sess.), § 5.

Chapter 171. Entry or Detainer

§ 4911. Entry or detainer with force; forcible entry prohibited.

A person shall not make entry into lands, tenements, or other possessions, except where entry is given by law; and in such case, not with strong hand nor with multitude of people, but only in a peaceable manner. A person who violates a provision of this section shall be fined as hereinafter provided.

History

Source.

V.S. 1947, § 2044. P.L. § 1992. G.L. § 2182. P.S. § 1905. V.S. § 1543. R.L. § 1304. G.S. 46, § 1. R.S. 41, § 1. R. 1797, p. 199, § 1.

CROSS REFERENCES

Forms for forcible entry and detainer, see §§ 5911, 5912 of this title.

ANNOTATIONS

Defenses.

Title and right of possession of dwelling house does not justify an entry and forcible expulsion of occupant and his family wrongfully holding over. Carpenter v. Barber, 44 Vt. 441, 1872 Vt. LEXIS 43 (1872).

For party to justify entry with violence upon premises in which he has title, on ground of previous peaceable entry, it must appear that party took actual peaceable possession on prior occasion, which was unabandoned down to time of his assertion of his right of entry with violence, so that in what was done at that time he stood in the attitude of defending his premises, and not of invading the occupant’s possession by force. Whittaker v. Perry, 38 Vt. 107, 1865 Vt. LEXIS 67 (1865).

Evidence.

Complainant administrator was not estopped from showing possession in his intestate because he omitted to inventory the lands in question in his return to the registry of probate. Allen v. Ormsby, 1 Tyl. 345 (Vt. 1802).

Forcible entry.

Where person enters unoccupied house in the night without force or violence, it constitutes mere trespass, not forcible entry. Foster v. Kelsey, 36 Vt. 199, 1863 Vt. LEXIS 61 (1863).

Fact that defendant was in possession of plaintiff’s field and forcibly prevented him from putting his cattle into the field, and thus compelled him to quit possession, would, if uncontradicted, prove forcible detainer. Foster v. Kelsey, 36 Vt. 199, 1863 Vt. LEXIS 61 (1863).

Unlawful but peaceable entry, followed by forcible detainer, is held to come within meaning and cognizance of the statutes upon forcible entry and detainer; even if without a previous demand in writing. Foster v. Kelsey, 36 Vt. 199, 1863 Vt. LEXIS 61 (1863).

Where one has the right to enter and take possession of premises in occupancy of another, his entry will be legal and not forcible entry and detainer, if made while other party is temporarily absent from premises, leaving no one there, even though it be necessary to force door to gain admittance. Mussey v. Scott, 32 Vt. 82, 1859 Vt. LEXIS 68 (1859).

Where tenant entered farm under a lease for a year, with stipulations that he would perform certain acts, breach of these stipulations did not entitle lessor to action for forcible entry and detainer before expiration of the year. Ramo v. Wilson, 24 Vt. 520, 1852 Vt. LEXIS 76 (1852).

Where tenant at will of a dwelling house held over his term and after due notice to quit, the landlord forcibly entered and ejected him, his family and effects, from the house, the entry was unlawful, and the tenant recovered his damages therefor—and it made no difference that the tenant had agreed to leave by a certain day named and that, if he did not leave, the landlord might put out him and his effects in any way he chose. Dustin v. Cowdry, 23 Vt. 631, 1851 Vt. LEXIS 84 (1851).

Former employees of landowner.

Where plaintiffs received the right to occupy a tenant house on defendants’ farm in exchange for services, following termination of the employment plaintiffs remained on the farm as tenants, not as employees, and were entitled to the protection of this section. Tatro v. Lehouiller, 147 Vt. 151, 513 A.2d 610, 1986 Vt. LEXIS 378 (1986).

Pleading.

Where declaration, in addition to averments of breaking and entering plaintiff’s close, contains allegations of other matters, such as expulsion of plaintiff from premises, or taking and carrying away of personal property, leaving it equivocal whether plaintiff intends such additional matter as aggravation of principal trespass, or whether it was inserted as distinct trespass for which plaintiff seeks to recover, defendant has right to regard it as aggravation merely, and in his plea pass over it in silence, answering only alleged trespass on freehold. Carpenter v. Barber, 44 Vt. 441, 1872 Vt. LEXIS 43 (1872).

In such case, under common low pleading, if defendant so pleads, and his plea is good answer to alleged trespass on freehold, it is prima facie an answer to whole action, and if plaintiff wishes to avoid this effect and recover for such additional trespass, as well as for trespass on freehold, he must new assign in respect to such additional trespass, and allege in his new assignment that he brought his action as well for trespass mentioned in plea, as for trespasses newly assigned; but it is not necessary to new assign where plea attempts to justify all trespasses or grounds of action specifically, for which plaintiff proceeds. Carpenter v. Barber, 44 Vt. 441, 1872 Vt. LEXIS 43 (1872).

Notes to Opinions

Parties.

The state is not a party to the proceedings under this chapter. 1942 Vt. Op. Att'y Gen. 67.

§ 4912. Trial of forcible entry and detainer.

A district judge may inquire by a jury against those who make unlawful and forcible entry into lands, tenements, or other possessions and with strong hand detain the same, and against those who, having made a lawful and peaceable entry into lands and tenements, unlawfully and by force hold the same.

HISTORY: Amended 1973, No. 249 (Adj. Sess.), § 31, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2045. P.L. § 1993. G.L. § 2183. P.S. § 1906. V.S. § 1544. R.L. § 1305. G.S. 46, § 2. R.S. 41, § 2. R. 1797, p. 199, § 2. R. 1787, p. 73.

Amendments

—1973 (Adj. Sess.). Substituted “A district judge” for “Two justices of the county”.

§ 4913. Restitution.

When it is found upon such inquiry that an unlawful and forcible entry has been made, and that such lands, tenements, or other possessions are held and detained by force and strong hand or that the same, after a lawful entry, are held unlawfully and with force, the judge shall cause the party complaining to have restitution thereof.

HISTORY: Amended 1973, No. 249 (Adj. Sess.), § 32, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2046. P.L. § 1997. G.L. § 2187. P.S. § 1910. V.S. § 1548. R.L. § 1306. G.S. 46, § 3. R.S. 41, § 3. R. 1797, p. 199, § 2. R. 1787, p. 73.

Amendments

—1973 (Adj. Sess.). Substituted “the judge” for “such justices”.

§ 4914. Complaint and warrant.

When a complaint is formally made in writing, to a district judge of such unlawful or forcible entry or detainer, he or she shall issue a warrant returnable within such county not less than six business days thereafter, which shall be directed to the sheriff, commanding such officer to apprehend the person against whom such complaint is made and bring him or her before the district judge having jurisdiction.

HISTORY: Amended 1973, No. 249 (Adj. Sess.), § 33, eff. April 9, 1974; 2017, No. 11 , § 20.

History

Source.

V.S. 1947, § 2047. P.L. § 1994. G.L. § 2184. P.S. § 1907. V.S. § 1545. R.L. § 1307. G.S. 46, § 4. R.S. 41, § 4. R. 1797, p. 199, § 3. R. 1787, p. 73.

Amendments

—2017. Inserted “or she” following “he”, “business” following “than six”, and “or her” following “him”.

—1973 (Adj. Sess.). Amended generally by omitting references to justices and inserting references to district judge.

ANNOTATIONS

Process.

Magistrate issuing the process should enter on complaint minute of time of its exhibition. Hall v. Brown, 2 Tyl. 64 (Vt. Feb. 1, 1802).

Security for costs.

In forcible entry and detainer the justices issuing the warrant, authorized by this section, should take security for the costs of prosecution or the proceedings will be dismissed upon motion. Whitaker v. Perry, 37 Vt. 631, 1865 Vt. LEXIS 42 (1865).

§ 4915. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former ( 4915. Former § 4915, relating to jury and procedure, was derived from V.S. 1947, § 2048; P.L. § 1995; G.L. § 2185; P.S. § 1908; V.S. § 1546; R.L. § 1308; G.S. 46, § 5; R.S. 41, § 5; R. 1797, p. 199, § 3; R. 1787, p. 73.

§ 4916. Verdict of guilty, restitution ordered when; fine.

When the jury finds the person against whom the complaint is made guilty of such forcible entry or detainer, the district judge shall enter up judgment for the complainant to have restitution of the premises, and impose such fine, not exceeding $10.00, as he or she thinks just. The judge shall tax costs for the complainant, and may commit the person against whom the judgment is rendered until the fine and costs are paid, and shall also award his or her writ of restitution.

HISTORY: Amended 1973, No. 249 (Adj. Sess.), § 34, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2049. P.L. § 1996. G.L. § 2186. P.S. § 1909. V.S. § 1547. R.L. § 1309. G.S. 46, § 6. R.S. 41, § 6. R. 1797, p. 199, § 3. R. 1787, p. 74.

Amendments

—1973 (Adj. Sess.). Amended generally by rephrasing and omitting reference to justices and adding references to district judge.

ANNOTATIONS

Judgments.

When complaint alleges forcible entry and forcible detainer and proof is only of forcible detainer, there may be conviction of that alone. Foster v. Kelsey, 36 Vt. 199, 1863 Vt. LEXIS 61 (1863).

§ 4917. Costs; verdict guilty.

In his or her writ of restitution, the district judge may order the costs taxed to be levied.

HISTORY: Amended 1973, No. 249 (Adj. Sess.), § 35, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2050. P.L. § 1998. G.L. § 2188. 1917, No. 254 , § 2151. P.S. § 1911. V.S. § 1549. R.L. § 1312. G.S. 46, § 9. R.S. 41, § 10. R. 1797, p. 201, § 4.

Amendments

—1973 (Adj. Sess.). Substituted “his” for “their” writ and “district judge” for “justices”.

§ 4918. Costs; verdict not guilty.

When the jury finds that the person complained against is not guilty, the district judge shall tax costs against the complainant, and issue execution accordingly. Costs shall not be taxed against such complainant when the party complained against does not appear at the trial.

HISTORY: Amended 1973, No. 249 (Adj. Sess.), § 36, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2051. P.L. § 1999. G.L. § 2189. 1917, No. 254 , § 2152. P.S. § 1912. V.S. § 1550. R.L. § 1310. G.S. 46, § 7. R.S. 41, § 7. R. 1797, p. 199, § 3.

Amendments

—1973 (Adj. Sess.). Substituted “district judge” for “justices”.

§ 4919. Proceedings when respondent cannot be found.

When the sheriff or his or her deputy cannot find the party against whom the warrant is issued, six business days before the time appointed for returning the same, he or she may leave a true and attested copy thereof at the usual place of abode of such person. If, at the return of the warrant, he or she cannot find or apprehend the person against whom it issued, he or she shall make a return of such fact of the time he or she so left a copy. If the party complained against does not appear at the time appointed for trial, a district judge, in his or her discretion, may adjourn or proceed with the case, but shall not impose a fine at such hearing.

HISTORY: Amended 1973, No. 249 (Adj. Sess.), § 37, eff. April 9, 1974; 2017, No. 11 , § 21.

History

Source.

V.S. 1947, § 2052. P.L. § 2000. G.L. § 2190. P.S. § 1913. V.S. § 1551. R.L. § 1311. G.S. 46, § 8. R.S. 41, §§ 8, 9. R. 1797, p. 201, § 4.

Amendments

—2017. Inserted “business” preceding “days” in the first sentence and made gender-neutral changes throughout the section.

—1973 (Adj. Sess.). Substituted “a district judge” for “the justices” and “his” for “their”.

§ 4920. Trespass for treble damages.

The complainant in an action for forcible entry and detainer, who recovers against the person complained of, may recover treble damages, with costs of suit, by an action for trespass against the offender.

History

Source.

V.S. 1947, § 2053. P.L. § 2001. G.L. § 2191. P.S. § 1914. V.S. § 1552. R.L. § 1313. G.S. 46, § 10. R.S. 41, § 11. R. 1797, p. 201, § 5. R. 1787, p. 74.

ANNOTATIONS

Waiver of provisions.

Party ejected may, if he so elects, waive penalty under statute, and sustain action of trespass qu. cl. against such disseizor, and defendant will not be permitted to set up title in himself, as a defense to such action. Dustin v. Cowdry, 23 Vt. 631, 1851 Vt. LEXIS 84 (1851).

§ 4921. Entry or detainer without force—complaint; trial; writ of restitution.

When a person wrongfully and without force obtains or continues in possession of lands or tenements, and does not quit such possession after demand made in writing for the delivery of the possession thereof by the person entitled to such possession or his or her agent or attorney, upon complaint thereof in writing to a district judge, the judge shall hear and determine the same as in cases of forcible entry and detainer, and issue a writ of restitution accordingly.

HISTORY: Amended 1973, No. 249 (Adj. Sess.), § 38, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2054. P.L. § 2002. G.L. § 2192. P.S. § 1915. V.S. § 1554. R.L. § 1315. G.S. 46, § 12. R.S. 41, § 13. R. 1797, p. 202, § 6. R. 1787, p. 74.

Amendments

—1973 (Adj. Sess.). Substituted the words “a district judge, the judge” for “to justices, such justices”.

Notes to Opinions

Nature of proceedings.

The proceedings contemplated by this and subsequent sections are of civil nature and not penal. 1942 Vt. Op. Att'y Gen. 67.

Suit under this section may properly be regarded as analogous to action of ejectment. 1942 Vt. Op. Att'y Gen. 67.

Purpose.

The obvious purport and design of section seems to be to furnish lessors a summary remedy for recovery of demised premises, where lessees, or their assignees, hold them after determination of their leases. 1942 Vt. Op. Att'y Gen. 67.

§ 4922. Mode of original process; no fine.

As in civil causes, the original process in such proceeding shall be by summons or attachment, and the person complained against shall not be fined.

History

Source.

V.S. 1947, § 2055. P.L. § 2003. G.L. § 2193. P.S. § 1916. V.S. § 1555. R.L. § 1316. G.S. 46, § 15. R.S. 41, § 16. R. 1797, p. 202, § 6.

§ 4923. Action of trespass to recover damages.

The complainant who recovers against the person complained of in an action of entry and detainer commenced under the provisions of section 4921 of this title may recover treble damages from the time of notice given to quit the premises. Up to the time of such notice, actual damages only are recoverable in an action for trespass against the offender.

History

Source.

V.S. 1947, § 2056. P.L. § 2004. G.L. § 2194. 1917, No. 254 , § 2157. P.S. § 1920. V.S. § 1559. R.L. § 1320. G.S. 46, § 19. R.S. 41, § 18. R. 1797, p. 203, § 8. R. 1787, p. 75.

§ 4924. Exceptions.

Section 4921 of this title shall not apply where a person, with or without force, holds over lands or tenements after the determination of the time for which the same were leased or demised, by a written lease or agreement accepted by the tenant or to a person holding under the lessee.

History

Source.

V.S. 1947, § 2057. P.L. § 2005. G.L. § 2195. P.S. § 1917. V.S. § 1556. R.L. § 1317. G.S. 46, § 13. R.S. 41, § 14.

§ 4925. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 4925. Former § 4925, relating to appeals, was derived from V.S. 1947, § 2058; P.L. § 2006; G.L. § 2196; P.S. § 1918; V.S. § 1557; R.L. § 1318; G.S. 46, § 20; R.. 41, § 19; 1825, No. 1 , § 4; R. 1797, p. 203, § 9; R. 1787, p. 75.

§ 4926. Limitation of action.

An action shall not be maintained under this chapter against a person who has continued in possession three years after the determination of the time for which the premises are demised or let to him or her or those under whom he or she claims, or against a person who for three years has had continuous, uninterrupted, and peaceable possession of lands, tenements, or other possessions.

History

Source.

V.S. 1947, § 2059. P.L. § 2007. G.L. § 2197. P.S. § 1919. V.S. § 1558. R.L. § 1319. G.S. 46, §§ 11, 18. R.S. 41, §§ 12, 17. R. 1797, p. 201, § 5. R. 1797, p. 202, § 7. R. 1787, pp. 74, 75.

CROSS REFERENCES

Right or title of entry, limitation of, see § 502 of this title.

Chapter 172. Foreclosure of Mortgages

History

Effective date and applicability of chapter. 2011, No. 102 (Adj. Sess.), § 6(1) provides: “Secs. 1 [which enacted this chapter 172 (§§ 4931-4970) of this title] and 2 [which repealed subchapter 6 of chapter 163 (§§ 4523-4533a) of this title] shall take effect on July 1, 2012 and shall apply to any mortgage foreclosure proceeding instituted after that date”.

Subchapter 1. General Provisions

§ 4931. Definitions.

As used in this chapter:

  1. “Agricultural activity” includes the growing, raising, and production of horticultural and silvicultural crops, grapes, berries, trees, fruit, poultry, livestock, grain, hay, and dairy products.
  2. “Dwelling house” means a residential structure or mobile home which contains one to four family housing units, or individual units of condominiums or cooperatives, other than a time-share in a unit, each of which is used or intended to be used as a residence. For the purposes of this subdivision, “time-share” means a time-share estate as defined by 32 V.S.A. § 3619(a) .
  3. “Farmland” means land devoted primarily to commercial agricultural activities.
  4. “Value” means market value less all reasonable expenses that would be incurred in selling the property. Market value for purposes of this section may be determined based on evidence of market value deemed by the court to be reasonably reliable, which may include grand list valuation and the common level of appraisal used in the town where the property is located, if the court finds such evidence to be reasonably reliable.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1; amended 2013, No. 102 (Adj. Sess.), § 4.

History

Amendments

—2013 (Adj. Sess.). Subdiv. (2): Inserted “other than a time-share in a unit,” following “cooperatives,” and added the last sentence.

§ 4932. Venue; joinder of parties; recording.

  1. Actions to foreclose a mortgage under subchapter 2 or 3 of this chapter shall be brought in the Civil Division of the Superior Court for the county where the land lies, or, if the land described in the mortgage lies in more than one county, then in one of the counties in which the land lies.
  2. The plaintiff shall file a copy of the complaint in the town clerk’s office in each town where the mortgaged property is located. The clerk of the town shall minute on the margin of the record of the mortgage that a copy of foreclosure proceedings on the mortgage is filed. The filing shall be sufficient notice of the pendency of the action to all persons who acquire any interest or lien on the mortgaged premises between the dates of filing the copy of foreclosure and the recording of the final judgment in the proceedings. Without further notice or service, those persons shall be bound by the judgment entered in the cause and be foreclosed from all rights or equity in the premises as completely as though they had been parties in the original action.
  3. If the mortgaged property is subject to a residential rental agreement, as defined in 9 V.S.A. § 4451 :
    1. The plaintiff shall join as a party defendant any person occupying the mortgaged property pursuant to a residential rental agreement as of the date the copy of the complaint is recorded in the land records. Service of the complaint on the tenant shall be sufficient if mailed to the tenant by first class mail at the address specified in the rental agreement, if the agreement is recorded, or to the “occupant” at the address of the leased premises if the agreement is not recorded.
    2. The summons and complaint served on any person occupying the premises pursuant to a residential rental agreement shall contain the following notice, written in at least 14-point type:

      THE PROPERTY IN WHICH YOU LIVE IS BEING FORECLOSED UPON. YOU ARE NAMED AS A DEFENDANT IN THE FORECLOSURE BECAUSE YOUR RIGHT TO REMAIN ON THE PREMISES MAY END WHEN THE FORECLOSURE IS COMPLETED. YOU MUST NOTIFY THE COURT OF YOUR NAME AND ADDRESS IN ORDER TO BE KEPT INFORMED OF THE STATUS OF THE FORECLOSURE.

    3. Upon receipt of the complaint, the owner of the mortgaged property shall notify each tenant who enters into a residential rental agreement that the premises are the subject of a pending foreclosure action and that, in the event the owner is unable to redeem the premises, the tenant may be required to vacate the premises upon 30 days’ notice, or upon such other notice as is required by federal law, whichever is longer. The failure of the owner to provide notice under this subsection shall not affect or invalidate the foreclosure action.
  4. All proceedings shall be before the Superior judge alone, and trial shall be without jury.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4933. Repealed. 2019, No. 20, § 105.

History

Former § 4933. Former § 4933, relating to notice to commissioner of financial regulation, was derived from V.S. 2011, No. 102 (Adj. Sess.), § 1; amended 2017, No. 11 , § 22.

§ 4934. Supplemental judgment joining parties; recording.

At any time, without further notice or service on the purchaser or mortgagor or lienholder whose interest in the property being foreclosed first arose after the filing of the complaint in the town clerk’s office, and upon filing certified copies of the deed, mortgage, or attachment with the clerk of the court by the plaintiff in the foreclosure action, any Superior judge may sign a supplemental judgment specifically naming that party. Reference to the deed, mortgage, or lien and the supplemental judgment may be filed in the town clerk’s office for record, and it shall have the same force and effect as though that person had been made a party defendant in the original action.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4935. Taxes paid by mortgagee.

A tax assessed upon mortgaged real estate in this State may be paid by the mortgagee or assignee of the mortgage upon such property. The amount so paid, including costs, if any, shall thereupon be added to and become a part of the debt or obligation secured by such mortgage.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4936. Foreclosure of real or personal property.

A mortgage or a security agreement constituting a lien on both real and personal property to secure the payment of a debt, whether evidenced by one or more instruments, may be foreclosed in an action under subchapter 2 or 3 of this chapter.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4937. Attorney’s fees.

When a mortgage contains an agreement on the part of the mortgagor to pay the mortgagee, in the event of foreclosure, the attorney’s fees incident thereto, and claim is made therefor in the complaint, upon hearing, the court in which the complaint is brought shall allow such fee as in its judgment is just.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4938. Effect on bankruptcy proceedings.

Nothing in this chapter shall be construed to supersede any provision of Title 11 of the United States Code.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

History

References in text.

Title 11 of the United States Code, referred to in this section, is codified as 11 U.S.C. § 101 et seq.

§ 4939. Appeals.

When a judgment is for the foreclosure of a mortgage, permission of the court shall be required for review.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

Subchapter 2. Strict Foreclosure

§ 4941. Decree foreclosing equity of redemption; writ of possession.

  1. In any action for foreclosure with regard to any mortgage encumbering property, the court may, if no sale is requested by the plaintiff or ordered by the court pursuant to subsection (b) of this section, issue a judgment and decree of foreclosure without requiring a judicial sale of the premises.
  2. In an action brought under subsection (a) of this section, any party may by written motion request, or the court in its discretion may order, that property be sold at a judicial foreclosure sale, whether or not the mortgage contains a power of sale.
  3. No decree foreclosing the right of redemption without sale shall be issued absent a finding by the court that there is no substantial value in the property in excess of the mortgage debt found by the court to be due to the plaintiff and any other lienholder, plus assessed but unpaid property taxes due on the property. The court shall include in its order a summary of the evidence upon which its finding is based.
  4. If a decree is issued foreclosing the right of redemption without sale, the time of redemption shall be six months from the date of the decree unless a shorter time is ordered, or the mortgagor and mortgagee plaintiff agree to a shorter period. The court shall fix the period of redemption taking into consideration whether there is value in the property in excess of the mortgage debt and debt owed to junior lienholders, any assessed but unpaid property taxes, the condition of the property, and any other equities.
  5. If the premises are not redeemed agreeably to the decree, the clerk of the court shall issue a writ of possession at the plaintiff’s request. Such writ shall have the same force and effect and be executed in the same manner as similar writs issued after judgment by a court of law in ejectment proceedings. Where the premises are occupied by a residential tenant, the writ shall be served on the tenant, and the plaintiff shall be placed in possession of the property without further proceedings not sooner than 30 days after the writ is served, or upon such other time as is required by federal law, whichever is longer.
    1. In an action for foreclosure under this section, if a lien or interest in such realty is held by any person or federal agency which may not be foreclosed by strict foreclosure pursuant to federal law, the court shall proceed in accordance with subchapter 3 of this chapter. (f) (1) In an action for foreclosure under this section, if a lien or interest in such realty is held by any person or federal agency which may not be foreclosed by strict foreclosure pursuant to federal law, the court shall proceed in accordance with subchapter 3 of this chapter.
    2. In an action for foreclosure, if a lien or interest in such realty is held by any person or federal agency which may not be foreclosed by strict foreclosure pursuant to federal law, a decree may be entered providing for such period of redemption as the court may determine, and providing for a sale of the mortgaged premises at the conclusion of such period if the premises are not redeemed, and for the time, manner, and notice of sale, if required, and the application of any proceeds.
  6. In an action for foreclosure under this section, where the time of redemption has expired, the party obtaining the foreclosure shall cause a certified copy of the judgment and the certificate of nonredemption to be recorded in the office where by law a deed of the lands is required to be recorded.
  7. If the plaintiff complies with subsection (g) of this section, the expiration of the right of redemption under the decree shall foreclose the interest of subsequent purchasers, mortgagees, or attaching creditors whose interest in the property being foreclosed first arose after the filing of the complaint for foreclosure in the land records as provided in section 4932 of this chapter.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

Subchapter 3. Foreclosure by Judicial Sale

§ 4945. Judicial sale foreclosure.

  1. All liens and mortgages affecting real property may, on the written motion of any party to any suit for foreclosure of such liens or mortgages, or at the discretion of the court before which the foreclosure proceedings are pending, be foreclosed by a judicial foreclosure sale, even if the mortgage does not contain a sale provision instead of a strict foreclosure.
  2. In an action for foreclosure, if a lien or interest in such realty is held by any person or federal agency which may not be foreclosed by strict foreclosure pursuant to federal law, a decree may be entered providing for such period of redemption as the court may determine, and providing for a sale of the mortgaged premises at the conclusion of such period if the premises are not redeemed, and for the time, manner, and notice of sale, if required, and the application of the proceeds therefrom.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4946. Procedure.

  1. Order for judicial sale.   Upon entry of a decree of judicial sale foreclosure, the court shall order that the mortgaged property be sold at a public sale if it is not redeemed within the time period allowed by the court. The public sale shall be conducted on or before six months from the expiration of the last redemption date set forth in the decree unless extended by the court or stayed by a bankruptcy filing. The time and manner of the sale shall be specified in the notice of sale required by section 4952 of this title.
  2. Time for redemption; owner-occupied dwelling house or farmland.   If a decree is made foreclosing the right of redemption by judicial sale with respect to farmland or a dwelling house that is occupied by the owner as his or her principal residence at the time the plaintiff applies for entry of judgment, the time of redemption shall be established by the court and shall be six months from the date of the decree, unless a shorter time is ordered by the court. The court shall fix the period of redemption taking into consideration whether there is value in the mortgaged property in excess of the mortgage debt and debt owed to junior lienholders, any assessed but unpaid property taxes, the condition of the mortgaged property, and any other equities. No sale of a dwelling house when occupied by the owner as his or her principal residence at the time the plaintiff applies for entry of judgment may take place within seven months of service of the foreclosure complaint, unless the court orders a shortened redemption period pursuant to this section or the plaintiff and the mortgagor mutually agree to a shorter period after commencement of the action to foreclose the mortgage.
  3. Time for redemption; other property.   If a decree is made foreclosing the right of redemption by judicial sale with respect to any property other than farmland or a dwelling house that is occupied by the owner as his or her principal residence at the time the plaintiff applies for entry of judgment, the redemption period shall be eliminated or reduced by the court to no more than 30 days.
  4. Writ of possession.   Upon expiration of the period of redemption in the decree, other than farmland or a dwelling house when currently occupied by the owner as his or her principal residence, if the mortgagor or the mortgagor’s successors, heirs, or assigns have not redeemed the mortgage, any remaining rights of the mortgagor to possession shall terminate, and the clerk of the court shall issue a writ of possession at the plaintiff’s request and upon court approval. In the case of farmland or a dwelling house currently occupied by the owner as his or her principal residence when the period of redemption in the decree expires, the clerk shall issue a writ of possession at the plaintiff’s request and upon approval of the court. Such writ shall have the same force and effect and be executed in the same manner as similar writs issued after judgment by a court of law in ejectment proceedings. Where the mortgaged property is occupied by a residential tenant, the writ shall be served on the tenant, and the plaintiff shall be placed in possession of the mortgaged property without further proceedings no sooner than 30 days after the writ is served, or upon such other time as is required by federal law, whichever is longer.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4947. Foreclosure of equity of redemption; recording.

  1. In an action for foreclosure under this subchapter where the time of redemption has expired, the party obtaining the foreclosure shall cause a certified copy of the judgment and the certificate of nonredemption to be recorded in the office where by law a deed of the lands is required to be recorded.
  2. If the plaintiff complies with subsection (a) of this section, the expiration of the right of redemption under the decree shall foreclose the interest of subsequent purchasers, mortgagees, or attaching creditors whose interest in the property being foreclosed first arose after the filing of the complaint for foreclosure in the land records as provided in section 4932 of this chapter.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4948. Reinstatement of mortgage prior to sale.

  1. Upon agreement of the mortgagor and mortgagee, the mortgagor may reinstate or modify the loan after the expiration of the redemption period set forth in the judgment order but before the public sale. Upon reinstatement or modification of the loan, the mortgagee shall execute a waiver of foreclosure and, after receiving court approval, record it in the land records of the city or town where the mortgaged property lies. Upon recording, the waiver of foreclosure shall operate to terminate the foreclosure and restore the parties and all junior lienholders to the positions they held prior to the filing of the foreclosure, as amended by any modification agreement between the mortgagor and mortgagee.
  2. The following form of waiver of foreclosure may be used. Nothing herein shall be construed to prevent the use of other forms or to prevent alteration of the form as circumstances require:

    Click to view

WAIVER OF FORECLOSURE MORTGAGEE, holder of record of a mortgage deed dated , 20 and of record in Book at Page of the City/Town of Land Records (“the Mortgage”) executed and delivered to it by MORTGAGOR(S) covering real estate located in the Town of , Vermont hereby acknowledges and agrees: 1. For the breach of the condition of the Mortgage, MORTGAGEE initiated a foreclosure action against MORTGAGOR by Complaint for Foreclosure dated , 20 which is of record in Book at Page of the Town of Land Records. 2. That MORTGAGOR(S) has/have now cured the default and requested reinstatement of the Mortgage and the MORTGAGEE agrees to reinstate the mortgage, as amended by any modification agreement between the mortgagor and mortgagee. NOW THEREFORE, MORTGAGEE does hereby acknowledge that it has received payment of the arrearages due it under the Mortgage and the promissory note which it secures, and in consideration thereof, does hereby waive the above-entitled foreclosure action and release unto said MORTGAGOR, his/her/its heirs, personal representatives, successors, and assigns, all claims asserted in the foreclosure action. THE MORTGAGE IS NOT DISCHARGED. This waiver is given pursuant to . This waiver shall have no effect on the Mortgage referenced above other than to reinstate the same, as amended by any agreement between the mortgagor and mortgagee, and the rights of all parties named in the foreclosure action, as well as the rights of any junior lienholders, remain intact, except as amended by any agreement between the mortgagor and mortgagee, as if no foreclosure had been commenced. 12 V.S.A. § 4948 IN WITNESS WHEREOF, the said MORTGAGEE has caused this instrument to be executed by its duly authorized agent this day of , 20. MORTGAGEE By: Its Duly Authorized Agent Printed Name: State of County of At in said County and State, then personally appeared the above-named duly authorized agent who acknowledged the foregoing waiver of foreclosure to be his/her free act and deed and the free act and deed of the MORTGAGEE. Before me, Printed Name: Notary Public My Commission expiration The request for waiver of foreclosure is SO ORDERED this day of , 20. Superior Court Judge

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4949. Mortgagor’s redemption prior to judicial sale.

  1. The mortgagor is entitled to redeem the premises at any time prior to the public sale by paying the full amount due under the judgment order and such other amounts, including costs and expenses of sale, accruing postjudgment as agreed upon by the mortgagor and mortgagee or ordered by the court.
  2. Upon agreement of the parties, the mortgagor may redeem the premises at any time prior to the public sale by paying less than the full amount due under the judgment order. In such case, the parties to the foreclosure shall, with court approval, amend the redemption amount. Upon payment of the amended redemption amount, the court shall issue a Supervening Certificate of Redemption as evidence that the judgment amount was redeemed. Upon the recording of a certified copy of the Supervening Certificate of Redemption in the land records, the foreclosed mortgage shall be of no further force or effect and any junior lienholder shall return to the position it held prior to the filing of the foreclosure.
  3. The redemption right established by this section shall be in addition to the redemption right set forth in the decree.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4950. [Reserved.]

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4951. Judgment vacated.

Notwithstanding any provision to the contrary in this chapter or other law, the mortgagor and mortgagee may stipulate and move to vacate the judgment at any time prior to the public sale. If the court approves the motion, the judgment shall be vacated and all parties, the property, and any lienholders of record in the land records will be restored to their original positions as if no foreclosure had been commenced and no judgment entered. Notwithstanding any other provision of law, this section will apply retroactively and apply to orders to vacate in existence on July 1, 2012.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

History

Revision note

—2017. Substituted “July 1, 2012” for “the effective date of this section” in accordance with V.S.A. style.

§ 4952. Sale procedures.

  1. Generally.   If the mortgaged property is not redeemed, the plaintiff shall sell the mortgaged property in accordance with this section, complying with all court orders and applicable power of sale provisions.
  2. Notice of sale; publication.   Notice of sale shall be published once in each of three successive weeks in a newspaper of general circulation in the town where the land lies, the first publication to be no fewer than 21 days before the day of sale.
  3. Notice of sale; service.   A copy of the notice of sale shall be mailed by first class mail, postage prepaid, to all parties who appeared in the foreclosure action or to their attorneys of record. If the mortgagor has not appeared in the foreclosure action, a copy of the notice of sale shall also be mailed by first class mail, postage prepaid, to the mortgagor at the mortgagor’s last known address. The notice of sale shall include the specific date, time, and location of the sale and shall be mailed after the last date of redemption in the decree but not fewer than 30 days before the date of the sale.
  4. Notice of sale; waiver.   Any party entitled to be sent notice under this section may, either before or after the foreclosure sale, waive the party’s right to receive notice, in which case no foreclosure sale shall be invalid or ineffectual to foreclose that party’s rights under the mortgage. This subsection shall not apply to farmland or to a dwelling house unless approved by the court at or before the confirmation of sale.
  5. Notice of sale; form.   The following form of notice of sale may be used and may be altered as circumstances require, but nothing herein shall be construed to prevent the use of other forms:

    Click to view

By virtue and in execution of the Power of Sale contained in a certain mortgage given by to and recorded in Volume of the land records of the municipality of , of which mortgage the undersigned is the present holder (if by assignment, or in any fiduciary capacity, give reference) for breach of the conditions of said mortgage and for the purpose of foreclosing the same will be sold at Public Auction at (place) at o’clock, M. on the day of , 20 all and singular the premises described in said mortgage, (In case of partial releases, state exceptions.) To wit: (Legal description of the premises.) Terms of sale: (State here the amount, if any, to be paid in cash by the purchaser at the time of the sale, and the schedule for payment of the balance and other terms of sale.) The mortgagor is entitled to redeem the premises at any time prior to the sale by paying the full amount due under the mortgage, including the costs and expenses of the sale. Other terms to be announced at the sale or inquire at Signed: Mortgagee (may be signed by mortgagee’s attorney) Dated: , 20.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4953. Conduct and location of sale.

  1. Location.   The sale shall be held at the mortgaged property unless another place for sale is directed by the court. At the sale, the mortgaged property shall be sold to the highest bidder in conformance with the terms of sale set forth in the notice of sale.
  2. Adjournments.   The public sale may be adjourned one or more times for a total time not exceeding 30 days, without further court order, and without publication or service of a new notice of sale, by announcement of the new sale date to those present at each adjournment or by posting notice of the adjournment in a conspicuous place at the location of the sale. Notice of the new sale date shall also be sent by first class mail, postage prepaid, to the mortgagor at the mortgagor’s last known address at least five days before the new sale date. The public sale may be adjourned for a period of time in excess of 30 days by agreement of the mortgagor and mortgagee or by order of the court.
  3. Permitted bidders.   Any person may bid at the sale. All bidders, except for the mortgagee plaintiff or designee, shall meet the requirements set forth in the notice of sale in order to bid at the sale.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4954. Procedure following sale.

  1. Confirmation order.   Following the sale, the plaintiff shall file with the court a report on oath of the sale, together with a request for confirmation of the sale, which shall include an accounting of the sale proceeds, and a proposed order confirming the sale. Copies of the report of the sale and request for confirmation shall be mailed by first class mail, postage prepaid, to all parties who appeared in the foreclosure action or to their attorneys of record and to the mortgagor at the mortgagor’s last known address. The court may issue an order of confirmation of the sale without hearing, unless the court in its discretion determines that a hearing is necessary. The order of the court confirming the sale shall be conclusive evidence as against all persons that the foreclosure and sale were conducted in accordance with this section.
  2. Transfer of title.   The confirmation order shall be recorded in the land records of the town where the mortgaged property is located and shall transfer title to the mortgaged property to the purchaser upon recording.
  3. Disbursement of proceeds.   In the event that the proceeds of the sale, after first deducting the reasonable expenses incurred in making the sale, exceed the amounts due to the plaintiff at the time of sale, the confirmation order shall provide for the payment of the surplus to other lienholders of record in the order of the priority of their liens. In the event that the proceeds of the sale exceed the amount due to the plaintiff and the amount due to the other defendants, the excess shall be paid to the defendant mortgagor.
  4. Deficiency.   The plaintiff may request a deficiency judgment in the foreclosure complaint. The court may assess a judgment against the mortgagor for the deficiency if the proceeds of sale are insufficient to meet the expenses incurred in making the sale and the amount due to the plaintiff. If the plaintiff seeks a deficiency judgment, it shall be requested prior to issuance of the confirmation order. Failure to request a deficiency judgment shall be deemed a waiver of any deficiency judgment against a mortgagor.
  5. Failure of sale; resale.   In the event that the purchaser fails to pay the balance of the purchase price according to the terms of the sale, then, upon the request of the plaintiff, the down payment shall be forfeited and the court shall issue an order vacating the confirmation order. Upon motion and after hearing, the court may issue a confirmation order to the second highest bidder.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

ANNOTATIONS

Authority of court.

High bidder’s successful bid in a judicial sale and the court’s subsequent confirmation of the foreclosure sale renders a buyer a limited party such that the court is authorized to issue orders directing the buyer’s action relative to the property’s purchase. Thus, the trial court had the authority to order the buyer to act. People's United Bank, NA v. Alana Provencale, Inc., 2018 VT 46, 207 Vt. 362, 189 A.3d 71, 2018 Vt. LEXIS 46 (2018).

Deficiency judgments.

Considering this overall language and context of the statute governing procedure following a foreclosure by judicial sale, the Vermont Supreme Court concludes that the statute provides trial courts with the discretion to deny deficiency judgments. The legislature could have used “shall” instead of “may,” if it intended to require courts to mechanically grant deficiency judgments where the amount owed exceeds “the proceeds of [the] sale”; but it did not because a foreclosure action, even when by sale, remains an equity action. New Eng. Phoenix Co. v. Grand Isle Veterinary Hosp., 2022 VT 10, — Vt. —, 275 A.3d 134, 2022 Vt. LEXIS 9 (Vt. 2022).

Failure of sale.

Because neither of the potential statutory remedies for failure of a foreclosure by judicial sale were invoked by the bank, the trial court was not limited to application of either of them and could consider the appropriateness of other remedies. People's United Bank, NA v. Alana Provencale, Inc., 2018 VT 46, 207 Vt. 362, 189 A.3d 71, 2018 Vt. LEXIS 46 (2018).

Second sale ordered.

When appellant’s bid was relatively low, the foreclosure judgment lacked an explicit in-person bidding requirement, and there was significant uncertainty as to the status of the bank’s competing virtual bid, the trial court was presented with sufficient evidence to create reasonable apprehension and concern surrounding the integrity of the first sale. Thus, its decision to refuse to confirm the first sale and to order a second sale with the in-person bidding requirement explicitly stated was not an abuse of discretion. HSBC Bank USA N.A. v. McAllister, 2018 VT 9, 206 Vt. 445, 182 A.3d 593, 2018 Vt. LEXIS 6 (2018).

Subchapter 4. Foreclosure by Nonjudicial Sale

§ 4961. Power of nonjudicial sale.

Whether or not a power of sale is contained in a mortgage relating to any property, except for farmland or a dwelling house owned by a natural person, instead of a suit and decree of foreclosure, the mortgagee may, upon breach of mortgage condition, foreclose upon the property without first commencing a foreclosure action or obtaining a foreclosure decree by complying with the terms of this subchapter. No sale under and by virtue of a nonjudicial power of sale shall be valid and effectual to foreclose the mortgage unless the conditions of this subchapter are complied with.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4962. Notice of intention to foreclose.

  1. At least 30 days prior to service of a notice of sale pursuant to subsection 4952(c) of this title, notice of intention to foreclose in a writing complying with this section shall be sent to the mortgagor by registered or certified mail at his or her last known address.
  2. The writing required by this section shall state, in a manner calculated to make the mortgagor aware of the situation:
    1. the mortgage to be foreclosed;
    2. the mortgage condition claimed to have been breached;
    3. that the mortgagee has accelerated maturity of the debt secured by the mortgage, if that is the case;
    4. the amount to be paid or other action necessary to cure, and the time within which the cure must take place, which shall be not less than 30 days after the date of the notice of intention to foreclose;
    5. the intention of the mortgagee to foreclose by exercising the power of sale contained in the mortgage, if the breach of the mortgage condition is not cured within the time and in the manner specified in the notice; and
    6. that the mortgagor will be entitled to be sent notice of the foreclosure sale at least 60 days prior to the sale and to redeem the mortgaged property at any time prior to the sale by paying the full amount due under the mortgage, including the costs and expenses of the sale.
    1. The following notice of intent to foreclose form may be used and may be altered as circumstances require: (c) (1) The following notice of intent to foreclose form may be used and may be altered as circumstances require:
    2. This subsection shall not be construed to prevent the use of other forms except that all notices shall comply with the provisions of subsection (b) of this section.

    Click to view

PLEASE TAKE NOTICE that you have defaulted under Loan No. by [mortgage condition breached] required by your Promissory Note dated , 20. This default also constitutes a breach of the Mortgage, dated , 20, recorded in Volume at Page of the Land Records, which secures the Loan. As a result of your default, we have accelerated the maturity of all indebtedness due on the Loan and secured by the Mortgage, totaling $ as of today’s date. In order to cure this default, you must pay to us on or before [a date not less than thirty (30) days after the date of this Notice] the sum of $ , plus interest at the rate of $ per day to the date of payment. If you do not cure this default by making the payments required, it is our intention to foreclose by exercising the power of sale contained in the above Mortgage. You will be sent notice of the foreclosure sale at least sixty (60) days prior to the sale, and you will be entitled to redeem your interest in the mortgaged property at any time prior to the sale by paying the full amount due under the Mortgage, including the costs and expenses of the sale. If you do not cure the default or redeem your interest, your ownership of the mortgaged property will be terminated.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4963. Publication of notice of sale.

Notice of a sale conducted pursuant to this subchapter shall be published once in each of three successive weeks, in a newspaper of general circulation in the town where the land lies, the first publication to be not less than 21 days before the day of sale.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4964. Recording.

The mortgagee shall record the notice of sale in the land records of the town or city where the land lies not less than 60 days prior to the sale. The filing of the notice of the sale shall be in lieu of filing a foreclosure complaint under section 4932 of this title and shall be sufficient notice of the pendency of the nonjudicial foreclosure by power of sale to all persons who acquire any interest or lien in the mortgaged property between the dates of recording the notice of sale and recording the foreclosure deed. Without further notice or service, those persons shall be bound by the power of sale and the foreclosure deed and shall be foreclosed from all rights or equity in the mortgaged property.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4965. Service; form.

    1. In all cases, unless service is waived under subsection 4966(g) of this title, a copy of the notice of sale shall be served on the mortgagor or his or her representative in interest by: (a) (1) In all cases, unless service is waived under subsection 4966(g) of this title, a copy of the notice of sale shall be served on the mortgagor or his or her representative in interest by:
      1. sending the notice by registered or certified mail addressed to the mortgagor or such representative at his or her last known address, or to such person and address as may be agreed upon in said mortgage, at least 60 days before said sale; or
      2. serving the notice in any manner authorized by the Vermont Rules of Civil Procedure.
    2. As used in this section, “mortgagor” shall mean the mortgagor or the then record owner of the mortgaged property.
    1. A copy of the notice of sale shall be sent to any tenant lawfully occupying the mortgaged property and to any person having a recorded interest in the mortgaged property of record which will be foreclosed by the sale, provided that the interest is recorded in the applicable land records prior to the recording of the notice of sale. The notice required by this subsection shall be sent not less than 60 days before the sale. Notice to a tenant shall be sufficient if mailed to the tenant by first class mail at the address specified in the lease, if recorded, or to the occupant at the address of the mortgaged property, if the lease is not recorded. (b) (1) A copy of the notice of sale shall be sent to any tenant lawfully occupying the mortgaged property and to any person having a recorded interest in the mortgaged property of record which will be foreclosed by the sale, provided that the interest is recorded in the applicable land records prior to the recording of the notice of sale. The notice required by this subsection shall be sent not less than 60 days before the sale. Notice to a tenant shall be sufficient if mailed to the tenant by first class mail at the address specified in the lease, if recorded, or to the occupant at the address of the mortgaged property, if the lease is not recorded.
    2. Compliance with this subsection shall be sufficient with respect to persons entitled to receive notice under subdivision (1) of this subsection, and the failure to give additional notice shall not be grounds to invalidate the sale. Any mortgagor or junior lienholder who refuses to accept or claim mailed or served notice or who frustrates attempts by the mortgagee to give notice of the sale by failing to give or leave a forwarding address or by other acts or omissions shall be deemed to be notified of the sale, provided that such mortgagee shall have made a good faith effort to provide such notice.
    1. The following notice of sale form may be used and may be altered as circumstances require: (c) (1) The following notice of sale form may be used and may be altered as circumstances require:
    2. This subsection shall not be construed to prevent the use of other forms. A notice of sale shall be sufficient if it fully sets forth the date, time, and place of sale; the town, county, street, or highway and street number, if any, of the mortgaged premises; the date of the mortgage; the volume and page of the recording of the mortgage; the terms of the sale; the statement language required by subdivision (d)(1) of this section; and notice of the right to redeem.

    Click to view

    1. The notice of the sale shall include the following statement: “The mortgagor and all junior lienholders are hereby notified that at any time before the foreclosure sale, the mortgagor and all junior lienholders have a right to petition the Civil Division of the Superior Court for the county in which the mortgaged property is situated, with service upon the mortgagee, and upon such bond as the court may require, to enjoin the scheduled foreclosure sale. Failure to institute such petition and complete service upon the foreclosing party, or the party’s agent, conducting the sale prior to sale shall thereafter bar any action or right of action of the mortgagor or any junior lienholder based on the validity of the foreclosure, the right of the mortgagee to conduct the foreclosure sale, or compliance by the mortgagee with the notice requirements and other conditions of this section. An action to recover damages resulting from the sale of the mortgaged property on the date of the sale may be commenced at any time within one year following the date of the sale, but not thereafter.” (d) (1) The notice of the sale shall include the following statement: “The mortgagor and all junior lienholders are hereby notified that at any time before the foreclosure sale, the mortgagor and all junior lienholders have a right to petition the Civil Division of the Superior Court for the county in which the mortgaged property is situated, with service upon the mortgagee, and upon such bond as the court may require, to enjoin the scheduled foreclosure sale. Failure to institute such petition and complete service upon the foreclosing party, or the party’s agent, conducting the sale prior to sale shall thereafter bar any action or right of action of the mortgagor or any junior lienholder based on the validity of the foreclosure, the right of the mortgagee to conduct the foreclosure sale, or compliance by the mortgagee with the notice requirements and other conditions of this section. An action to recover damages resulting from the sale of the mortgaged property on the date of the sale may be commenced at any time within one year following the date of the sale, but not thereafter.”
    2. The mortgagor and all junior lienholders shall have the rights contained in the notice provided for in this subsection.

By virtue and in execution of the Power of Sale contained in a certain mortgage given by dated and recorded in Volume Page of the land records of the town of , of which mortgage the undersigned is the present holder (if by assignment, or in any fiduciary capacity, give reference) for breach of the conditions of said mortgage and for the purpose of foreclosing the same will be sold at Public Auction at o’clock, M. on the day of 20, (place) at the mortgaged property. To wit: (Legal description of the mortgaged property and in case of partial releases, state exceptions.) Terms of sale: (State here the amount, if any, to be paid in cash by the purchaser at the time of the sale, and the schedule for payment of the balance.) The mortgagor and all junior lienholders are entitled to redeem the mortgaged property at any time prior to the sale by paying the full amount due under the mortgage, including the costs and expenses of the sale. Other terms to be announced at the sale or inquire at (Signed) Mortgagee (may be signed by mortgagee’s attorney) 20

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4966. Conduct and location of sale.

  1. The sale shall be held at the mortgaged property except that it may be held elsewhere if agreed to in writing by the mortgagor and the mortgagee not less than 60 days nor more than 90 days before the sale. At the sale, the mortgaged property shall be sold to the highest bidder in conformance with the terms of sale set forth in the foreclosure notice.
  2. The mortgagor shall be entitled to redeem the mortgaged property at any time prior to the sale by paying to the mortgagee the full amount due under the mortgage, including the costs and expenses of the sale.
  3. The public sale may be adjourned one or more times for a total time not exceeding 60 days by announcement of the new sale date to those present at each adjournment or by posting notice of the adjournment in a conspicuous place at the location of the sale. Written notice of the new sale date shall also be given by first class mail, postage prepaid, to any person who received notice of the sale pursuant to section 4965 of this title.
  4. Any person may bid at the sale. All bidders, except for the mortgagee plaintiff or designee, shall meet the requirements set forth in the notice of sale in order to bid at the sale.
  5. In the event that the proceeds of sale, after first deducting the reasonable expenses incurred in making the sale, exceed the amounts due to the mortgagee at the time of sale, the surplus shall be paid to other lien holders of record in the order of the priority of their liens. In the event that the proceeds of sale exceed the amount due to the mortgagee and the amounts due to the other lien holders, the excess shall be paid to the mortgagor. The mortgagee or person conducting the sale may interplead any sale proceeds in excess of the indebtedness and expenses secured by the mortgage in the event there are any liens of record against the real estate.
  6. This section shall not preclude the mortgagee from maintaining a subsequent action against the mortgagor for any deficiency.
  7. Any party entitled to be sent notice under this section may, either before or after the foreclosure sale, waive the party’s right to receive notice, in which case no foreclosure sale shall be invalid or ineffectual to foreclose that party’s rights under the mortgage. A waiver of notice authorized or validated under this section shall be recorded in the land records in the town or city where the property is located.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4967. Recording following sale.

  1. Within 90 days after the sale, the mortgagee selling pursuant to the power shall cause the foreclosure deed and an accompanying affidavit to be recorded in the land records of the town where the property is situated. The affidavit setting forth fully and particularly the mortgagee’s acts with respect to the sale of the mortgaged property, including the dates that notices of the sale were published, shall set forth facts showing that no person in interest is in the military service as defined in the Service Members Civil Relief Act of 2003. The affidavit or a duly certified copy thereof shall be admissible in evidence on the issue of whether the power of sale was duly executed.
  2. If the recording required by this section is prevented by an order or stay of any court, the time for such recording shall be extended until 10 days after the expiration or removal of such order or stay.
  3. If the recording required by this section is made more than 60 days after the sale, the affidavit shall state why the recording was not made earlier.
  4. Failure to record the deed and affidavit within the statutory period required by this subsection shall render the sale void and of no effect only as to liens or other encumbrances of record intervening between the day of the sale and the time of recording of the deed and affidavit.
  5. Correction of error. In case of an alleged error or omission in the affidavit, the court, on petition and after notice to interested parties, may validate the affidavit or authorize the recording of an affidavit amending, correcting, or in substitution for an affidavit so recorded, and the affidavit so authorized to be recorded or a certified copy of the record thereof shall have the same effect and shall be admitted in evidence as if it had been recorded within the 90-day period required by this section.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4968. Transfer of title.

Title to the foreclosed mortgaged property under this section shall not pass to the purchaser until the time of the recording of the deed and affidavit. Upon such recording, title to the mortgaged property shall pass to the purchaser free and clear of all interests and encumbrances which do not have priority over such mortgage.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4969. Failure of sale; resale.

If the purchaser does not pay the balance of the purchase price according to the terms of the sale, and at the option of the mortgagee, the down payment, if any, shall be forfeited and the foreclosure sale shall be void.

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

§ 4970. Form and effect of foreclosure deed.

  1. The foreclosure deed shall be in substantially the following form:

    Click to view

  2. A deed substantially in the form set forth in subsection (a) of this section shall, when duly executed and delivered, have the force and effect of a deed in fee simple to the grantee, heirs, successors, and assigns, to their own use, with covenants on the part of the mortgagee, for himself or herself, that, at the time of the delivery of such deed, the mortgagee was duly authorized to make sale of the mortgaged property; that in all of the mortgagee’s proceedings in the sale thereof, the mortgagee has complied with the requirements of this subchapter; and that the mortgagee will warrant and defend the same to the grantee, heirs, successors, and assigns against the lawful claims of all persons claiming by, from, or under him or her.

of County, State of , holder of a mortgage from to dated , recorded in Book at Page of the Town of Land Records, by the power conferred by said mortgage and every other power, for dollars paid, grant to , (complete mailing address) , of Street, Town (City) of , County, State of , the premises conveyed by said mortgage. (Here add acknowledgment)

HISTORY: Added 2011, No. 102 (Adj. Sess.), § 1.

Chapter 173. Forfeiture of Grants

§ 4981. Grant defined; acts of incorporation.

The word “grant” as used in this chapter shall mean grants or charters of lands lying in this State, made by the king of Great Britain, or by this State or any other government; acts of the General Assembly granting to individuals rights or privileges not common to all the citizens of the State; and acts of incorporation for any purpose.

History

Source.

V.S. 1947, § 2060. P.L. § 2008. G.L. § 2198. P.S. § 1921. V.S. § 1566. R.L. § 1327. G.S. 44, § 1. R.S. 39, § 1. 1824, p. 26. R. 1797, p. 473, § 7.

CROSS REFERENCES

Corporations, see Title 11.

Property, see Title 27.

§ 4982. Grantee defined.

The word “grantee” as used in this chapter shall mean the person to whom such land, rights, or privileges were granted, and the representatives or assigns of such persons, or the corporation thus created.

History

Source.

V.S. 1947, § 2061. P.L. § 2009. G.L. § 2199. P.S. § 1922. V.S. § 1567. R.L. § 1328. G.S. 44, § 2. R.S. 39, § 2.

§ 4983. Grounds for forfeiture of grants.

Grants may be adjudged forfeited for the nonperformance of a condition annexed to or contained in such grant, whether expressed, or from the nature of the grant, clearly implied.

History

Source.

V.S. 1947, § 2062. P.L. § 2010. G.L. § 2200. P.S. § 1923. V.S. § 1568. R.L. § 1329. G.S. 44, § 3. R.S. 39, § 3.

ANNOTATIONS

Non-user.

While franchise may be adjudged forfeited upon proof of long continued and intentional non-user, it can be only in a court of law and in a proceeding to test the right. Ottauquechee Woolen Co. v. Newton, 57 Vt. 451, 1885 Vt. LEXIS 81 (1885).

Cited.

Cited in State v. Central Vermont Ry., 153 Vt. 337, 571 A.2d 1128, 1989 Vt. LEXIS 253 (1989).

§ 4984. Effect of judgment.

When a grant is adjudged forfeited, the grantee shall thereby be divested of the rights, benefits, and privileges derived therefrom. The grant shall be considered vacated and the thing granted shall revert to the State.

History

Source.

V.S. 1947, § 2063. P.L. § 2011. G.L. § 2201. P.S. § 1924. V.S. § 1569. R.L. § 1330. G.S. 44, § 4. R.S. 39, § 4. R. 1797, p. 472, § 5.

§ 4985. Mode of process; venue.

The mode of process shall be by summons and complaint and the action shall be held in the Superior Court of the county in which the land lies, if it is a grant of land. If it is an act of incorporation, the action shall be held in the county in which any part of the business of the corporation is done, or, by the terms of the act, should be done.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 144, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2064. P.L. § 2012. G.L. § 2202. P.S. § 1925. V.S. § 1570. R.L. § 1331. G.S. 44, § 5. R.S. 39, § 5. R. 1797, p. 470, § 2.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Quo warranto.

The mode of process, by which the corporate franchises of an incorporated trust company may be adjudged forfeited, is by writ of scire facias, under this section, prosecuted in the name of the State, and not by complaint for a writ of quo warranto, prosecuted in the name of a private person. Green v. St. Albans Trust Co., 57 Vt. 340, 1885 Vt. LEXIS 53 (1885).

§ 4986. Prosecution of complaint.

The complaint shall be prosecuted in the name of the State by the State’s Attorney of the county in which the action is pending.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 145, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2065. P.L. § 2013. G.L. § 2203. P.S. § 1926. V.S. § 1571. R.L. § 1332. G.S. 44, § 6. R.S. 39, § 6. R. 1797, p. 470, §§ 2, 3.

Amendments

—1971 (Adj. Sess.). Rephrased and substituted reference to complaint for references to writ.

§ 4987. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 4987. Former § 4987, relating to notice by publication for forfeiture of grants, was derived from V.S. 1947, § 2066; 1945, No. 29 , § 18; P.L. § 2014; G.L. § 2204; 1917, No. 254 , § 2167; P.S. § 1927; V.S. § 1572; R.L. § 1333; G.S. 44, § 7; R.S. 39, § 7; 1829, No. 5 ; R. 1797, p. 470, § 2.

Such section is now covered by V.R.C.P. 4(e)-(g).

§ 4988. Prosecution by State’s Attorney.

On the application of 20 or more freeholders of the county, the State’s Attorney shall commence and prosecute the action against a corporation, if, in his or her opinion, the grant of the corporation is forfeited, and the public good requires that it should be adjudged forfeited.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 146, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2067. P.L. § 2015. G.L. § 2205. P.S. § 1928. V.S. § 1573. R.L. § 1334. G.S. 44, § 8. R.S. 39, § 8.

Amendments

—1971 (Adj. Sess.). Rephrased and added reference to actions.

§ 4989. Grantees may defend severally; jury trial.

When several grantees claim under the same grant, each may answer separately, denying the allegations in the complaint, or pleading performance of the conditions of the grant or asserting any equitable reason why the grant should not be forfeited. Issues of fact shall be tried by jury, and the jury may return a general or special verdict, except that issues raised by any equitable defense shall be determined by the presiding judge.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 147, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2068. P.L. § 2016. G.L. § 2206. P.S. § 1929. V.S. § 1574. R.L. § 1335. G.S. 44, § 9. R.S. 39, § 9. R. 1797, p. 470, § 2.

Amendments

—1971 (Adj. Sess.). Section amended generally.

§ 4990. Judgment on default; proof required.

When the grantee does not answer or appear and sufficient facts are proved on hearing, the court may adjudge the grant forfeited.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 148, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2069. P.L. § 2017. G.L. § 2207. P.S. § 1930. V.S. § 1575. R.L. § 1336. G.S. 44, § 10. R.S. 39, § 10. R. 1797, p. 470, § 2.

Amendments

—1971 (Adj. Sess.). Rephrased, added “answer or” and omitted “after service of the writ”.

§§ 4991-4994. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 4991-4994. Former §§ 4991-4994 related to forfeiture of grants.

Former § 4991 was derived from V.S. 1947, § 2070; P.L. § 2018; G.L. § 2208; P.S. § 1931; V.S. § 1576; R.L. § 1337; G.S. 44, § 11; R.S. 39, § 11; R. 1797, p. 471, § 4.

Former § 4992 was derived from V.S. 1947, § 2071; P.L. § 2019; G.L. § 2209; P.S. § 1932; V.S. § 1577; R.L. § 1338; G.S. 44, § 12; R.S. 39, § 12; R. 1797, p. 471, § 4.

Former § 4993 was derived from V.S. 1947, § 2072; P.L. § 2020; G.L. § 2210; P.S. § 1933; V.S. § 1578; R.L. § 1339; G.S. 44, § 13; R.S. 39, § 13; R. 1797, p. 471, § 4.

Former § 4994 was derived from V.S. 1947, § 2073; P.L. § 2021; G.L. § 2211; P.S. § 1934; V.S. § 1579; R.L. § 1340; G.S. 44, § 14; R.S. 39, § 14, and amended by 1959, No. 261 , § 65.

§ 4995. Copy of judgment transmitted to Secretary of State.

When final judgment has been rendered that a grant is forfeited, the clerk of the court within 30 days from the rendition thereof shall transmit to the Secretary of State a certified copy of such judgment to be recorded and kept in his or her office.

History

Source.

V.S. 1947, § 2074. 1945, No. 29 , § 19. P.L. § 2022. G.L. § 2212. P.S. § 1935. V.S. § 1580. R.L. § 1341. G.S. 44, § 15. R.S. 39, § 15. R. 1797, p. 471, § 4.

§ 4996. Writ of possession.

When judgment of forfeiture is thus rendered and transmitted, and the thing granted is capable of actual possession and occupancy, possession thereof may be obtained by the State or by a second grantee, by a writ of possession. Such writ shall be issued by the court rendering such judgment, on motion of the State’s Attorney or the second grantee, but only after reasonable notice of the motion has been given to the party in possession.

History

Source.

V.S. 1947, § 2075. P.L. § 2023. G.L. § 2213. P.S. § 1936. V.S. § 1581. R.L. § 1342. G.S. 44, §§ 16, 17. R.S. 39, §§ 16, 17. R. 1797, p. 472, § 6.

Chapter 175. Joint Contracts

§ 5051. Action against resident joint contractor.

When a bond, recognizance, bill, note, or other contract has been executed by two or more persons jointly and one or more of them reside out of the State, an action may be sustained thereon against the party residing in the State.

History

Source.

V.S. 1947, § 1663. P.L. § 1623. G.L. § 1824. P.S. § 1525. V.S. § 1174. R.L. § 933. G.S. 30, § 74. R.S. 25, § 52. R. 1797, p. 119, § 91.

ANNOTATIONS

Joint note.

When action is assumpsit on a note signed by both defendants, the writ will not abate, but the suit will be sustained against the resident defendant, under this section. People's Nat'l Bank v. Hall & Buell, 76 Vt. 280, 56 A. 1012, 1904 Vt. LEXIS 134 (1904).

Judgments.

Separate and distinct judgment cannot be rendered in joint action. F.S. Fuller & Co. v. Morrison, 106 Vt. 22, 169 A. 9, 1933 Vt. LEXIS 171 (1933).

§ 5052. On joint and several contracts.

An action may be sustained against one or more persons on joint and several contracts executed by three or more of them. If any of them reside out of the State, the writ shall designate such nonresidents.

History

Source.

V.S. 1947, § 1664. P.L. § 1624. G.L. § 1825. P.S. § 1526. V.S. § 1175. R.L. § 934. G.S. 30, § 75. R.S. 25, § 53. R. 1797, p. 119, § 91.

§ 5053. Representative of deceased joint contractor.

When one of the several obligors or promisors jointly holden by a contract in writing dies, the representatives of such deceased person and the surviving obligors or promisors may be charged by virtue of such contract in the same manner as if it had been joint and several.

History

Source.

V.S. 1947, § 1665. P.L. § 1625. G.L. § 1826. P.S. § 1527. V.S. § 1176. R.L. § 935. G.S. 30, § 77. R.S. 25, § 55. R. 1797, p. 119, § 91.

§ 5054. Discharge of a joint contractor.

A creditor having a debt or demand against a partnership or several joint obligors or promisors may discharge one or more of such partners, obligors, or promisors without impairing his or her right against the others as to the residue of his or her debt or demand.

History

Source.

V.S. 1947, § 1666. P.L. § 1626. G.L. § 1827. P.S. § 1528. V.S. § 1177. R.L. § 936. G.S. 30, § 80. 1855, No. 13 , § 1.

ANNOTATIONS

Construction.

Section construed to apply to joint sureties as among themselves, as well as to principals. Alford v. Baxter, 36 Vt. 158, 1863 Vt. LEXIS 54 (1863).

—Generally.

Discharge of one cosurety through judicial proceedings and judgment of court of competent jurisdiction, or by operation of law, is, under this section, not a discharge by act of the creditor reducing the liabilities of the cosureties pro tanto. Wetmore & Morse Granite Co. v. Ryle, 93 Vt. 245, 107 A. 109, 1919 Vt. LEXIS 157 (1919).

Liability for different amounts.

Where defendants are all liable, but for different amounts, plaintiff must elect or court order which of them shall be discharged. F.S. Fuller & Co. v. Morrison, 106 Vt. 22, 169 A. 9, 1933 Vt. LEXIS 171 (1933).

§ 5055. Action against joint contractor not discharged.

In such cases an action may be maintained against those not discharged, setting forth in the complaint that the contract was made with the defendants and the party discharged, and that such party has been discharged. Such discharge shall have the same effect as a payment by the party discharged, of his or her equal part of the debt, according to the number of debtors aside from sureties.

History

Source.

V.S. 1947, § 1667. P.L. § 1627. G.L. § 1828. P.S. § 1529. V.S. § 1178. R.L. § 937. G.S. 30, §§ 81, 82. 1855, No. 13 , §§ 2, 3.

§ 5056. Judgment against defendants found liable.

In an action founded on contract, express or implied, or under chapter 161 of this title, in which more persons than one are defendants, the plaintiff may have judgment against such defendants as are defaulted and against those who upon trial are found liable, notwithstanding it is found that all the defendants are not jointly liable.

History

Source.

V.S. 1947, § 1668. P.L. § 1628. G.L. § 1829. P.S. § 1530. V.S. § 1179. R.L. § 938. G.S. 30, § 78. 1852, No. 15 . 1851, No. 7 , § 1. R.S. 111, § 12. 1835, No. 7 , § 1.

ANNOTATIONS

Application.

Section applies only where case is tried on merits, and has no application in determining sufficiency of declaration on demurrer for misjoinder. McKillop v. Burton's Adm'r, 82 Vt. 403, 74 A. 78, 1909 Vt. LEXIS 305 (1909).

Section covers all cases of defendants in actions to which it applies, whether defendants are described and declared against as partners, or otherwise. Reynolds v. Field, 41 Vt. 225, 1868 Vt. LEXIS 104 (1868).

Section extends only to cases where no liability whatever exists on the part of one or more of the defendants. Green v. Chapman, 27 Vt. 236, 1855 Vt. LEXIS 15 (1855).

Common law.

At common law, if too many are made defendants in an action ex contractu and the objection appears on the face of the declaration, any of the defendants may demur. Cunningham v. Orange, 74 Vt. 115, 52 A. 269, 1902 Vt. LEXIS 111 (1902).

Evidence.

There is no variance if proof does not show that all defendants were parties to contract. Nash v. Skinner, 12 Vt. 219, 1840 Vt. LEXIS 36 (1840).

Joint liability.

If a trespass is committed by one defendant while conducting a business operation as a joint enterprise with another defendant by which both participate in the profits, both defendants are liable. Munson v. Goodro, 124 Vt. 282, 204 A.2d 126, 1964 Vt. LEXIS 100 (1964).

Section does not authorize judgment against one defendant upon joint liability. Armour & Co. v. J.J. Ward & Co., 78 Vt. 60, 61 A. 765, 1905 Vt. LEXIS 82 (1905).

Jurisdiction.

In action against codefendants, where one of them admitted liability on certain items of specification and judgment was rendered against him alone for amount thus represented, jurisdiction of court over action was exhausted and it had no authority to proceed with trial and render judgment against other defendant for remaining items. F.S. Fuller & Co. v. Morrison, 106 Vt. 22, 169 A. 9, 1933 Vt. LEXIS 171 (1933).

Parties.

Where plaintiff has claim against all defendants, he cannot, under this section, have judgment against one defendant alone, for a claim against him and another not a party; and if he takes judgment on his claim against all defendants, so long as that judgment stands, he cannot bring upon the record the party jointly liable with only one of the defendants. Smith v. Kellogg, 46 Vt. 560, 1874 Vt. LEXIS 35 (1874).

An action at law, where same person is one of the plaintiffs and also one of the defendants, cannot be sustained, either upon common law principles, or by the provisions of this section. Green v. Chapman, 27 Vt. 236, 1855 Vt. LEXIS 15 (1855).

Purpose.

Where action of contract is brought against more than one defendant, plaintiff may have judgment against such defendants as are found liable, notwithstanding that all defendants are not jointly liable. F.S. Fuller & Co. v. Morrison, 106 Vt. 22, 169 A. 9, 1933 Vt. LEXIS 171 (1933); Hurlburt v. Hendy, 27 Vt. 245, 1855 Vt. LEXIS 18 (1855).

Separate judgments.

Section does not authorize separate judgments, differing in amount, against each of several defendants, in actions of assumpsit. Metropolitan Washing Mach. Co. v. Morris, 39 Vt. 393, 1867 Vt. LEXIS 24 (1867).

Several liability.

Where plaintiff sued two attorneys jointly in assumpsit for money received, and established only several liability, he was entitled to judgment against one defendant, and he might elect which. McKane v. Gordon & Hoar, 85 Vt. 253, 81 A. 637, 1911 Vt. LEXIS 234 (1911).

Where surety brought joint action of assumpsit for money paid both against his principal and his cosurety, he could permit either of defendants to be discharged by court, and could take judgment against the other. Powers v. Thayer, 30 Vt. 361, 1858 Vt. LEXIS 44 (1858).

§§ 5057, 5058. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 5057, 5058. Former §§ 5057, 5058 related to additional parties on joint contracts.

Such sections are now covered by V.R.C.P. 19.

Former § 5057 was derived from V.S. 1947, § 1669; 1945, No. 29 , § 8; P.L. § 1629; G.L. § 1830; P.S. § 1531; V.S. § 1180; 1888, No. 47 , § 1; R.L. § 939; G.S. 30, § 79; 1851, No. 7 , § 2.

Former § 5058 was derived from V.S. 1947, § 1670; P.L. § 1630; G.L. § 1831; P.S. § 1532; V.S. § 1181; 1888, No. 47 , § 1; R.L. § 940; G.S. 30, § 79; 1851, No. 7 , § 2.

§ 5059. Unsatisfied judgment not bar to further action.

The recovery of judgment against one or more of several obligors or promisors on a joint or joint and several contract, without satisfaction, shall not discharge the other obligors or promisors from their liability on such contract.

History

Source.

V.S. 1947, § 1671. P.L. § 1631. G.L. § 1832. P.S. § 1533. V.S. § 1182. R.L. § 941. G.S. 30, § 76. R.S. 25, § 54.

ANNOTATIONS

Remaining partners.

Although action may have been brought and judgment obtained against one partner by this section, liability of the one partner is not so merged in judgment obtained against him that other partners may not be sued on account of their liability under contract. Jaquith v. Smith, 112 Vt. 353, 24 A.2d 341, 1942 Vt. LEXIS 126 (1942).

§ 5060. Action for unpaid balance.

When execution on a judgment obtained against a partnership, association, or company in its firm, associate, or company name is returned unsatisfied in whole or in part, an action of contract for the amount unpaid may be brought against any or all of the partners, associates, or shareholders upon their original liability, provided that only one such action shall be brought and maintained at the same time. If the execution issued in the last named action is returned unsatisfied in whole or in part, subsequent actions may in like manner be maintained for the amount unpaid.

History

Source.

V.S. 1947, § 1672. P.L. § 1632. G.L. § 1833. P.S. § 1534. V.S. § 1183. 1882, No. 71 , § 3.

References in text.

The reference to “an action of contract” is obsolete. See V.R.C.P. 2, 81(c), and 1971, No 185 (Adj. Sess.), § 236.

ANNOTATIONS

Construction with other laws.

This section and § 814 of this title were parts of same act, No. 71, laws of 1882, and must be construed together. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Evidence.

In action under this section, evidence that a paper, purporting to be the constitution of the society, was found and kept in its archives and acted under as a constitution, was sufficient to make it admissible in favor of plaintiff. Tarbell & Whitham v. Gifford, 82 Vt. 222, 72 A. 921, 1909 Vt. LEXIS 274 (1909).

Individual liability.

Liability imposed by the statute regarding judgments obtained against a partnership, association or company is not liability for the original wrongdoing, but liability for the debt. The statutory scheme charges individuals who join unincorporated associations with knowledge that they are agreeing to a certain form of contractual liability for collective debts; if a member of the association was simply ignorant of this law, such ignorance is not an excuse. Daniels v. Elks Club of Hartford, 2012 VT 55, 192 Vt. 114, 58 A.3d 925, 2012 Vt. LEXIS 58 (2012).

Absent the corporate shield on liability, the statute regarding judgments obtained against a partnership, association or company permitted the creditors of a club which had operated as a voluntary association following involuntary dissolution to collect from individuals who were members when the various aspects of the judgment against the club arose if collection from the club itself was not possible. Daniels v. Elks Club of Hartford, 2012 VT 55, 192 Vt. 114, 58 A.3d 925, 2012 Vt. LEXIS 58 (2012).

Judgments.

Judgment obtained against unincorporated association under § 814 of this title was conclusive against all persons who were members thereof when the liability merged in the judgment was created; but persons whose membership had then ceased, or did not begin till subsequent thereto, are not liable in supplemental proceedings under this section. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Original liability.

Action under this section is statutory and not based upon same cause of action as that upon which judgment was obtained; and the words “original liability,” as used in section, have reference to liability consequent on membership in association at time of creation of the liability upon which judgment was recovered. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Parties.

The phrase “any or all” means “some,” however few or many; therefore, such supplemental suit may be brought against one, or more, or all of the partners or associates who were such when the liability merged in the judgment was created. Tarbell & Whitman v. Gifford, 79 Vt. 369, 65 A. 80, 1906 Vt. LEXIS 139 (1906).

Pleadings.

Action under this section against members of unincorporated association, being founded on implied contract, is properly brought by trustee process. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Review.

Where charter was not before court but was made part of trial court’s finding of parts which quoted only the provisions relating to membership, it was assumed, on review, that exceptant was satisfied with trial court’s statement and construction of other provisions. Johnson v. Paine, 84 Vt. 84, 78 A. 732, 1911 Vt. LEXIS 246 (1911).

A judgment obtained against an unincorporated association is conclusive, as to all matters involved in the suit, upon all persons who were members of the association when the liability merged in the judgment was created. Johnson v. Paine, 84 Vt. 84, 78 A. 732, 1911 Vt. LEXIS 246 (1911).

Chapter 177. Naturalization

§ 5111. Jurisdiction.

The courts of this State shall have such jurisdiction to naturalize aliens as is or may hereafter be conferred by acts of Congress.

History

Source.

V.S. 1947, § 1272. P.L. § 1240. G.L. § 1484. 1917, No. 154 , § 1446. P.S. §§ 1226-1228. V.S. §§ 903-905. 1882, No. 111 , § 1. R.L. §§ 693, 694. 1867, No. 25 , §§ 1, 2.

ANNOTATIONS

Evidence.

Parol evidence is not admissible to prove that a foreigner has been naturalized, the question being whether he was a voter; a certified copy of the record is required. State v. O'Hearn, 58 Vt. 718, 6 A. 606, 1886 Vt. LEXIS 134 (1886).

Chapter 178. Orders Against Stalking or Sexual Assault

History

Legislative findings. 2015, No. 162 (Adj. Sess.), § 1 provides: “The General Assembly finds the following:

“(1) Stalking is a serious problem in Vermont and nationwide.

“(2) Stalking involves severe intrusions on the victim’s personal privacy and autonomy.

“(3) Stalking causes a long-lasting impact on the victim’s quality of life and creates risks to the security and safety of the victim and others even in the absence of express threats of physical harm.

“(4) Stalking conduct often becomes increasingly violent over time.

“(5) There is a strong connection between stalking and domestic violence and sexual assault.”

§ 5131. Definitions.

As used in this chapter:

    1. “Course of conduct” means two or more acts over a period of time, however short, in which a person follows, monitors, surveils, threatens, or makes threats about another person, or interferes with another person’s property. This definition shall apply to acts conducted by the person directly or indirectly, and by any action, method, device, or means. Constitutionally protected activity is not included within the meaning of “course of conduct.” (1) (A) “Course of conduct” means two or more acts over a period of time, however short, in which a person follows, monitors, surveils, threatens, or makes threats about another person, or interferes with another person’s property. This definition shall apply to acts conducted by the person directly or indirectly, and by any action, method, device, or means. Constitutionally protected activity is not included within the meaning of “course of conduct.”
    2. As used in subdivision (A) of this subdivision (1), threaten shall not be construed to require an express or overt threat.
  1. [Repealed.]
  2. “Nonphysical contact” includes telephone calls, mail, e-mail, social media commentary or comment, or other electronic communication, fax, and written notes.
  3. “Reasonable person” means a reasonable person in the victim’s circumstances.
  4. “Sexually assaulted the plaintiff” means that the defendant engaged in conduct that meets elements of lewd and lascivious conduct as defined in 13 V.S.A. § 2601 , lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602 , sexual assault as defined in 13 V.S.A. § 3252 , aggravated sexual assault as defined in 13 V.S.A. § 3253 , use of a child in a sexual performance as defined in 13 V.S.A. § 2822 , or consenting to a sexual performance as defined in 13 V.S.A. § 2823 , and that the plaintiff was the victim of the offense.
  5. “Stalk” means to engage purposefully in a course of conduct directed at a specific person that the person engaging in the conduct knows or should know would cause a reasonable person to:
    1. fear for his or her safety or the safety of a family member; or
    2. suffer substantial emotional distress as evidenced by:
      1. a fear of unlawful sexual conduct, unlawful restraint, bodily injury, or death; or
      2. significant modifications in the person’s actions or routines, including moving from an established residence, changes to established daily routes to and from work that cause a serious disruption in the person’s life, changes to the person’s employment or work schedule, or the loss of a job or time from work.
  6. “Stay away” means to refrain from knowingly:
    1. initiating or maintaining a physical presence near the plaintiff;
    2. engaging in nonphysical contact with the plaintiff directly or indirectly; or
    3. engaging in nonphysical contact with the plaintiff through third parties who may or may not know of the order.
  7. [Repealed.]

HISTORY: Added 2005, No. 193 (Adj. Sess.), § 1, eff. Oct. 1, 2006; amended 2007, No. 174 (Adj. Sess.), § 2; 2015, No. 162 (Adj. Sess.), § 2.

History

Revision note

—2006. Substituted “chapter” for “subchapter” in the introductory paragraph to conform to V.S.A. style.

Amendments

—2015 (Adj. Sess.). Rewrote the section.

—2007 (Adj. Sess.). Subdiv. (5): Deleted “or” following “ 13 V.S.A. § 3252 ” and inserted “use of a child in a sexual performance as defined in 13 V.S.A. § 2822 , or consenting to a sexual performance as defined in 13 V.S.A. § 2823 ”.

ANNOTATIONS

Construction.

Court interprets the word “threaten” in the civil stalking statute to refer to threats of physical harm. The court reaches this conclusion for three reasons; first, by specifically excluding constitutional activity from the prohibited conduct, the statute is implicitly limited to “true threats”; second, this interpretation is consistent with the court’s previous case law relating to threats; and third, to the extent that the definition of “threat” is ambiguous, the rule of lenity requires the court to resolve the ambiguity in favor of the defendant. Hinkson v. Stevens, 2020 VT 69, 213 Vt. 32, 239 A.3d 212, 2020 Vt. LEXIS 81 (2020).

To the extent the same definitions apply in both civil and criminal contexts, the Court interprets the civil stalking statute in accordance with the rule of lenity normally applied to criminal statutes. Hinkson v. Stevens, 2020 VT 69, 213 Vt. 32, 239 A.3d 212, 2020 Vt. LEXIS 81 (2020).

Stalking Not Found.

Defendant’s conduct, which stemmed from a sexual encounter plaintiff’s husband had with defendant’s romantic partner, did not constitute stalking under the civil stalking statute in that defendant’s emails, shipments of books concerning rape, and phone calls were not part of a course of conduct, as defendant’s repeated masked calls to plaintiff’s cell phone did not constitute monitoring or threats, and his shipments of books and emails, while they could reasonably be construed as threatening social retribution against plaintiff and her husband based on the husband’s alleged sexual misconduct, were not threats of physical harm. Hinkson v. Stevens, 2020 VT 69, 213 Vt. 32, 239 A.3d 212, 2020 Vt. LEXIS 81 (2020).

§ 5132. Jurisdiction and venue.

  1. The Superior Court shall have jurisdiction over proceedings under this chapter.
  2. Proceedings under this chapter may be commenced in the county in which the plaintiff resides. If the plaintiff has left his or her residence to avoid being stalked or sexually assaulted, the plaintiff shall have the option to bring an action in the county of the previous residence or the county of the new residence.

HISTORY: Added 2005, No. 193 (Adj. Sess.), § 1, eff. Oct. 1, 2006.

§ 5133. Requests for an order against stalking or sexual assault.

  1. A person, other than a family or household member as defined in 15 V.S.A. § 1101(2) , may seek an order against stalking or sexual assault on behalf of himself or herself or his or her children by filing a complaint under this chapter. A minor 16 years of age or older may file a complaint under this chapter seeking relief on his or her own behalf. The plaintiff shall submit an affidavit in support of the order.
  2. Except as provided in section 5134 of this title, the court shall grant the order only after notice to the defendant and a hearing. The plaintiff shall have the burden of proving by a preponderance of the evidence that the defendant stalked or sexually assaulted the plaintiff.
  3. In a hearing under this chapter, neither opinion evidence of nor evidence of the reputation of the plaintiff’s sexual conduct shall be admitted. Evidence of prior sexual conduct of the plaintiff shall not be admitted; provided, however, where it bears on the credibility of the plaintiff or it is material to a fact at issue and its probative value outweighs its private character, the court may admit any of the following:
    1. evidence of the plaintiff’s past sexual conduct with the defendant;
    2. evidence of specific instances of the plaintiff’s sexual conduct showing the source of origin of semen, pregnancy, or disease; or
    3. evidence of specific instances of the plaintiff’s past false allegations of violations of 13 V.S.A. chapter 59 or 72.
  4. If the court finds by a preponderance of evidence that the defendant has stalked or sexually assaulted the plaintiff, or has been convicted of stalking or sexually assaulting the plaintiff, the court shall order the defendant to stay away from the plaintiff or the plaintiff’s children, or both, and may make any other order it deems necessary to protect the plaintiff or the plaintiff’s children, or both.
  5. Relief shall be granted for a fixed period, at the expiration of which time the court may extend any order, upon motion of the plaintiff, for such additional time as it deems necessary to protect the plaintiff or the plaintiff’s children, or both. It is not necessary for the court to find that the defendant stalked or sexually assaulted the plaintiff during the pendency of the order to extend the terms of the order. The court may modify its order at any subsequent time upon motion by either party and a showing of a substantial change in circumstance.
  6. No filing fee shall be required.
  7. Every order under this chapter shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge.
  8. Form complaints and form orders for an “Order Against Stalking or Sexual Assault” shall be provided by the Court Administrator and shall be maintained by the clerks of the courts.
  9. When findings are required under this section, the court shall make either written findings of fact or oral findings of fact on the record.
  10. Every final order issued under this section shall bear the following language: “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”
  11. Affidavit forms required pursuant to this section shall bear the following language: “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904 .”
  12. A finding by the court pursuant to this chapter that the defendant stalked or sexually assaulted the plaintiff shall not be admissible in any subsequent civil proceedings for the purpose of establishing liability.

HISTORY: Added 2005, No. 193 (Adj. Sess.), § 1, eff. Oct. 1, 2006; amended 2015, No. 162 (Adj. Sess.), § 3.

History

Amendments

—2015 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (c): Added “any of the following” following “court may admit” in the second sentence of the introductory language.

Subsec. (d): Deleted the subdiv. (1) designation and subdiv. (2), and inserted “or sexually assaulted the plaintiff, or has” following “has stalked” and “stalking or” preceding “sexually assaulting” in that subsec.

ANNOTATIONS

Parties.

Because the statute governing requests for orders against stalking or sexual assault (SSA) does not require defendants in SSA protection-order cases to be adults, the trial court erred in reading such a limitation into the statute and thereby dismissing a complaint for an order of protection brought by a 17-year-old against a 13-year-old without reaching the merits. T.C. v. L.D., 2020 VT 19, 211 Vt. 582, 229 A.3d 77, 2020 Vt. LEXIS 18 (2020).

§ 5134. Emergency relief.

  1. In accordance with the Vermont Rules of Civil Procedure, a person other than a family or household member as defined in 15 V.S.A. § 1101(2) may file a complaint for a temporary order against stalking or sexual assault. Such complaint shall be filed during regular court hours. The plaintiff shall submit an affidavit in support of the order. The court may issue a temporary order under this chapter ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has stalked or sexually assaulted the plaintiff. The court may order the defendant to stay away from the plaintiff or the plaintiff’s children, or both, and may make any other such order it deems necessary to protect the plaintiff or the plaintiff’s children, or both.
  2. Every order issued under this section shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge. Every order issued under this section shall state upon its face a date, time, and place that the defendant may appear to petition the court for modification or discharge of the order. This opportunity to contest shall be scheduled as soon as reasonably possible, which in no event shall be more than 14 days from the date of issuance of the order. At such hearings, the plaintiff shall have the burden of proving by a preponderance of the evidence that the defendant stalked or sexually assaulted the plaintiff. If the court finds that the plaintiff has met his or her burden, it shall continue the order in effect and make such other orders as it deems necessary to protect the plaintiff or the plaintiff’s children, or both.
  3. Form complaints and form orders shall be provided by the Court Administrator and shall be maintained by the clerks of the courts.
  4. Every order issued under this chapter shall bear the following language: “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”
  5. Affidavit forms required pursuant to this section shall bear the following language: “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904 .”

HISTORY: Added 2005, No. 193 (Adj. Sess.), § 1, eff. Oct. 1, 2006; amended 2007, No. 174 (Adj. Sess.), § 3; 2017, No. 11 , § 23.

History

Amendments

—2017. Subsec. (b): Substituted “14” for “10” preceding “days” in the third sentence.

—2007 (Adj. Sess.). Subsec. (a): Rewrote the last sentence.

§ 5135. Service.

  1. A complaint or ex parte temporary order or final order issued under this chapter shall be served in accordance with the Vermont Rules of Civil Procedure and may be served by any law enforcement officer. A court that issues an order under this chapter during court hours shall promptly transmit the order electronically or by other means to a law enforcement agency for service.
  2. A defendant who attends a hearing held under section 5133 or 5134 of this title at which a temporary or final order under this chapter is issued and who receives notice from the court on the record that the order has been issued shall be deemed to have been served. A defendant notified by the court on the record shall be required to adhere immediately to the provisions of the order. However, even when the court has previously notified the defendant of the order, the court shall transmit the order for additional service by a law enforcement agency.
  3. Orders against stalking or sexual assault shall be served by the law enforcement agency at the earliest possible time and shall take precedence over other summonses and orders, with the exception of abuse prevention orders issued pursuant to 15 V.S.A. chapter 21. Orders shall be served in a manner calculated to ensure the safety of the plaintiff. Methods of service which include advance notification to the defendant shall not be used. The person making service shall file a return of service with the court stating the date, time, and place that the order was delivered personally to the defendant.
  4. If service of a notice of hearing issued under section 5133 or 5134 of this title cannot be made before the scheduled hearing, the court shall continue the hearing and extend the terms of the order upon request of the plaintiff for such additional time as it deems necessary to achieve service on the defendant.

HISTORY: Added 2005, No. 193 (Adj. Sess.), § 1, eff. Oct. 1, 2006; amended 2013, No. 17 , § 3; 2013, No. 17 , § 4, eff. Nov. 1, 2013.

History

Amendments

—2013. Amended generally by No. 17, § 3.

Subsec. (a): Act No. 17, § 4 added the second sentence.

Subsec. (b): Added the third sentence.

§ 5136. Procedure.

  1. Except as otherwise specified in this chapter, proceedings commenced under this chapter shall be in accordance with the Vermont Rules of Civil Procedure and shall be in addition to any other available civil or criminal remedies.
  2. The Court Administrator is authorized to contract with public or private agencies to assist plaintiffs to seek relief and to gain access to Superior Court. Law enforcement agencies shall assist in carrying out the intent of this section.
  3. The Office of the Court Administrator shall ensure that the Superior Court has procedures in place so that the contents of orders and pendency of other proceedings can be known to all courts for cases in which an order against stalking or sexual assault proceeding is related to a criminal proceeding.
  4. Unless otherwise ordered by the court, an order issued pursuant to sections 5133 and 5134 of this title shall not be stayed pending an appeal.

HISTORY: Added 2005, No. 193 (Adj. Sess.), § 1, eff. Oct. 1, 2006; amended 2009, No. 154 (Adj. Sess.), § 82; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2013, No. 17 , § 7.

History

Amendments

—2013. Subsec. (d): Added.

—2009 (Adj. Sess.) Subsec. (c): Substituted “has” for “and the district court have” preceding “procedures” and “all” for “both” preceding “courts for cases”.

§ 5137. Filing orders with law enforcement personnel; Department of Public Safety protection order database.

  1. Police departments, sheriff’s departments, and State Police district offices shall establish procedures for filing notice against stalking or sexual assault orders issued under this chapter and for making their personnel aware of the existence and contents of such orders.
  2. Any court in this State that issues a notice against a stalking or sexual assault order under this chapter shall transmit a copy of the order to the Department of Public Safety’s protection order database.

HISTORY: Added 2005, No. 193 (Adj. Sess.), § 1, eff. Oct. 1, 2006.

§ 5138. Enforcement.

  1. Law enforcement officers are authorized to enforce orders issued under this chapter. A foreign abuse prevention order as defined in 15 V.S.A. § 1101 shall be accorded full faith and credit throughout this State and shall be enforced as if it were an order of this State. Law enforcement officers may rely upon a copy of any order issued under this chapter or any foreign abuse prevention order. Enforcement may include making an arrest in accordance with the provisions of Rule 3 of the Vermont Rules of Criminal Procedure.
  2. In addition to the provisions of subsection (a) of this section, violation of an order issued under this chapter may be prosecuted as criminal contempt under Rule 42 of Vermont Rules of Criminal Procedure. The prosecution for criminal contempt may be initiated by the State’s Attorney in the Criminal or Civil Division of the Superior Court in the unit or county in which the violation occurred. The maximum penalty which may be imposed under this subsection shall be a fine of $1,000.00 or imprisonment for six months, or both. A sentence of imprisonment upon conviction for criminal contempt may be stayed in the discretion of the court, pending the expiration of the time allowed for filing notice of appeal or pending appeal if any appeal is taken. After two years have passed from conviction under this subsection, the court may on motion of the defendant expunge the record of the criminal proceeding and conviction unless the defendant has been convicted of a felony or misdemeanor involving moral turpitude or a violation of a protection order after such initial adjudication.

HISTORY: Added 2005, No. 193 (Adj. Sess.), § 1, eff. Oct. 1, 2006.

History

Revision note

—2013. In subsec. (b), substituted “The Criminal or Civil Division of the” for “district or” in accordance with 2009, No. 154 (Adj. Sess.), § 236.

Chapter 179. Partition of Real Estate

§ 5161. Who may have partition.

A person having or holding real estate with others, as joint tenants, tenants in common, or coparceners, may have partition thereof.

History

Source.

V.S. 1947, § 2016. P.L. § 1964. G.L. § 2154. P.S. § 1877. V.S. § 1515. R.L. § 1275. G.S. 45, § 1. R.S. 40, § 1. R. 1797, p. 462, § 1. R. 1787, p. 102.

ANNOTATIONS

Constitutionality.

Statutory provisions relating to partition are not an unconstitutional invasion of the right to contract as the operation of the statute can be barred by agreement. Coolidge v. Coolidge, 130 Vt. 132, 287 A.2d 566, 1972 Vt. LEXIS 240 (1972).

Agreements against partition.

Partition may be barred by agreement between the parties, either express or implied, but mere contemplation against partition is not sufficient to raise such an implied agreement. Coolidge v. Coolidge, 130 Vt. 132, 287 A.2d 566, 1972 Vt. LEXIS 240 (1972).

Agreements against partition may run counter to public policy as unreasonable restraints against alienation. Coolidge v. Coolidge, 130 Vt. 132, 287 A.2d 566, 1972 Vt. LEXIS 240 (1972).

Evidence which showed only that the parties understood and accepted the characteristics of joint tenancy, including survivorship, at the time deed was passed, fell short of supporting any ancillary agreement to forego the right to partition. Coolidge v. Coolidge, 130 Vt. 132, 287 A.2d 566, 1972 Vt. LEXIS 240 (1972).

Calculations.

In a partition action, the trial court was incorrect to recognize an additional offset in plaintiff’s favor based on her income being necessary to obtain the financing to purchase the property. The fact that plaintiff applied for and was a necessary cosigner with defendant on the mortgage application for financing might support the presumption that she owned an undivided one-half interest in the property, but lent nothing to her claim for additional equitable consideration; plaintiff neither contributed more, nor had more at risk, than defendant based on the bare fact that she applied for and was obliged on the mortgage to the same degree as defendant. Whippie v. O'Connor, 2010 VT 32, 187 Vt. 523, 996 A.2d 1154, 2010 Vt. LEXIS 32 (2010).

Plaintiff’s purchases for the parties’ children and payments to general expenses were not relevant to partition, and the trial court’s consideration of those factors was error; the trial court did not find that plaintiff’s expenditures on behalf of the children and payment of other expenses were an agreed-upon substitute for paying her share of the housing costs. Crediting to plaintiff’s account for her contributions to general domestic expenses was beyond the scope of the partition statute. Whippie v. O'Connor, 2010 VT 32, 187 Vt. 523, 996 A.2d 1154, 2010 Vt. LEXIS 32 (2010).

In a partition action, plaintiff should have received no credit for the cost of telephone service or the cost of television, as those costs were not necessary to maintain the property. If lock and alarm costs were incurred in order to oust defendant, who was entitled to an undivided one-half interest in the property, they were plainly not to be credited to plaintiff. Massey v. Hrostek, 2009 VT 70, 186 Vt. 211, 980 A.2d 768, 2009 Vt. LEXIS 78 (2009).

In a partition action, there was no showing that defendant consented to the construction of hiking trails or a shooting berm. Thus, plaintiff should be credited only for the increase those improvements caused in fair market value, not for the $23,000 cost. Massey v. Hrostek, 2009 VT 70, 186 Vt. 211, 980 A.2d 768, 2009 Vt. LEXIS 78 (2009).

Plaintiff changed the locks and security codes on the parties’ property in early November 2003, and defendant had not had access to the property since that date. Thus defendant in a partition action was entitled to a setoff for one-half of the rental value of the property for the period during which she was denied access to the property. Massey v. Hrostek, 2009 VT 70, 186 Vt. 211, 980 A.2d 768, 2009 Vt. LEXIS 78 (2009).

It was undisputed in a partition action that plaintiff paid all of the necessary maintenance and repair expenses to the parties’ property, as well as certain pre-ouster improvement costs. Defendant’s interest therefore had to be reduced by an amount equal to one-half of the necessary repair and maintenance costs incurred before the ouster. Massey v. Hrostek, 2009 VT 70, 186 Vt. 211, 980 A.2d 768, 2009 Vt. LEXIS 78 (2009).

Debt.

Trial court appropriately considered the parties’ debt related to the refinancing of the home, including credit card debts paid off through additional mortgages, because debt incurred on the home, the subject of partition, was relevant to determining the equities. On the other hand, the court inappropriately considered defendant’s child-support arrears. Begin v. Benoit, 2006 VT 130, 181 Vt. 553, 915 A.2d 786, 2006 Vt. LEXIS 359 (2006) (mem.).

Evidence.

In a partition action, given that the house construction was, according to defendant’s own testifying appraiser, thirty-seven percent complete at the time of the transfer to the parties’ joint tenancy, the trial court did not abuse its discretion in considering defendant’s initial investment in the property rather than its value at the time of transfer in conducting its equitable analysis. Nystrom v. Hafford, 2012 VT 60, 192 Vt. 300, 59 A.3d 736, 2012 Vt. LEXIS 59 (2012).

In a partition action, the trial court’s findings with respect to the parties’ respective contributions were supported by sufficient evidence in the record. The parties stipulated to much of the evidence underlying plaintiff’s figures; a certain loan was not included in plaintiff’s contribution; and although siding purchased by plaintiff’s parents had not been installed at the time of suit, it was on site and ready to go on the house. Nystrom v. Hafford, 2012 VT 60, 192 Vt. 300, 59 A.3d 736, 2012 Vt. LEXIS 59 (2012).

In a partition case, any error in characterizing defendant’s occupation or receiving evidence about plaintiff’s health was harmless, as it was apparent from the trial court’s conclusions that it considered neither of these factors in balancing the equities. Whippie v. O'Connor, 2010 VT 32, 187 Vt. 523, 996 A.2d 1154, 2010 Vt. LEXIS 32 (2010).

Regardless of defendant’s disagreement with it, plaintiff’s testimony was evidence in support of the court’s findings in a partition case, and findings supported by credible evidence would not be disturbed on appeal. Whippie v. O'Connor, 2010 VT 32, 187 Vt. 523, 996 A.2d 1154, 2010 Vt. LEXIS 32 (2010).

Judgments.

Judgment of partition between joint owners of real estate does not bind mortgagee of defendant owner, such mortgagee not being a party to judgment. Sowles v. Rugg, 65 Vt. 142, 26 A. 111, 1893 Vt. LEXIS 45 (1893).

Fact that mortgagee takes possession of parcel apportioned to his mortgagor and builds a line fence between that and other parcel does not amount to acquiescence, if at the time of doing so he notifies other owner that he will not be bound by judgment. Sowles v. Rugg, 65 Vt. 142, 26 A. 111, 1893 Vt. LEXIS 45 (1893).

Leasehold interest.

All, or virtually all, decisions that have considered the question have held that partition is available for leasehold interests. Thus, plaintiff could seek partition of leasehold property under the partition statute. Wynkoop v. Stratthaus, 2016 VT 5, 201 Vt. 158, 136 A.3d 1180, 2016 Vt. LEXIS 8 (2016).

Levy of execution.

If petitioner claims title to premises described in his petition by virtue of levy of execution in his favor, it is no objection to his petition, that it bears date prior to time when his right of possession accrued, as against his judgment debtor, if that right became perfect before process was served. Hawley v. Soper, 18 Vt. 320, 1846 Vt. LEXIS 44 (1846).

Licenses.

Partition will not be made of reversionary interest in premises covered by license. Baldwin v. Aldrich, 34 Vt. 526, 1861 Vt. LEXIS 91 (1861).

Life estate reserved.

Petition for partition cannot be maintained by one whose only title is deed by which grantor, who is still living, reserves to himself use and occupation of premises during his life. Nichols v. Nichols, 28 Vt. 228, 1856 Vt. LEXIS 10 (1856).

Mortgagees.

One of several mortgagees of undivided interests in same land, who have never been in possession or foreclosed their mortgages, can sustain petition for partition against others; and mortgagor or his assignees, being in possession, have no right, as such, to oppose such partition. Munroe v. Walbridge, 2 Aik. 410 (Vt. Feb. 1, 1827).

—Generally.

In a partition action, the findings were insufficient to rebut the presumption that the joint title established plaintiff ’s intent to convey a present interest in the property to defendant. The finding that plaintiff did not intend to give defendant an outright gift of any interest in the property was contrary to the finding that he intentionally placed her name on the deed and the finding that he was cautious in titling property jointly; it was impossible to reconcile the finding that plaintiff simply assumed that defendant would sign over the property upon their estrangement with the finding that he was extremely conservative with putting names on property or with the finding that he intentionally did not put defendant’s name on any Connecticut deeds; the finding that the parties were joint owners was irreconcilable with the finding that plaintiff did not intend to give defendant an outright gift; and the finding that plaintiff had a will that named defendant as a beneficiary with respect to property other than the house, and that he canceled that will upon their breakup, could not be reconciled with the trial court’s finding that as to the house, he intended to accomplish by mere silence what he had taken pains to accomplish with full written formalities as to other property. Massey v. Hrostek, 2009 VT 70, 186 Vt. 211, 980 A.2d 768, 2009 Vt. LEXIS 78 (2009).

Severance in which plaintiff quitclaimed his interest to a trustee who reconveyed it to him, severing the joint tenancy and converting it to a tenancy in common, was not material to the court’s decision in a partition action because it did not affect the size of the parties’ respective shares in the property, and did not prevent the trial court from entertaining the partition action. Massey v. Hrostek, 2009 VT 70, 186 Vt. 211, 980 A.2d 768, 2009 Vt. LEXIS 78 (2009).

While plaintiff was entitled to partition under this section only upon acquiring her joint tenancy in the property, once she brought the partition action, the court was within its right to consider her prior financial contributions to the property in an effort to equitably divide the parties’ interests. Begin v. Benoit, 2006 VT 130, 181 Vt. 553, 915 A.2d 786, 2006 Vt. LEXIS 359 (2006) (mem.).

As the statutory provisions relating to partition undertake to deal with common ownership which involves survivorship, the existence of a joint tenancy alone will not forestall its operation. Coolidge v. Coolidge, 130 Vt. 132, 287 A.2d 566, 1972 Vt. LEXIS 240 (1972).

Partial partition.

Where party, being tenant in common in fee with others, has in addition a license exclusively to use portion of the premises for particular purpose, and so long as certain structures thereon endure, this fact furnishes no reason why partition, assignment or sale, in accordance with the statute of partition, should not be made of so much of premises as are not covered by such license. Baldwin v. Aldrich, 34 Vt. 526, 1861 Vt. LEXIS 91 (1861).

Parties.

If petition for partition be brought against several individuals as tenants in common with plaintiff in several parcels of land, and with no connection between each other in some of the parcels, such petition will, on motion of any of petitionees, be dismissed. Brownell v. Bradley, 16 Vt. 105, 1844 Vt. LEXIS 21 (1844).

Procedure.

In a partition case, while an accounting of what portion of contributions the plaintiff and the defendant each made to taxes, insurance, utilities, repairs and the like need not be precise, a ballpark estimate is insufficient; the party with the burden of proof on a particular claim of contribution or offset must bear the risk of failing to prove the necessary financial facts. Nor should the court’s evaluation of contribution claims be conflated with its consideration of offsets. Assessment of offsets cannot be evaluated by the trial court or an appellate court without knowing at least the general proportion of each party’s contribution to maintaining and preserving the property in the first place. Whippie v. O'Connor, 2010 VT 32, 187 Vt. 523, 996 A.2d 1154, 2010 Vt. LEXIS 32 (2010).

In construing statute having to do with procedure in partition of real estate, when statute is ambiguous, previous decisions of Supreme Court which have, even tacitly, approved particular method of procedure may be taken into consideration in determining matter of proper procedure. Billings v. Billings, 114 Vt. 70, 39 A.2d 748 (1944), same case 114 Vt. 512, 49 A.2d 179.

—Generally.

Partition is a right incident to common ownership which a co-owner may demand absolutely. Coolidge v. Coolidge, 130 Vt. 132, 287 A.2d 566, 1972 Vt. LEXIS 240 (1972).

To sustain petition for partition, petitioner must have some greater present interest in premises than mere right of entry. Brock v. Eastman, 28 Vt. 658 (1856), same case 27 Vt. 559.

If defendant’s possession amounts to disseisin of petitioner, and premises were never held by them together, petition for partition cannot be sustained. Brock v. Eastman, 28 Vt. 658 (1856), same case 27 Vt. 559.

It is not necessary that petitioner should be in actual possession of premises at time of bringing petition, provided he has not been disseised; and for this purpose distinction is recognized between mere possession of plaintiff’s share of premises by third person, or by defendant, and legal disseisin. Hawley v. Soper, 18 Vt. 320, 1846 Vt. LEXIS 44 (1846).

Review.

Where parties stipulated to partition, one could not later, on appeal, raise claim that although statute of limitations was an affirmative defense required to be pleaded, and was not pleaded in the case, the matter was raised on argument and not objected to, thereby putting the statute in issue, for the stipulation was a clear waiver of any claim under the statute. Paul v. Prior, 137 Vt. 299, 404 A.2d 105, 1979 Vt. LEXIS 983 (1979).

A judgment to partition is final with respect to the remedy and an appeal may be properly taken with respect to the determination that partition should be carried out and with respect to the decision as to the respective interests of the parties. Coolidge v. Coolidge, 130 Vt. 132, 287 A.2d 566, 1972 Vt. LEXIS 240 (1972).

If petition for partition be dismissed in county court, and it appears on hearing in Supreme Court, in any view of the case, although upon a ground not taken in court below, that plaintiff cannot legally sustain his petition, judgment will be affirmed. Hawley v. Soper, 18 Vt. 320, 1846 Vt. LEXIS 44 (1846).

Tenants in common.

Where judgment order granting divorce awarded real estate to the parties as tenants in common subject only to husband’s right to occupy residence on the property as long as it was his principal place of dwelling, as a tenant in common, wife had a right to partition of the property, a right which was neither waived by earlier agreement nor barred by the divorce order. Shippee v. Shippee, 146 Vt. 594, 508 A.2d 701, 1986 Vt. LEXIS 332 (1986).

Claim for partition exists whenever there is a tenancy in common and is a continuing right, and statute of limitations, as to the claim, runs only against a tenant who has been excluded from possession and begins to run as of the time of exclusion. Paul v. Prior, 137 Vt. 299, 404 A.2d 105, 1979 Vt. LEXIS 983 (1979).

Where petitioner had levied upon undivided portion of defendant’s interest in piece of land, of which defendant remained in possession, denying petitioner’s right to any participation therein under his levy, defendant’s possession of premises was not such seisin of them as tenant in common with petitioner as would enable latter to sustain his petition for partition. Brock v. Eastman, 28 Vt. 658, 1856 Vt. LEXIS 95 (1856).

County court has jurisdiction of petition for partition of real estate, which descended to heirs of deceased person, among whom it never was divided, where petitioner has bought out part of said heirs and holds the estate in common with others. Collamer v. Hutchins, 27 Vt. 733, 1855 Vt. LEXIS 110 (1855).

Where husband and wife procured division of land held by them in common, judgment, ordering partition, will be treated as nullity and whole proceedings were coram non judice. Howe v. Blanden, 21 Vt. 315, 1849 Vt. LEXIS 33 (1849).

§ 5162. Partition of a spring.

There may be partition of real estate containing a spring, and of the right to use the water of such spring, in the same manner as other real estate. The commissioners shall equitably apportion the use of such water and the manner of its use.

History

Source.

V.S. 1947, § 2017. P.L. § 1965. G.L. § 2155. P.S. § 1878. V.S. § 1516. R.L. § 1276. 1870, No. 69 .

§ 5163. Complaint and summons; venue.

A person designated in section 5161 of this title may, by serving a complaint and summons on all persons interested in the estate, bring an action to partition the real estate in the Superior Court of the county where the real estate or any part thereof is situated. The complaint shall state the title by which the real estate is held, the names of the several owners, as far as known, and a particular description of the premises.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 149, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 2018. P.L. § 1966. G.L. § 2156. P.S. § 1879. V.S. § 1517. R.L. § 1277. G.S. 45, § 2. R.S. 40, § 2. R. 1797, p. 462, § 1. R. 1787, p. 107.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1971 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Commencement of actions, see V.R.C.P. 3.

General rules of pleading, claims for relief, see V.R.C.P. 8(a).

Partition of estate in probate court, see 14 V.S.A. § 1737 .

ANNOTATIONS

Equity jurisdiction.

This chapter, pursuant to which a county court may order partition by sale in a proper case, does not preclude court of equity from exercising its inherent jurisdiction in partition proceedings. Geis v. Vallazza, 124 Vt. 457, 207 A.2d 248, 1965 Vt. LEXIS 270 (1965).

Statutory remedy of partition by courts of law is cumulative and concurrent to original jurisdiction of courts of equity in such causes. Fiske v. Probst, 121 Vt. 93, 147 A.2d 680, 1959 Vt. LEXIS 93 (1959).

Pleadings.

If petition for partition of real estate prays not only for partition, but also, in case premises are found not divisible, for assignment or sale thereof, plea that premises are not partitionable is not sufficient. Baldwin v. Aldrich, 34 Vt. 526, 1861 Vt. LEXIS 91 (1861).

§§ 5164-5168. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 5164-5168. Former §§ 5164-5168 related to partition, notice, guardian, agent and pleadings.

Such sections are now covered by V.R.C.P. 4(e)-(g), 7(a), 8(b)-(d), 12, 17(b).

Former § 5164 was derived from V.S. 1947, § 2019; P.L. § 1967; G.L. § 2157; P.S. § 1880; V.S. § 1518; R.L. § 1278; G.S. 45, § 3; R.S. 40, § 3; R. 1797, p. 464, § 3; R. 1787, p. 107.

Former § 5165 was derived from V.S. 1947, § 2020; 1945, No. 29 , § 17; P.L. § 1968; G.L. § 2158; 1917, No. 254 , § 2121; P.S. § 1881; V.S. § 1519; R.L. § 1279; G.S. 45, § 4; R.S. 40, § 4; R. 1797, p. 464, § 3; R. 1787, p. 109.

Former § 5166 was derived from V.S. 1947, § 2021; P.L. § 1969; G.L. § 2159; P.S. § 1882; V.S. § 1520; R.L. § 1280; G.S. 45, § 11; R.S. 40, § 11; R. 1797, p. 464, § 4; R. 1787, p. 109.

Former § 5167 was derived from V.S. 1947, § 2022; P.L. § 1970; G.L. § 2160; P.S. § 1883; V.S. § 1521; R.L. § 1281; G.S. 45, § 12; R.S. 40, § 12; R. 1797, p. 464, § 4.

Former § 5168 was derived from V.S. 1947, § 2023; P.L. § 1971; G.L. § 2161; P.S. § 1884; V.S. § 1522; R.L. § 1282; G.S. 45, § 5; R.S. 40, § 5; R. 1797, p. 463, § 2.

§ 5169. Judgment for plaintiff; commissioners; waiver.

  1. When the issue is determined in favor of the plaintiff, or if the person interested defaults, the court shall render judgment that partition be made and appoint three disinterested residents of the county as commissioners. The commissioners shall make partition of the estate and set off each share of the several persons interested, according to their respective titles, and shall award to the plaintiff reasonable costs against the adverse party.
  2. Notwithstanding subsection (a) of this section, the parties may, with the approval of the court, waive the use of commissioners and have all matters decided by the court at a bench trial.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 150, eff. March 29, 1972; 2019, No. 40 , § 2.

History

Source.

V.S. 1947, § 2024. P.L. § 1972. G.L. § 2162. P.S. § 1885. V.S. § 1523. R.L. § 1283. G.S. 45, § 6. R.S. 40, § 6. R. 1797, p. 463, § 2. R. 1787, p. 107.

Amendments

—2019. Added “waiver” in the section heading, added the (a) designation, and added subsec. (b).

—1971 (Adj. Sess.). Rephrased, substituted “plaintiff” for “petitioner” and “defaults” for “after notice, does not appear”.

ANNOTATIONS

Costs.

Where pleadings raised no issue respecting interest of respective parties in premises, but did raise issue concerning disposition of such interests, court did not err in awarding petitioners their reasonable costs, since petitioners were obliged to accede to wish of petitionee who desired to retain her interest or proceed as they did. Watkins v. Merrihew, 102 Vt. 190, 147 A. 345, 1929 Vt. LEXIS 167 (1929).

Costs in partition cases can only be allowed in county court; and if no order is made in that court as to costs, none will be in Supreme Court. Houghton v. Sowles, 57 Vt. 635, 1885 Vt. LEXIS 110 (1885).

Procedure.

Where commissioners in a partition proceeding did not follow directions of the trial court not to engage in ex parte contacts without stipulation of the parties and to give notice and an opportunity to be present for the taking of any evidence, and to hold a meeting with all parties present, but, rather than taking evidence, undertook their own independent investigation of the facts and failed to create and submit a record of their investigation, the court erred in its conclusion that it was plaintiff’s burden to demonstrate, via examination of the commissioners themselves, that the findings were clearly erroneous and, given the complete lack of a record, the court should have conducted a de novo hearing. Lindquist v. Adams, 174 Vt. 179, 811 A.2d 173, 2002 Vt. LEXIS 226 (2002).

Cited.

Cited in Albanese v. Condit, 141 Vt. 651, 450 A.2d 1141, 1982 Vt. LEXIS 568 (1982).

§ 5170. When defendant prevails in whole or in part.

When, on trial, it is determined that the plaintiff has no right or share in the estate claimed, or that he or she holds a smaller share than alleged in his or her complaint, the adverse party shall recover against him or her reasonable costs. If the plaintiff holds a smaller share than claimed in his or her complaint, the judgment shall be that partition of the estate be made according to the title of the respective owners.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 151, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2025. P.L. § 1973. G.L. § 2163. P.S. § 1886. V.S. § 1524. R.L. § 1284. G.S. 45, § 7. R.S. 40, § 7. R. 1797, p. 463, § 2.

Amendments

—1971 (Adj. Sess.). Rephrased, substituted “plaintiff” for “petitioner”, “complaint” for “petition” and “smaller” for “less”.

ANNOTATIONS

Costs.

There was no basis to award defendant costs in a partition action. The trial court’s finding that the parties originally acquired the property as equals was consistent with the presumption, not rebutted, that tenants in common had equal title in the commonly owned property; that plaintiff might realize less than the full value of her undivided one-half interest resulted from equitable adjustments by the trial court pursuant to the partition action after title was acquired. Whippie v. O'Connor, 2010 VT 32, 187 Vt. 523, 996 A.2d 1154, 2010 Vt. LEXIS 32 (2010).

Costs in partition cases can only be allowed in county court; and if no order is made in that court as to costs, none will be in Supreme Court; thus, motion in Supreme Court to have cause heard at former term brought forward and costs allowed was dismissed. Houghton v. Sowles, 57 Vt. 635, 1885 Vt. LEXIS 110 (1885).

Partial partition.

If on trial of petition for partition it appears that parties are tenants in common of only part of premises described in petition, court will proceed to make partition, assignment or sale, as case may require of that part. Baldwin v. Aldrich, 34 Vt. 526, 1861 Vt. LEXIS 91 (1861).

§ 5171. Notice by commissioners; oath; partition.

The commissioners shall give notice to each party interested or to his or her agent or attorney of the time when they will make such partition. Such commissioners shall be sworn and shall make partition of the estate by dividing and setting out to each owner his or her share thereof by metes and bounds.

History

Source.

V.S. 1947, § 2026. P.L. § 1974. G.L. § 2164. P.S. § 1887. V.S. § 1525. R.L. § 1285. G.S. 45, §§ 8, 13. R.S. 40, §§ 8, 13. R. 1797, p. 462, § 1. R. 1797, p. 464, § 4. R. 1787, p. 107.

ANNOTATIONS

Determining interests of parties.

Commissioners appointed to make partition of land are not empowered to determine any question of right, title, or interest as between parties among whom they are to make proposed partition; that is to be done in county court, preliminary to judgment for partition. Gourley v. Woodbury, 43 Vt. 89, 1870 Vt. LEXIS 54 (1870).

§ 5172. Report; judgment.

Having made partition, the commissioners shall make return to the court of their doings, with a description of each portion of the estate set off, and a certificate of their having been sworn. Unless cause is shown, such report shall be accepted by the court and judgment rendered thereon.

History

Source.

V.S. 1947, § 2027. P.L. § 1975. G.L. § 2165. P.S. § 1888. V.S. § 1526. R.L. § 1286. G.S. 45, §§ 8, 9. R.S. 40, §§ 8, 9. R. 1797, p. 462, § 1. R. 1787, p. 108.

ANNOTATIONS

Where partition inconvenient.

If commissioners find that property cannot be divided without great inconvenience, they should ascertain and report to court whether one of owners is willing to take assignments of interest of other owner or owners, and sum or sums that are equitable compensation for assignment, as well as times and manner of payment; unless cause to contrary is shown, report is to be accepted by court and judgment rendered for assignment to party indicated therein; commissioners then proceed with actual assignment. Billings v. Billings, 114 Vt. 70, 39 A.2d 748 (1944), same case 114 Vt. 512, 49 A.2d 179, 169 A.L.R. 864.

—Generally.

The return of commissioners, appointed to make partition of real estate, must set forth lands which they divide, and specifically what they set to each party. Harrington v. Barton, 11 Vt. 31, 1839 Vt. LEXIS 4 (1839).

§ 5173. Recording of report and judgment; effect.

A certified copy of the report of the commissioners, with the judgment of the court accepting the same thereon, shall be recorded in the office where by law a deed of such estate is required to be recorded, and, when so recorded, shall give such owner his or her share of the estate so set off in severalty.

History

Source.

V.S. 1947, § 2028. P.L. § 1976. G.L. § 2166. P.S. § 1889. V.S. § 1527. R.L. § 1287. G.S. 45, § 10. R.S. 40, § 10. R. 1797, p. 462, § 1. R. 1787, p. 108.

§ 5174. Assignment or sale of estate—assignment to party.

When it appears that the real estate, or a portion thereof, cannot be divided without great inconvenience to the parties interested, the court may order it assigned to one of the parties, provided he or she pays to the other party such sum of money, at such times and in such manner as the commissioners judge equitable.

History

Source.

V.S. 1947, § 2029. P.L. § 1977. G.L. § 2167. P.S. § 1890. V.S. § 1528. R.L. § 1288. G.S. 45, § 14. R.S. 40, § 14. R. 1797, p. 465, § 5.

ANNOTATIONS

Assignment to party.

In a partition action, the trial court properly assigned the property to plaintiff. It reasonably considered her greater contribution to financing, organizing, and facilitating the construction process, as well as her family’s quite substantial contributions of labor and money; furthermore, as she had been pre-approved for a loan, the trial court did not err in finding that she had a likely superior capacity to finance a prompt payment for defendant’s interest, while absorbing responsibility for the debt to her parents. Nystrom v. Hafford, 2012 VT 60, 192 Vt. 300, 59 A.3d 736, 2012 Vt. LEXIS 59 (2012).

Vermont statutory scheme allows for assignment even when more than one co-tenant is willing to accept it, and gives the trial court discretion over whether to order an assignment and the choice of assignee. Wilk v. Wilk, 173 Vt. 343, 795 A.2d 1191, 2002 Vt. LEXIS 13 (2002).

In partition action involving a one-acre parcel on which plaintiff operated a paving business out of the buildings thereon, and defendant — plaintiff’s brother — operated a junk yard on an adjoining parcel of land, where both parties acquired a one-eighth interest in the property by inheritance, and plaintiff subsequently purchased the interests of other siblings, the trial court did not abuse its discretion in ordering defendant to assign his interest to plaintiff where it found that: plaintiff was conducting an active, viable business; he had expended considerable sums to construct an office for his business; he had maintained the property in a reasonable and neat manner, while defendant’s use of his own adjoining property, as well as the property at issue was in violation of local zoning regulations; and that the potential loss of use of a driveway across the property would not prejudice defendant because his adjoining parcel had substantial road frontage from which the property could be accessed. Wilk v. Wilk, 173 Vt. 343, 795 A.2d 1191, 2002 Vt. LEXIS 13 (2002).

In partition proceeding in which plaintiffs and defendant each owned a half interest in the property and wanted to purchase it, trial court correctly ruled that statutory public sale, with appropriate division of the net proceeds, be held, and that each party was authorized to bid, and court did not have to determine and order assignment of the property to one of the parties on terms established as equitable by the duly appointed commissioners. Weenolsen v. Kamber, 137 Vt. 540, 409 A.2d 577, 1979 Vt. LEXIS 1087 (1979).

Costs.

Section does not authorize apportionment of costs among parties interested. Watkins v. Merrihew, 102 Vt. 190, 147 A. 345, 1929 Vt. LEXIS 167 (1929).

Inconvenience.

Test of whether partition shall be made by sale, under this section, is “great inconvenience” of owners, essential consideration being pecuniary welfare of owners, and sale will not be ordered until it is shown to be for best interests of all owners, to determine which test is whether value of share of each owner in case of partition would be materially less than his share of money equivalent that can probably be obtained for whole. Blanchard v. Cross, 97 Vt. 370, 123 A. 382, 1924 Vt. LEXIS 172 (1924).

When real estate held in common cannot be divided without great inconvenience to the parties interested, fact that plaintiff is not hindered in enjoyment of his share of rents and profits of premises furnished no ground why court, upon proper petition to that effect, should refuse to order assignment of whole to one party sale for benefit of all of them. Baldwin v. Aldrich, 34 Vt. 526, 1861 Vt. LEXIS 91 (1861).

Mineral lands.

Partition by sale is not required for mineral lands as a matter of law; partition in kind is appropriate for mineral lands unless such a partition would prejudice one of the parties. Taran v. Vermont Structural Slate Co., Inc., 139 Vt. 441, 431 A.2d 448, 1981 Vt. LEXIS 494 (1981).

Report by commissioners.

In proceeding under this chapter, if commissioners find that property cannot be divided without great inconvenience, they should ascertain and report to court whether one of the owners is willing to take assignment of interest of other owner or owners, and sum or sums that are equitable compensation for assignment, as well as times and manner of payment; unless cause to contrary is shown report is to be accepted by court and judgment rendered for assignment to the party indicated therein; commissioners then proceed with the actual assignment. Billings v. Billings, 114 Vt. 70, 39 A.2d 748 (1944), same case 114 Vt. 512, 49 A.2d 179, 169 A.L.R. 864.

Right to partition by sale.

Partition in kind is favored over partition by sale, but where the statutory requirements of a partition by sale are met, a sale becomes a matter of right. Taran v. Vermont Structural Slate Co., Inc., 139 Vt. 441, 431 A.2d 448, 1981 Vt. LEXIS 494 (1981).

Sum equitable.

Commissioners, in determining sum equitable to be paid, should not be concerned with source of title or domestic relations of parties. Billings v. Billings, 114 Vt. 512, 49 A.2d 179 (1946), same case 114 Vt. 70, 39 A.2d 748, 169 A.L.R. 855.

Cited.

Cited in Shippee v. Shippee, 146 Vt. 594, 508 A.2d 701, 1986 Vt. LEXIS 332 (1986).

§ 5175. Sale, when ordered.

In case one of the parties interested will not take such assignment and pay such sum, the court shall order the commissioners to sell such estate at public or private sale.

History

Source.

V.S. 1947, § 2030. P.L. § 1978. G.L. § 2168. P.S. § 1891. V.S. § 1529. R.L. § 1289. G.S. 45, § 15. R.S. 40, § 15. R. 1797, p. 465, § 5.

ANNOTATIONS

Exceptions.

Vermont statutory scheme allows for assignment even when more than one co-tenant is willing to accept it, and gives the trial court discretion over whether to order an assignment and the choice of assignee. Wilk v. Wilk, 173 Vt. 343, 795 A.2d 1191, 2002 Vt. LEXIS 13 (2002).

Words “in case one of the parties interested will not take,” etc., contemplate order of sale except when one of parties, for himself individually, or for himself and others jointly, will take assignment and pay required sum on required terms; exception does not include case where two or more of owners, each for himself, elect to take assignment for sum and on terms judged by commissioners to be equitable. Billings v. Billings, 114 Vt. 512, 49 A.2d 179 (1946), same case 114 Vt. 70, 39 A.2d 748, 169 A.L.R. 855.

Partial case.

If on trial of petition for partition it appears that parties are tenants in common of only part of premises described in petition, court will proceed to make partition, assignment or sale, as case may require, of that part. Baldwin v. Aldrich, 34 Vt. 526, 1861 Vt. LEXIS 91 (1861).

§ 5176. Sale and conveyance.

The commissioners shall sell the estate agreeably to the order and execute conveyances to the purchaser thereof, which shall be a complete bar against the owners and persons claiming under them.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 152, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2031. P.L. § 1979. G.L. § 2169. P.S. § 1892. V.S. § 1530. R.L. § 1290. G.S. 45, § 16. R.S. 40, § 16. R. 1797, p. 465, § 5.

Amendments

—1971 (Adj. Sess.). Rephrased, substituted “a complete” bar for “an effectual” bar and omitted “both at law and in equity”.

ANNOTATIONS

Cited.

Cited in Shippee v. Shippee, 146 Vt. 594, 508 A.2d 701, 1986 Vt. LEXIS 332 (1986).

§ 5177. Disposal of proceeds.

The commissioners shall pay the proceeds of the sale to the several parties interested or their representatives, as the court directs, first deducting such sum as is allowed by the court for the plaintiff’s costs, which shall be paid the plaintiff.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 153, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2032. P.L. § 1980. G.L. § 2170. 1917, No. 254 , § 2133. P.S. § 1893. V.S. § 1531. R.L. § 1291. G.S. 45, § 17. R.S. 40, § 17. R. 1797, p. 465, § 5.

Amendments

—1971 (Adj. Sess.). Rephrased and substituted “plaintiff” for “petitioner”.

ANNOTATIONS

Adequacy of price.

Where commissioners have, under order of county court and upon due notice, sold property, their report should be accepted and distribution of funds received ordered, notwithstanding that price was grossly inadequate. Carver v. Spence, 67 Vt. 563, 32 A. 493, 1895 Vt. LEXIS 80 (1895).

Costs.

Section does not authorize apportionment of costs among the parties interested. Watkins v. Merrihew, 102 Vt. 190, 147 A. 345, 1929 Vt. LEXIS 167 (1929).

§ 5178. New partition—when ordered.

When an owner of a share in the estate who is not an inhabitant of the State at the commencement of the action and has not been given personal notice of the action and thinks himself or herself aggrieved by the partition, he or she may within three years after the making of the order, bring a new action in the court which made the order of partition. Notice shall be given persons interested, in the same manner as directed in the original action. Upon sufficient cause being shown, the court may order a new partition thereof or make such other order as appears just.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 154, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2033. P.L. § 1981. G.L. § 2171. P.S. § 1894. V.S. § 1532. R.L. § 1295. G.S. 45, § 24. R.S. 40, § 24. R. 1797, p. 467, § 8.

Amendments

—1971 (Adj. Sess.). Section amended generally.

§ 5179. How made.

When a new partition is ordered, more shall not be taken from any share or right than as such share or right is adjudged more than the proportion for which it was set off, estimating such estate as in the situation and at the time when it was first divided.

History

Source.

V.S. 1947, § 2034. P.L. § 1982. G.L. § 2172. P.S. § 1895. V.S. § 1533. R.L. § 1296. G.S. 40, § 25. R.S. 40, § 25. R. 1797, p. 467, § 8.

§ 5180. Pay for improvements.

When improvements have been made after the first partition on the share which it set off by such new partition, the party who made such improvements shall have reasonable satisfaction from the owner to whose share the same is added, to be estimated by the commissioners making such new partition, and the court may issue execution therefor.

History

Source.

V.S. 1947, § 2035. P.L. § 1983. G.L. § 2173. P.S. § 1896. V.S. § 1534. R.L. § 1297. G.S. 45, § 26. R.S. 40, § 26. R. 1797, p. 467, § 8.

§ 5181. Fees of commissioners—how fixed and paid.

When partition is made of real estate under this chapter, the commissioners shall be allowed such sum for their services and expenses as the court judges reasonable, which shall be paid by the parties as directed by the court. The costs allowed the plaintiff shall be paid by the owners of the estate in proportion to their respective rights therein.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 155, eff. March 29, 1972; 1975, No. 191 (Adj. Sess.).

History

Source.

V.S. 1947, § 2036. P.L. § 1984. G.L. § 2174. 1917, No. 254 , § 2137. P.S. § 1897. V.S. § 1535. R.L. §§ 1292, 1298. G.S. 45, §§ 18, 19, 27. R.S. 40, §§ 18, 19, 27. R. 1797, p. 466, § 6. R. 1787, p. 108. R. 1797, p. 467, § 8.

Amendments

—1975 (Adj. Sess.). Provided for parties in a petition for real estate to pay fees for the services of the commissioners.

—1971 (Adj. Sess.). Rephrased and substituted “plaintiff” for “petitioner”.

ANNOTATIONS

Costs.

Section does not authorize apportionment of costs among interested parties. Watkins v. Merrihew, 102 Vt. 190, 147 A. 345, 1929 Vt. LEXIS 167 (1929).

Where judgment of county court has been affirmed by Supreme Court, on exceptions, petitionee’s costs may be taxed after court adjourns, as in other cases. Strong v. Hobbs, 20 Vt. 192, 1848 Vt. LEXIS 17 (1848).

All costs which accrued in consequence of trial of any facts alleged in petition, to which petitionees interposed plea of denial, and upon which petitioner prevailed, are properly taxable in favor of petitioner; although in practice costs in regard to trial have only been taxed when title in the land, in some way, came in dispute between parties. Strong v. Hobbs, 20 Vt. 192, 1848 Vt. LEXIS 17 (1848).

Enforcement.

Where case was finished in Supreme Court, and petitionees refused to pay their proportion of the costs respectively, the court had power to order commissioners to sell land. Strong v. Hobbs, 20 Vt. 192, 1848 Vt. LEXIS 17 (1848); Lindquist v. Adams, 174 Vt. 179, 811 A.2d 173, 2002 Vt. LEXIS 226 (2002).

§ 5182. Party’s share sold if he or she does not pay.

When any such owner does not pay his or her proportion of such costs, the court shall direct so much of his or her share of the estate to be sold at public auction as is sufficient to pay the same, with costs of sale.

History

Source.

V.S. 1947, § 2037. P.L. § 1985. G.L. § 2175. P.S. § 1898. V.S. § 1536. R.L. § 1293. G.S. 45, § 19. R.S. 40, § 19. R. 1797, p. 466, § 6. R. 1787, p. 108.

§ 5183. Conveyance on sale.

On such sale, the commissioners shall execute conveyances to the purchaser, who shall hold such estate by virtue thereof against such owner or persons claiming under him or her.

History

Source.

V.S. 1947, § 2038. P.L. § 1986. G.L. § 2176. P.S. § 1899. V.S. § 1537. R.L. § 1294. G.S. 45, § 20. R.S. 40, § 20. R. 1797, p. 466, § 6. R. 1787, p. 108.

§ 5184. Purchase by or for commissioners prohibited.

A commissioner, or other person in trust for him or her, shall not become a purchaser at a sale under this chapter.

History

Source.

V.S. 1947, § 2039. P.L. § 1987. G.L. § 2177. P.S. § 1900. V.S. § 1538. R.L. § 1299. G.S. 45, § 21. R.S. 40, § 21. R. 1797, p. 466, § 6. R. 1787, p. 108.

§ 5185. Conveyance before service of complaint.

A partition of real estate made under this chapter shall not be avoided in consequence of a conveyance by an owner of a part of the estate of his or her interest therein executed prior to the service of the summons and complaint, unless it appears that the plaintiff had knowledge of the conveyance or that it was recorded according to law at the time the complaint was served or notice given as hereinbefore provided.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 156, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2040. P.L. § 1988. G.L. § 2178. P.S. § 1901. V.S. § 1539. R.L. § 1300. G.S. 45, § 22. R.S. 40, § 22. R. 1797, p. 466, § 7. R. 1787, p. 109.

Amendments

—1971 (Adj. Sess.). Rephrased and substituted “summons and complaint” and “complaint” for “petition” and “plaintiff” for “petitioner”.

§ 5186. Shares set off shall inure to use of owner.

In making such partition, if a share or right in the estate is set off or assigned to a person other than the legal owner, such share shall inure to the use and benefit of the legal owner, his or her heirs and assigns, as though the same had been set off or assigned to him or her.

History

Source.

V.S. 1947, § 2041. P.L. § 1989. G.L. § 2179. P.S. § 1902. V.S. § 1540. R.L. § 1301. G.S. 45, § 23. R.S. 40, § 23. R. 1797, p. 466, § 7. R. 1787, p. 109.

§ 5187. Commissioner disqualified, others may act.

When a commissioner appointed under this chapter dies, becomes unable to perform his or her duties due to a mental condition or psychiatric disability, removes from the State, or becomes otherwise disqualified to act, the survivors may exercise the powers granted to the whole number.

HISTORY: Amended 2013, No. 96 (Adj. Sess.), § 49.

History

Source.

V.S. 1947, § 2042. P.L. § 1990. G.L. § 2180. P.S. § 1903. V.S. § 1541. R.L. § 1302. G.S. 45, § 28. R.S. 40, § 28. R. 1797, p. 468, § 9. R. 1787, p. 110.

Amendments

—2013 (Adj. Sess.). Substituted “unable to perform his or her duties due to a mental condition or psychiatric disability” for “insane” following “becomes”.

§ 5188. Death or nonjoinder of part owner.

An action for the partition of real estate shall not be dismissed or proceedings thereon suspended in consequence of the death of an owner or person interested in the estate, or because all the parties interested in the estate are not named in the complaint. In the event of the death of an owner or person interested in the estate, that owner’s right or share shall be set off to his or her legal representatives. If all the parties interested in the estate are not named in the complaint, every such party not named in the complaint shall have his or her name entered therein and his or her right or share set off and allotted to him or her in proportion to his or her interest in the estate.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 157, eff. March 29, 1972.

History

Source.

V.S. 1947, § 2043. P.L. § 1991. G.L. § 2181. P.S. § 1904. V.S. § 1542. R.L. § 1303. G.S. 45, § 29. R.S. 40, § 29. R. 1797, p. 468, § 10.

Amendments

—1971 (Adj. Sess.). Rephrased and substituted “action” and “complaint” for “petition”.

Chapter 181. Penal Bonds

§ 5241. Bonds chancered; assessment of damages.

In actions brought to recover the forfeiture annexed to any articles of agreement, covenant, bond, bond of recognizance, with condition thereto annexed, contract, charter-party, or other specialty given or taken in a civil matter, when the forfeiture, breach, or nonperformance appears by the trial of an issue of fact, by the default or confession of the defendant or upon demurrer, the court in which the action is pending may render judgment for the plaintiff to recover so much as is equitably due. When the sum for which judgment ought to be rendered is uncertain, on the request of either party, the same shall be assessed by a jury.

History

Source.

V.S. 1947, § 1673. P.L. § 1633. G.L. § 1834. P.S. § 1535. V.S. § 1184. R.L. § 942. G.S. 30, § 63. R.S. 25, § 42. 1816, p. 125, § 2. 1803, p. 53. R. 1797, p. 110, § 75. 1791, p. 15. R. 1787, p. 44.

References in text.

The reference to “upon demurrer” in the first sentence is obsolete. See V.R.C.P. 7(c).

CROSS REFERENCES

Chancering of recognizance taken in criminal cause, see 13 V.S.A. § 7570 .

ANNOTATIONS

Conditions of bonds.

Under recognizance conditional for payment of judgment in default of principal’s appearance, liability was limited to amount of judgment, although recognizance was for more. Worthen v. Prescott, 60 Vt. 68, 11 A. 690, 1887 Vt. LEXIS 71 (1887).

A condition in a bond to do or not to do certain acts is in legal effect and operation a stipulation or covenant to do or not to do such acts. Marvin v. Bell, 41 Vt. 607 (1869); United States Use of Stanstead Granite Quarries Co. v. United States Fidelity & Guaranty Co., 78 Vt. 445, 63 A. 581 (1906), same case 80 Vt. 84, 66 A. 809, 82 Vt. 94, 71 A. 1106.

Construction with § 5242.

This section and § 5242 of this title refer to the same kind of bonds, covenants, agreements, etc.; this section applies when only one assessment of damages is required, and § 5242 applies when nature of condition is such that breaches and injury resulting therefrom may be continuous. Marvin v. Bell, 41 Vt. 607, 1869 Vt. LEXIS 14 (1869); Williams v. Willson, 1 Vt. 266, 1828 Vt. LEXIS 24 (1828); Sinclair v. Gadcomb, 1 Vt. 32, 1827 Vt. LEXIS 1 (1827).

Injunction bonds.

Damages provided for in an injunction bond are real, and mere nominal damages are not allowable. Foster v. Stafford Nat’l Bank, 58 Vt. 658, 5 A. 890 (1886), same case 57 Vt. 128.

Amount of damages in actions of particular injunction bonds, see Hill v. Hill, 59 Vt. 125, 7 A. 468 (1886), same case 53 Vt. 578; Lillie v. Lillie, 55 Vt. 470 (1883), same case 56 Vt. 714.

On dissolution of an injunction granted on condition that a bond of a specified amount be filed and filing of bond with no other order as to payment of damages which might result from granting the injunction, defendant can recover no greater amount than the penalty of the bond; if the injunction had issued, conditioned that plaintiff pay all damages sustained, the case might merit a different conclusion. Glover v. McGaffey, 56 Vt. 294 (1883), same case 55 Vt. 171, 70 A.L.R. 64.

Jury trial.

In every case under this section where sum for which judgment ought to be rendered is uncertain, either party has a right to have damages assessed by a jury; and if a motion therefor is made by either party and the application is refused, and the motion dismissed by court, it is error. Benham v. Sage, 1 D. Chip. 247 (Vt. July 1, 1814).

Other remedies.

Sections 5241-5244 of this title do not furnish a remedy to the exclusion of an action at common law. United States Use of Stanstead Granite Quarries Co. v. United States Fidelity & Guaranty Co., 78 Vt. 445, 63 A. 581 (1906), same case 80 Vt. 84, 66 A. 809, 82 Vt. 94, 71 A. 1106, 77 A.L.R. 24.

Common law action of covenant, which each unpaid laborer or materialman is entitled to maintain on said condition of a contractor’s bond under federal act, is not controlled by provisions of §§ 5241-5244 of this title, relative to actions on penal bonds. United States Use of Stanstead Granite Quarries Co. v. United States Fidelity & Guaranty Co., 78 Vt. 445, 63 A. 581 (1906), same case 80 Vt. 84, 66 A. 809, 82 Vt. 94, 71 A. 1106, 77 A.L.R. 24.

Purpose.

Purpose of §§ 5241-5244 of this title, relative to actions on penal bonds, is to relieve defendants in actions of debt on bonds from having to resort to a court of equity to reduce the sum recovered from the amount of the penalty of the bond to the amount of damages actually proved. United States Use of Stanstead Granite Quarries Co. v. United States Fidelity & Guaranty Co., 78 Vt. 445, 63 A. 581 (1906), same case 80 Vt. 84, 66 A. 809, 82 Vt. 94, 71 A. 1106.

Several obligees.

Sections 5241-5244 of this title are adapted to cases where there is only one obligee in the bond, or several obligees having joint rights, but not to cases where rights of obligees are entirely independent of each other. United States Use of Stanstead Granite Quarries Co. v. United States Fidelity & Guaranty Co., 78 Vt. 445, 63 A. 581 (1906), same case 80 Vt. 84, 66 A. 809, 82 Vt. 94, 71 A. 1106.

§ 5242. Damages assessed on breaches assigned.

In actions on bond or for a penal sum for the nonperformance of covenants or agreements contained in a condition, indenture, deed, or writing, the plaintiff may assign as many breaches as he or she chooses. Damages shall be assessed for such breaches as he or she proves and judgment rendered for the whole penalty, and execution shall issue for so much only as is found in damages, with costs.

History

Source.

V.S. 1947, § 1674. P.L. § 1634. G.L. § 1835. P.S. § 1536. V.S. § 1185. R.L. § 943. G.S. 30, § 65. R.S. 25, § 44. R. 1797, p. 124, § 99.

ANNOTATIONS

Generally.

See annotations under § 5241 of this title.

§ 5243. Damages in case of default.

When in an action designated in section 5242 of this title there is judgment for the plaintiff on a motion to dismiss or for summary judgment, default, or confession, the plaintiff may recover for as many breaches as he or she has pleaded the truth whereof shall be found. The damages shall be assessed and execution shall issue for those damages only with costs.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 158, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1675. P.L. § 1635. G.L. § 1836. P.S. § 1537. V.S. § 1186. R.L. § 944. G.S. 30, § 66. R.S. 25, § 45. R. 1797, p. 124, § 99.

Amendments

—1971 (Adj. Sess.). Section amended generally.

§ 5244. Action on judgment for other breaches.

The judgment shall remain as a security to the plaintiff or his or her representatives for any other breaches which he or she afterward proves. From time to time he or she may bring an action on the judgment against the defendant or his or her representatives and assign other breaches. Thereupon damages shall be assessed and execution shall issue for the same, with costs.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 159, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1676. P.L. § 1636. G.L. § 1837. P.S. § 1538. V.S. § 1187. R.L. § 945. G.S. 30, § 67. R.S. 25, § 46. R. 1797, p. 124, § 99.

Amendments

—1971 (Adj. Sess.). Rephrased and substituted “bring an action” for “have a scire facias”.

§ 5245. Action on judgment in Supreme Court.

When in an action designated in section 5242 of this title judgment is rendered for the penalty in the Supreme Court, the action may be brought in the Superior Court in the same county in which the original judgment was rendered.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 160, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1677. P.L. § 1637. G.L. § 1838. P.S. § 1539. V.S. § 1188. R.L. § 946. G.S. 30, § 68. R.S. 25, § 47.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1971 (Adj. Sess.). Rephrased, added reference to section 5242 and substituted “action” for “scire facias”.

ANNOTATIONS

Generally.

Judgment rendered in Supreme Court against surety for amount of his recognizance in bastardy case, payable in instalments, stands as a security for payment of subsequent instalments, and scire facias may be brought in county court to enforce such judgment. Freeman v. Batchelder, 36 Vt. 292 (1863), same case 35 Vt. 13.

§ 5246. Bond of sheriff and high bailiff—action by a creditor after execution returned unsatisfied.

When judgment is rendered against a sheriff or high bailiff for official misconduct, neglect, or default and execution on the judgment is returned unsatisfied or the defendant is committed to jail thereon, the creditor in the execution may bring an action, in his or her own name and right, on the recognizance or bond entered into by the sheriff or high bailiff and his or her sureties for the faithful performance of the duties of his or her office in the Superior Court of the county where the recognizance or bond was taken.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 161, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1678. P.L. § 1638. G.L. § 1839. P.S. § 1540. 1902, No. 157 , § 1. V.S. § 1189. R.L. § 947. G.S. 30, § 69. R.S. 25, § 48. R. 1797, p. 94, § 41. 1788, p. 10.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”

—1971 (Adj. Sess.). Rephrased and omitted reference to scire facias.

ANNOTATIONS

Remedy against surety.

Remedy for individuals against bail of a delinquent sheriff is confined to scire facias on the bond, in their own names, against such bail, after having obtained judgment against sheriff and committed him to jail, or obtained a return of non est inventus against him. Fuller v. Holmes, 1 Aik. 111 (Vt. 1826).

§ 5247. Judgment.

Unless cause is shown to the contrary on the trial of the action, the court shall render judgment against the sheriff or high bailiff and his or her sureties, in favor of the creditor, for the amount of the execution and charges thereon with interest and costs.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 162, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1679. P.L. § 1639. G.L. § 1840. P.S. § 1541. V.S. § 1190. R.L. § 948. G.S. 30, § 70. R.S. 25, § 49. 1809, p. 101. R. 1797, p. 94, § 41. 1788, p. 10.

Amendments

—1971 (Adj. Sess.). Rephrased and substituted “on the trial of the action” for “and on the return of such writ of scire facias”.

§ 5248. Defense by defendant and sureties.

The defendant in the action may make any defense that he or she could have made, had an action of contract been brought on the recognizance or bond. When the original judgment against the sheriff or high bailiff was rendered by default and the creditor brings an action under section 5246 of this title, the sureties may make any defense which the principal might have made in the original action.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 163, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1680. P.L. § 1640. G.L. § 1841. P.S. § 1542. 1902, No. 157 , § 1. V.S. § 1191. R.L. § 949. G.S. 30, §§ 71, 72. R.S. 25, §§ 50, 51. 1809, p. 103. R. 1797, p. 94, § 41. 1788, p. 11.

References in text.

The reference to “an action of contract” in the first sentence is obsolete. See V.R.C.P. 2, 81(c), and 1971, No. 185 (Adj. Sess.), § 236.

Amendments

—1971 (Adj. Sess.). Rephrased, omitted references to scire facias and added reference to section 5246.

ANNOTATIONS

Conclusiveness of judgment.

In scire facias on sheriff’s official recognizance, previous judgment against sheriff is conclusive of the plaintiff’s right to a judgment against sheriff and his bail, as against all defenses which sheriff might have urged in opposition to the suit against him alone, except when judgment was rendered against sheriff by default. Bradley v. Chamberlin, 35 Vt. 277, 1862 Vt. LEXIS 34 (1862).

§ 5249. When the principal has removed from the State.

When a person liable as sheriff or high bailiff for official misconduct, neglect, or default has removed from the State leaving no known attachable property therein, so that service of process cannot be made upon him or her, an action founded in contract may be brought directly upon the recognizance or bond of the sheriff or high bailiff and his or her sureties by the party entitled thereto, without first bringing suit against the sheriff or high bailiff. In the action, the sureties may make any defense which their principal might have made if the action had been against him or her directly for the misconduct, neglect, or default.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 164, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1681. P.L. § 1641. G.L. § 1842. P.S. § 1543. 1902, No. 157 , § 1. V.S. § 1192. R.L. § 950. 1865, No. 41 . G.S. 30, § 73. 1860, No. 16 .

Amendments

—1971 (Adj. Sess.). Rephrased and omitted reference to scire facias.

ANNOTATIONS

Removal.

Word “removal” in this section is used in its ordinary acceptation, and means a change of the domicile of the sheriff while in life, from this State to another. Tute, Fay & Mowrey v. James, 46 Vt. 60 (1873), same case 50 Vt. 124.

Time of action.

This section is to be construed literally as to time when action may be brought, and the right of action exists whenever the liability of the sheriff and inability to serve process upon him concur. Hine v. Pomeroy, 40 Vt. 103 (1868), same case 39 Vt. 211.

Chapter 183. Replevin

Subchapter 1. Replevin by Defendant of Attached Goods

§§ 5301-5305. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 5301-5305. Former §§ 5301-5305 related to replevin by defendant of attached goods.

Such sections are now covered by V.R.C.P. 4.1(e).

Former § 5301 was derived from V.S. 1947, § 1955; P.L. § 1902; G.L. § 2091; P.S. § 1820; V.S. § 1465; R.L. § 1225; 1872, No. 46 ; G.S. 35, § 8; R.S. 30, § 9; R. 1797, p. 96, § 46; R. 1787, p. 27.

Former § 5302 was derived from V.S. 1947, § 1956; 1945, No. 29 , § 12; P.L. § 1903; G.L. § 2092; P.S. § 1821; V.S. § 1466; R.L. § 1226; G.S. 35, §§ 8, 9; R.S. 30, §§ 9, 10; R. 1797, p. 96, § 46; R. 1787, p. 27.

Former § 5303 was derived from V.S. 1947, § 1957; P.L. § 1904; G.L. § 2093; P.S. § 1822; V.S. § 1467; R.L. § 1227; 1872, No. 46 ; G.S. 35, § 10; R.S. 30, § 11; R. 1797, p. 96, § 46.

Former § 5304 was derived from V.S. 1947, § 1958; 1945, No. 29 , § 13; P.L. § 1905; G.L. § 2094; P.S. § 1823; V.S. § 1468; R.L. § 1228; G.S. 35, § 11; R.S. 30, § 12; R. 1797, p. 96, § 46.

Former § 5305 was derived from V.S. 1947, § 1959; P.L. § 1906; G.L. § 2095; P.S. § 1824; V.S. § 1469; R.L. § 1229; G.S. 35, § 12; R.S. 30, § 13; R. 1797, p. 96, § 46; R. 1787, p. 147.

Subchapter 2. Replevin for Beasts Distrained

§ 5321. When maintainable.

If beasts are distrained or impounded to recover a penalty or forfeiture alleged to have been incurred by their going at large or to obtain satisfaction for damages alleged to have been done by them, the owner thereof may maintain an action of replevin therefor.

History

Source.

V.S. 1947, § 1960. P.L. § 1907. G.L. § 2096. P.S. § 1813. V.S. § 1458. R.L. § 1218. G.S. 35, § 1. R.S. 30, § 1. R. 1797, p. 368, § 5.

ANNOTATIONS

Nature of action.

The gist of the action of replevin under this section is the detention and not the taking. Rowe v. Hicks, 58 Vt. 18, 4 A. 563, 1886 Vt. LEXIS 89 (1886).

Parties.

Section does not contemplate that writ will be brought against poundkeeper, but against impounder. Mellen v. Moody, 23 Vt. 674, 1851 Vt. LEXIS 90 (1851).

§ 5322. Judgment for defendant.

When it appears upon the nonsuit of the plaintiff, or upon trial, that the beasts were lawfully taken or distrained, the defendant shall have judgment for such sum as is due from the plaintiff for the penalty or forfeiture or for the damages for which the beasts were impounded, with the legal fees and charges incurred by the distress, and the costs of the action of replevin.

History

Source.

V.S. 1947, § 1961. P.L. § 1908. G.L. § 2097. P.S. § 1818. V.S. § 1463. R.L. § 1223. G.S. 35 § 6. R.S. 30, § 7.

ANNOTATIONS

Damages.

The only damages which impounder of animals damage feasant is entitled to recover in action of replevin against him are such as were occasioned by particular trespass which they were committing when they were taken to be impounded. Holden v. Torrey, 31 Vt. 690, 1859 Vt. LEXIS 48 (1859).

§ 5323. Judgment for plaintiff.

When it appears upon the default of the defendant or upon trial that the beasts were taken or distrained without justifiable cause, the plaintiff shall have judgment for his or her damages caused thereby, and his or her costs.

History

Source.

V.S. 1947, § 1962. P.L. § 1909. G.L. § 2098. P.S. § 1819. V.S. § 1464. R.L. § 1224. G.S. 35, § 7. R.S. 30, § 8.

Subchapter 3. Other Replevin of Goods

§ 5331. For what and where maintainable.

A person may maintain an action of replevin for goods in the county in which the goods are detained in any of the following circumstances:

  1. When goods are unlawfully taken or unlawfully detained from the owner or person entitled to the possession thereof.
  2. When goods or chattels which are attached on mesne process or taken in execution are claimed by a person other than the defendant in the action or debtor in the execution.
  3. When goods are attached or taken in execution and are claimed by the defendant in the action or debtor in the execution as exempt from attachment and levy.

History

Source.

V.S. 1947, § 1963. P.L. § 1910. G.L. § 2099. P.S. §§ 1825, 1826, 1841. 1898, No. 41 , § 1. V.S. §§ 1470, 1471, 1486. R.L. §§ 1230, 1231, 1246. G.S. 31, § 19. G.S. 35, §§ 13, 14. 1853, No. 8 , § 2. R.S. 30, §§ 14, 15.

CROSS REFERENCES

Replevin of property seized under liquor laws, see 7 V.S.A. § 580 .

ANNOTATIONS

Bond.

Plaintiff in a replevin action acquires no title or right to sell property by filing a bond in accordance with statute. Farnham v. Chapman, 60 Vt. 338, 14 A. 690 (1888), same case 61 Vt. 395, 18 A. 152.

When replevin bond was conditioned for return of only part of the property, suit was dismissed to that for which no bond was given, and plaintiff in such case could not remedy his mistake by filing a new bond. Eastman v. Barnes, 58 Vt. 329, 1 A. 569, 1885 Vt. LEXIS 4 (1885).

Replevy of liquor seized on complaint and warrant as intoxicating is of that class of replevin provided for in this section; and a bond like that required in replevin by a defendant, of goods attached on mesne process, is not proper in such cases. H.K. Thurber & Co. v. Richmond, 46 Vt. 395, 1874 Vt. LEXIS 11 (1874).

Writ of replevin under this section dismissed where bond given was in the form applicable only to the case of goods attached and replevied by defendant. Campbell v. Morey, 27 Vt. 575, 1855 Vt. LEXIS 73 (1855).

Burden of proof.

Statutory action of replevin was not intended to affect the application of the common law rules relating to the burden of proof. Zeno v. Mason, 90 Vt. 173, 97 A. 355, 1916 Vt. LEXIS 255 (1916).

In replevin against officer for taking property, where the defense was taking under conditional sale lien, which plaintiff claimed had been waived, instruction that burden was on defendant to establish every material fact necessary to entitle him to a verdict was error, for burden of showing waiver of the lien rests on party making that claim. Zeno v. Mason, 90 Vt. 173, 97 A. 355, 1916 Vt. LEXIS 255 (1916).

Construction with other laws.

A motion pursuant to V.R.Cr.P. 41(e), governing the return of property allegedly seized in violation of law, is essentially a replevin action that lies exclusively against the State, and it is well settled that a party demanding possession cannot maintain a replevin action against a defendant who, at the time the action is instituted, is not in possession of or cannot exercise control over the property sought. State v. Wetherbee, 2004 VT 101, 177 Vt. 274, 866 A.2d 527, 2004 Vt. LEXIS 284 (2004).

Provision of § 5371 of this title that writs of replevin commenced under this section to recover possession of property unlawfully taken or detained shall be issued by justice of the peace or out of municipal court is mandatory and master in chancery has no authority to sign such writ. Ramsey v. McDonald, 108 Vt. 180, 184 A. 691 (1936), but see § 5301 of this title (attached goods claimed by defendant in action).

Costs.

No recognizance for costs is required in replevin writ. Russell v. Lund, 114 Vt. 16, 39 A.2d 337, 1944 Vt. LEXIS 79 (1944).

Damages.

In action of replevin, no recovery of damages can be had for detention of goods and chattels, named in the writ, but not actually replevied. Bagley v. Cooper, 90 Vt. 576, 99 A. 230, 1916 Vt. LEXIS 316 (1916).

Verdict in replevin that defendant is guilty and judgment thereon, without mention of damages or costs, establishes plaintiff’s right of possession, defendant’s wrongful taking and detention and, by consequence, plaintiff’s right to at least nominal damages; and clerk is justified in issuing an execution for such damages and costs and if damages be omitted, the execution will not for that reason be set aside on audita querela. Starkey v. Waite, 69 Vt. 193, 37 A. 292 (1896), same case 68 Vt. 181, 34 A. 692.

Defenses.

In action of replevin commenced under this section where motion to dismiss writ because of noncompliance with statutory requirements and as not in accordance with form prescribed was not filed for nearly three months after expiration of time allowed for filing pleas of dilatory nature, right to take advantage of the irregularity was waived. Shapiro v. Reed, 98 Vt. 76, 126 A. 496, 1924 Vt. LEXIS 136 (1924); Shapiro v. Whitman, 98 Vt. 81, 126 A. 497, 1924 Vt. LEXIS 137 (1924).

Definitions.

In the first clause of section providing that action of replevin may be maintained for goods unlawfully taken or detained from owner thereof, term “goods” includes both animate and inanimate movable property. Eddy v. Davis, 35 Vt. 247 (1862), same case 34 Vt. 209.

Jurisdiction.

It is error for county court to render judgment for return of property replevied, in an action of which it has no jurisdiction. Widber v. Benjamin, 75 Vt. 152, 53 A. 1071, 1903 Vt. LEXIS 106 (1903).

Liability of officer.

Officer in taking property upon a writ of replevin in favor of the owner, is the owner’s agent in the taking, and may defend as such, although his justification under the process fails. Wheeler v. Selden, 62 Vt. 310, 20 A. 197 (1890), same case 63 Vt. 429, 21 A. 615.

Nature of proceeding.

Replevin for unlawful taking and detention of goods is creature of statute. Zeno v. Mason, 90 Vt. 173, 97 A. 355, 1916 Vt. LEXIS 255 (1916).

Right to maintain replevin for goods did not exist at common law, but is conferred by statute, and must therefore be exercised under restrictions which statute has imposed. Prescott v. Starkey, 71 Vt. 118, 41 A. 1021, 1898 Vt. LEXIS 32 (1898).

—Taking and detention.

Taking and detention are two vital issues in action of replevin under this section and judgment on action must dispose of both of them. Patch v. Lathrop, 116 Vt. 151, 70 A.2d 605, 1950 Vt. LEXIS 124 (1950).

Mortgagee, to maintain replevin for property to which he holds title by chattel mortgage, against officer who has taken same in execution against mortgagor, must show that such officer has unlawfully taken or detained the property; that is, that he holds it in a way inconsistent with the statutes permitting attachment and sale of mortgagor’s interest; it is not enough that he has levied upon and advertised it for sale. National Bank v. Miller, 67 Vt. 66, 30 A. 700, 1894 Vt. LEXIS 12 (1894).

One lawfully in possession and use of article does not subject himself to action of replevin under this section for unlawful detention by continuing to use article without reply after receiving letter from owner demanding it. Dearing & Co. v. Smith, 66 Vt. 60, 28 A. 630, 1893 Vt. LEXIS 18 (1893).

Where husband and wife together owned a farm and wife entrusted entire management to her husband, who leased it, reserving a lien on increase of stock to secure performance of conditions of lease, such increase cannot be attached upon debts of tenants, and husband may in his own name replevy it from officer who has so attached it. Pelton v. Draper, 61 Vt. 364, 17 A. 494, 1889 Vt. LEXIS 46 (1889).

Where divorced wife, who had been assigned their dwelling as her separate property, refused to let her husband enter the house, but offered to put out any property he had in the house, there was no taking or detaining that would sustain replevin by the husband. Bent v. Bent, 44 Vt. 633 (1872), same case 43 Vt. 42.

Where common carrier was liable to owner of goods for damage caused by fault of carrier in their transportation, to an amount larger than carrier’s charge for freight, and carrier refused to deliver them until the freight charge was paid, the detention was unlawful as the carrier’s lien was only co-extensive with the right to claim and recover freight. Dyer v. Grand Trunk Ry., 42 Vt. 441, 1869 Vt. LEXIS 102 (1869).

Owner of beasts unjustly detained by poundkeeper may have replevin against him for the beasts, under this section, but such claim must rest wholly upon wrongful act of poundkeeper. Mellen v. Moody, 23 Vt. 674, 1851 Vt. LEXIS 90 (1851).

Parties.

Plaintiff may not maintain replevin against cotenant. Barber v. Richardson, 57 Vt. 408, 1885 Vt. LEXIS 70 (1885).

Pleadings.

Plea of not guilty puts in issue every material fact, the ownership of the property as well as the taking and detention. Zeno v. Mason, 90 Vt. 173, 97 A. 355, 1916 Vt. LEXIS 255 (1916); Plainfield v. Batchelder, 44 Vt. 9, 1871 Vt. LEXIS 79 (1871).

Not guilty is, by statute, the proper general issue in replevin. Campbell v. Camp, 69 Vt. 97, 37 A. 238, 1896 Vt. LEXIS 14 (1896).

In replevin under this section, not guilty is a proper plea, and under it the defendant may justify under legal process. Loop v. Williams, 47 Vt. 407, 1875 Vt. LEXIS 35 (1875).

Possession.

Where contract was repudiated and there was no adequate remedy by suit for damages resulting from breach, innocent party, if subject matter of contract permits, may maintain replevin for specific property to possession of which he is entitled. Thompson-Starrett Co. v. Plunkett, 89 Vt. 177, 94 A. 845, 1915 Vt. LEXIS 203 (1915).

Right to possession of property is sufficient to maintain replevin against one who has neither title nor such right. Tittemore v. Labounty, 60 Vt. 624, 15 A. 196, 1888 Vt. LEXIS 191 (1888); Cox v. Fay, 54 Vt. 446, 1882 Vt. LEXIS 33 (1882).

A joint owner of personal property can maintain replevin in his own name to recover it, against one whose right to it is not superior to his. Chaffee v. Harrington, 60 Vt. 718, 15 A. 350, 1888 Vt. LEXIS 203 (1888).

Replevin lies against one who attached specific articles of personal property which did not belong to defendant in the attachment proceeding, but were property of a third person; viz., plaintiff in the replevin action. Tripp v. Leland, 42 Vt. 487 (1869), same case 39 Vt. 63; Esty v. Love, 32 Vt. 744, 1860 Vt. LEXIS 34 (1860).

Right to possession, as against defendant only, is all that is necessary to maintain replevin. Sprague v. Clark, 41 Vt. 6, 1868 Vt. LEXIS 65 (1868).

Where one executed a contract of sale of personal property, but retained it in his possession pursuant to the contract, he could maintain replevin for the unlawful taking and detention of the same by any other person. Wills v. Barrister, 36 Vt. 220, 1863 Vt. LEXIS 64 (1863).

Purpose.

Purpose of statutory action of replevin is limited to abolishing intricate pleadings required in replevin at common law. Zeno v. Mason, 90 Vt. 173, 97 A. 355, 1916 Vt. LEXIS 255 (1916).

Title.

In action of replevin plaintiff must make out his title affirmatively and cannot resort to defects in title of defendant. Keniston v. Stevens, 66 Vt. 351, 29 A. 312, 1894 Vt. LEXIS 105 (1894).

Writ.

Writ in replevin must be returnable in county where the goods are detained at the time suit is begun; and if they are afterwards removed into another county, it may be served there. Crosier v. Stillson, 67 Vt. 315, 31 A. 779, 1895 Vt. LEXIS 53 (1895).

In an action of trover for the conversion of property, officer who had taken it by virtue of writ of replevin could not justify under the process, unless he returned it to court to which it was returnable. Wright v. Marvin, 59 Vt. 437, 9 A. 601, 1887 Vt. LEXIS 129 (1887).

Writ of replevin is a writ of summons, not attachment, and service upon defendant must conform to the provisions of statute as to the service of writs of summons, and delivery of copy to agent of defendant, latter being out of the State, is not sufficient. Gaffield v. Avery, 43 Vt. 668, 1871 Vt. LEXIS 73 (1871).

§ 5332. Damages when replevin delays service of execution.

If the goods, when replevied, were taken in execution or attached, and judgment is afterwards rendered for the attaching creditor, and if, in either case, the service of the execution is delayed by means of the replevin, the damages assessed for the defendant, upon judgment for a return, shall not be less than 12 percent annually, on the value of the goods, for such time as the service of the execution is so delayed.

History

Source.

V.S. 1947, § 1964. P.L. § 1912. G.L. § 2191. P.S. § 1829. V.S. § 1474. R.L. § 1234. G.S. 35, § 17. R.S. 30, § 18.

ANNOTATIONS

Interest.

If service of execution has been delayed by replevin suit defendant is entitled to interest at rate of twelve per cent upon value of interest of the execution-defendant in goods, under this section. Burton v. Kennedy, 63 Vt. 350, 21 A. 529, 1891 Vt. LEXIS 114 (1891).

§ 5333. Service not delayed as to balance of execution; alias execution.

When the goods or chattels were taken in execution, the service thereof shall not be delayed as to any balance due thereon, after deducting the value of such goods or chattels, but the officer may execute the same, and the creditor may have an alias execution for such balance as if payment had been made thereon to the value of such goods or chattels. If judgment is rendered in favor of the plaintiff in replevin, the creditor may have an alias execution as if such goods or chattels had not been taken in execution.

History

Source.

V.S. 1947, § 1965. P.L. § 1913. G.L. § 2102. P.S. § 1830. V.S. § 1475. R.L. § 1235. G.S. 35, § 18. R.S. 30, § 19.

§ 5334. Sale of goods returned.

When judgment is rendered in favor of the defendant in the action of replevin, and the goods or chattels are returned, the same may be sold and the proceeds applied by the officer who took them in execution as if they had not been replevied.

History

Source.

V.S. 1947, § 1966. P.L. § 1914. G.L. § 2103. P.S. § 1831. V.S. § 1476. R.L. § 1236. G.S. 35, § 19. R.S. 30, § 20.

§ 5335. Sums recovered by officer, how applied.

Sums recovered in an action of replevin by an officer for or on account of goods attached or taken in execution by him or her, or recovered in an action on the bond given upon the replevin of such goods, shall be applied so far as they will go:

  1. to pay the fees and charges of the officer and reasonable expenses of the action of replevin, and the action on the bond, so far as they are not reimbursed by the costs recovered;
  2. to pay to the creditor, at whose action the goods were attached or taken in execution, the sum, if any, recovered in that action, or so much thereof as remains unpaid, with 12 percent interest for such time as the money has been withheld from the creditor, or the service of his or her execution delayed by reason of the replevin;
  3. if the attaching creditor does not recover judgment in his or her action, or if a balance remains of the monies so recovered by the officer, after so paying what is due to the creditor, such balance, or the whole amount, shall be disposed of as any surplus would be if the same goods had been sold on execution.

History

Source.

V.S. 1947, § 1967. P.L. § 1915. G.L. § 2104. P.S. § 1832. V.S. § 1477. R.L. § 1237. G.S. 35, § 20. R.S. 30, § 21.

§ 5336. Attachment lien preserved.

When the goods which are replevied had been attached, they shall, in case of a judgment for return, be held liable to the attachment and to levy of execution in the same manner as though replevin thereof had not been made. When final judgment is rendered before the return of the goods or if the goods, when replevied, were seized and held on execution, they shall be held subject to the same attachment or seizure for 30 days after the return, in order that the execution may be served thereon or the service completed, as it might have been if the goods had not been replevied.

History

Source.

V.S. 1947, § 1968. P.L. § 1916. G.L. § 2105. P.S. § 1834. V.S. § 1479. R.L. § 1239. G.S. 35, § 23. R.S. 30, § 24.

§ 5337. Writ of reprisal.

When the officer to whom the writ of return is committed cannot find the goods replevied, so as to deliver them to the defendant, he or she shall make return of that fact upon such writ, and the defendant shall thereupon be entitled to a writ of reprisal, to be awarded and issued upon his or her motion by the court in which the judgment was rendered, to take the goods and chattels of the plaintiff, to be held and disposed of as on a writ of execution.

History

Source.

V.S. 1947, § 1969. P.L. § 1917. G.L. § 2106. P.S. § 1835. V.S. § 1480. R.L. § 1240. G.S. 35, § 24. R.S. 30, § 25.

§ 5338. When judgment for plaintiff is given.

When it appears upon the default of the defendant, or upon trial in the action of replevin, that the goods were unlawfully taken or attached or unlawfully detained by the defendant, the plaintiff shall have judgment for his or her damages caused thereby, and his or her costs.

History

Source.

V.S. 1947, § 1970. P.L. § 1918. G.L. § 2107. P.S. § 1836. V.S. § 1481. R.L. § 1241. G.S. 35, § 22. R.S. 30, § 23.

ANNOTATIONS

Damages.

Verdict in replevin that defendant is guilty and judgment thereon, without mention of damages or costs, establishes plaintiff’s right of possession, defendant’s wrongful taking and detention and, by consequence, plaintiff’s right to at least nominal damages; and clerk is justified in issuing an execution for such damages and costs, and if damages be omitted, execution will not for that reason be set aside on audita querela. Starkey v. Waite, 69 Vt. 193, 37 A. 292 (1896), same case 68 Vt. 181, 34 A. 692.

Subchapter 4. Procedure in Replevin of Beasts, Goods, and Chattels

§ 5371. Writs; court to which returnable.

Writ of replevin in actions under the provisions of sections 5321 and 5331 of this title shall issue out of the court to which returnable. If the value of the property to be replevied is $5,000.00 or less, the writ may be returnable to any court; if the value of the property exceeds $5,000.00, the writ shall be returnable to a Superior Court.

HISTORY: Amended 1959, No. 142 , § 5, eff. Feb. 1, 1960; 1965, No. 194 , § 7, eff. July 1, 1965, operative Feb. 1, 1967; 1971, No. 185 (Adj. Sess.), § 165, eff. March 29, 1972; 1973, No. 249 (Adj. Sess.), § 39, eff. April 9, 1974.

History

Source.

V.S. 1947, § 1971. P.L. § 1919. G.L. § 2108. 1917, No. 254 , § 2071. 1915, No. 91 , § 15. P.S. §§ 1817, 1825, 1826, 1841. 1898, No. 41 , § 1. V.S. §§ 1462, 1470, 1471, 1486. R.L. §§ 1222, 1230, 1231, 1246. G.S. 31, § 19. G.S. 35, §§ 5, 13, 14. 1853, No. 8 , §§ 1, 2. R.S. 30, §§ 6, 14, 15.

Revision note—

Reference to “county court” was changed to “superior court” pursuant to 1973, No. 193 (Adj. Sess.), § 3. See note under 4 V.S.A. § 71 .

Amendments

—1973 (Adj. Sess.). Section amended generally.

—1971 (Adj. Sess.). Section amended generally.

—1965. Substituted “district court” for “municipal court” and increased the maximum jurisdiction requiring transfer to the county court from $100 to $2,500.

—1959. Deleted proviso relating to return to municipal court, “provided there is such a court within the county, otherwise to the county court.”

Effective date of amendments—

1965. See note set out under 4 V.S.A. § 421a .

CROSS REFERENCES

Issuance of writ, see V.R.C.P. 64(b).

ANNOTATIONS

Appeals.

Action of replevin, brought before a justice of the peace, is appealable when the ad damnum in the writ is $20, and the value of the property, as shown by the return, is $8. Andrews v. Baker, 59 Vt. 656, 10 A. 465, 1887 Vt. LEXIS 144 (1887).

Where appeal to county court was dismissed because property was appraised at only $6, although the ad damnum was for $20, the dismissal was improper because the matter in demand was not only the property itself, but also the damages for its taking and detention. Fisk v. Wallace, 51 Vt. 418, 1879 Vt. LEXIS 97 (1879).

Construction with other laws.

In action of replevin to recover possession of property taken on execution issued on judgment against third person, where proposed amendment sought to perfect a suit under provisions of § 5331 of this title and writ was signed by master in chancery, the process was void and not amendable under the provisions of this section. Ramsey v. McDonald, 108 Vt. 180, 184 A. 691, 1936 Vt. LEXIS 171 (1936).

—Issuance.

When assistant judge of county court does act in his county which should be done by him as justice of the peace, and he signs as assistant judge of county court, it will be considered, he being ex officio justice of the peace, that he acts as justice of the peace in so doing. Russell v. Lund, 114 Vt. 16, 39 A.2d 337, 1944 Vt. LEXIS 79 (1944).

Provision of this section that writs of replevin commenced under § 5331 of this title to recover possession of property unlawfully taken or detained shall be issued by a justice of the peace or out of a municipal court is mandatory and master in chancery has no authority to sign such writs. Ramsey v. McDonald, 108 Vt. 180, 184 A. 691, 1936 Vt. LEXIS 171 (1936).

Pleading.

In action of replevin in municipal court, rule III of such court, providing that defendant shall plead, answer, or demur within five days after time for entering appearance has expired, was applicable to motion to dismiss, as latter must be regarded in nature of plea in abatement. Murphy v. Punt, 107 Vt. 421, 180 A. 886, 1935 Vt. LEXIS 193 (1935).

Return.

Officer’s return should show that property replevied was appraised, and that the officer delivered to defendant a true and attested copy of writ, with his return endorsed thereon, and for either defect writ will be dismissed on motion; but these defects may be amended on motion, notwithstanding motion for that purpose is not made until after decision is announced upon motion to dismiss. Bent v. Bent, 43 Vt. 42 (1870), same case 44 Vt. 633.

Service.

A writ of replevin being a writ of summons, not of attachment, service upon defendant must conform to provisions of statute as to service of writs of summons and delivery of copy to agent of defendant, the latter being out of State, is not sufficient. Gaffield v. Avery, 43 Vt. 668, 1871 Vt. LEXIS 73 (1871).

Value of goods.

Where statement in officer’s return showed that ascertained value of replevied property was $80, court found that examination of proposed amendment to officer’s return and inspection of bond very obviously showed that this was a mistake, in that it stated amount for which bond was taken instead of agreed value of property, and that no one could have been misled or harmed thereby. Murphy v. Punt, 107 Vt. 421, 180 A. 886, 1935 Vt. LEXIS 193 (1935).

In replevin for goods unlawfully taken or detained, jurisdictional value of goods is to be determined by certificate of officer serving writ. Widber v. Benjamin, 75 Vt. 152, 53 A. 1071, 1903 Vt. LEXIS 106 (1903).

Waiver of defects.

Where in action of replevin commenced under § 5331 of this title, motion to dismiss writ because of noncompliance with requirements of this section and § 5372 of this title and as not in accordance with form prescribed, was not filed for nearly three months after expiration of time allowed for filing pleas of dilatory nature, right to take advantage of the irregularity was waived. Shapiro v. Reed, 98 Vt. 76, 126 A. 496, 1924 Vt. LEXIS 136 (1924); Shapiro v. Whitman, 98 Vt. 81, 126 A. 497, 1924 Vt. LEXIS 137 (1924); Murphy v. Punt, 107 Vt. 421, 180 A. 886, 1935 Vt. LEXIS 193 (1935).

§ 5372. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 5372. Former § 5372, relating to time and place of appearance, was derived from V.S. 1947, § 1972; P.L. § 1920; G.L. § 2109; 1917, No. 254 , § 2072. Such section is now covered by V.R.C.P. 64(b)-(d), (f); D.C.C.R. 64.

§ 5373. Bond.

The writ in an action of replevin commenced under the provisions of section 5321 or 5331 of this title shall not be issued until the plaintiff or someone in his or her behalf executes and delivers to the officer a bond to the defendant, with sufficient surety to be approved by the court, in a penalty double the value of the property to be replevied, with condition to prosecute the action to final judgment and pay such damages and costs as the defendant recovers against him or her, and also to return the property if that is the final judgment.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 166, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1973. P.L. § 1921. G.L. § 2110. P.S. §§ 1814, 1827. V.S. §§ 1459, 1472. R.L. §§ 1219, 1232. 1870, No. 65 . G.S. 35, §§ 2, 15. R.S. 30, §§ 3, 16. R. 1797, p. 368, § 5.

Amendments

—1971 (Adj. Sess.). Rephrased and omitted reference to replevin.

ANNOTATIONS

Amount of bond.

In action to replevy goods alleged to be unlawfully taken or detained, if bond given to the officer for defendant upon service of writ does not contain penalty in a definite sum, but merely states it as “double the value of the goods to be replevied” in suit in question, action will be dismissed upon a motion made at proper stage of case. Bennett, White & Co. v. Allen, 30 Vt. 684, 1858 Vt. LEXIS 97 (1858).

Construction with other laws.

Replevin of liquor seized on complaint and warrant as intoxicating, is of that class of replevin provided for in § 5331 of this title and a bond like that required in replevin by a defendant, of goods attached on mesne process, is not proper in such cases. H.K. Thurber & Co. v. Richmond, 46 Vt. 395, 1874 Vt. LEXIS 11 (1874).

—Generally.

Bond required in replevin of “goods attached,” providing that it is to become obligatory when plaintiff’s attachment shall be adjudicated, is a mere nullity in a case where there has been no attachment. Driscoll v. Place, 44 Vt. 252, 1872 Vt. LEXIS 12 (1872); Campbell v. Morey, 27 Vt. 575, 1855 Vt. LEXIS 73 (1855).

Costs.

No recognizance for costs is required in a replevin writ. Russell v. Lund, 114 Vt. 16, 39 A.2d 337, 1944 Vt. LEXIS 79 (1944).

Evidence.

When, in an action against officer for assault upon plaintiff’s wife, defendant attempts to justify under a writ of replevin against the plaintiff, the return thereon is prima facie evidence in favor of defendant, but it is open to contradiction by plaintiff upon the question whether officer delivered property to plaintiff in the replevin suit before taking the bond required by this section. McKinstry v. Collins, 76 Vt. 221, 56 A. 985 (1903), same case 74 Vt. 147, 52 A. 438.

Interest.

As against a surety, interest on the penalty cannot be included. Miltimore v. Bottom, 66 Vt. 168, 28 A. 872, 1894 Vt. LEXIS 81 (1894).

Liability of officer.

Defendant in replevin suit cannot maintain action against officer for not taking sufficient bond, if he has impaired value of bond to officer, as by discharging a surety, for officer is entitled to benefit of bond. Follett v. Shumway, 68 Vt. 68, 33 A. 1067, 1895 Vt. LEXIS 15 (1895).

Officer has immunity for acts done in the execution of legal process, but where court has no jurisdiction over the subject matter, the process gives no protection to the officer executing it. Driscoll v. Place, 44 Vt. 252, 1872 Vt. LEXIS 12 (1872).

Officer who serves replevin writ in behalf of defendant to recover possession of property attached is bound to take sureties on replevin bond who are at time actually responsible for its amount; it not being enough that they are, at time bond is taken, in good credit and apparently responsible; but he is not liable if, being actually responsible when taken, they cease to be so before bond is put in suit. Bank of Middlebury v. Rutland, 33 Vt. 414, 1860 Vt. LEXIS 117 (1860).

—Generally.

In suit on replevin bond conditioned to pay damages and costs recovered in replevin suit, and for return of property, the only damages recoverable are those assessed in the replevin suit. Miltimore v. Bottom, 66 Vt. 168, 28 A. 872, 1894 Vt. LEXIS 81 (1894).

If defendant has failed to return property replevied in accordance with judgment in replevin suit, plaintiff may also recover damages for that breach of condition of the bond. Miltimore v. Bottom, 66 Vt. 168, 28 A. 872, 1894 Vt. LEXIS 81 (1894).

If evidence clearly tends to show that damages of plaintiff are in excess of penalty of bond, and defendant waives right to go to jury, court may direct a verdict for plaintiff for the penalty. Miltimore v. Bottom, 66 Vt. 168, 28 A. 872, 1894 Vt. LEXIS 81 (1894).

Partial bonds.

When replevin bond is conditioned for return of only part of the property, suit should be dismissed as to that for which no bond was given, and plaintiff cannot remedy his mistake by filing a new bond. Eastman v. Barnes, 58 Vt. 329, 1 A. 569, 1885 Vt. LEXIS 4 (1885).

Return of replevied property.

It is error for county court to render judgment for return of property replevied in an action of which it has no jurisdiction. Widber v. Benjamin, 75 Vt. 152, 53 A. 1071, 1903 Vt. LEXIS 106 (1903).

Where replevin action was dismissed for improper venue, court nevertheless had power to order property returned to defendant without any proof of his right of ownership, and plaintiff had no right to contest this order on the ground that he owned the property involved. Collamer v. Page, 35 Vt. 387, 1862 Vt. LEXIS 54 (1862).

Sureties.

There is no distinction as to number of sureties required in different classes of replevin suits; one surety in addition to plaintiff, or someone in his behalf, being sufficient in any case. Bent v. Bent, 43 Vt. 42 (1870), same case 44 Vt. 633.

Time of taking bond.

Officer may commence service of replevin writ by taking possession of property, for purposes of appraisal, before taking bond required under this section and delivering property to plaintiff. Hill v. Scott, 101 Vt. 356, 143 A. 276 (1928), overruled on other grounds, Duchaine v. Zaetz (1945) 114 Vt. 274, 44 A.2d 165; McKinstry v. Collins, 76 Vt. 221, 56 A. 985 (1903), same case 74 Vt. 147, 52 A. 438.

Where officer justifies under writ of replevin against plaintiff, and it is claimed by plaintiff that the officer delivered the property to the plaintiff in replevin suit before taking the bond required by this section, the law presumes the contrary, and it is error for court to refuse to so instruct the jury. McKinstry v. Collins, 76 Vt. 221, 56 A. 985 (1903), same case 74 Vt. 147, 52 A. 438.

Waiver of irregularities.

Where writ did not require officer to take bond conditioned for return of property, as well as for prosecution of replevin to effect and payment of costs and damages, and bond returned was signed by plaintiffs only, these irregularities did not make proceedings so void that court had no jurisdiction of parties and of subject matter of suit, and that defendant waived them by omitting to take advantage thereof within the time limited for filing dilatory pleas, and, also, by pleading to merits. Tripp v. Howe, 45 Vt. 523, 1873 Vt. LEXIS 51 (1873); Wilder v. Stafford, 30 Vt. 399, 1858 Vt. LEXIS 50 (1858).

§§ 5374, 5375. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 5374, 5375. Former §§ 5374, 5375 related to procedure to determine value and return of bond.

Such sections are now covered by V.R.C.P. 64(b), (d).

Former § 5374 was derived from V.S. 1947, § 1974; P.L. § 1922; G.L. § 2111; P.S. §§ 1815, 1827; V.S. §§ 1460, 1472; R.L. §§ 1229, 1232; 1870, No. 65 ; G.S. 35, §§ 3, 15; R.S. 30, §§ 4, 16; R. 1797, p. 368, § 5.

Former § 5375 was derived from V.S. 1947, § 1975; P.L. § 1923; G.L. § 2112; 1917, No. 254 , § 2075; P.S. §§ 1816, 1827; V.S. §§ 1461, 1472; R.L. §§ 1221, 1232; 1870, No. 65 ; G.S. 35, §§ 4, 15; R.S. 30, §§ 5, 16.

Subchapter 5. Miscellaneous Provisions

§ 5401. Orders and judgment of court.

Upon the abatement, dismissal, nonsuit, default, or trial of an action of replevin, the court shall make such order for the return or restoration of the goods as is just, and may take such inquest of damages in the premises as the rights of the parties require, and render judgment thereon accordingly. When such replevin terminates otherwise than upon the merits, such court may make such special order as to the return or restoration of the goods or as to damages, and may require such security in the premises, from either party, as is just.

History

Source.

V.S. 1947, § 1976. P.L. § 1924. G.L. § 2113. P.S. § 1837. V.S. § 1482. R.L. § 1242. G.S. 35, § 26.

ANNOTATIONS

Judgment.

Judgment order under this section should determine the rights of the parties on the primary statutory issues. Patch v. Lathrop, 116 Vt. 151, 70 A.2d 605, 1950 Vt. LEXIS 124 (1950).

It is for the court to make such order and render such judgment in respect to a return as the facts found require, and when a verdict of not guilty does not involve a finding of the requisite facts, they may well be found specially by the jury. James Smith Woolen Mach. Co. v. Holden, 73 Vt. 396, 51 A. 2, 1901 Vt. LEXIS 200 (1901).

Return of property.

Where goods are held under a replevin action which has been dismissed, they must be returned to owner as a matter of right. Crosby v. Cook, 122 Vt. 175, 167 A.2d 87, 1961 Vt. LEXIS 53 (1961).

Order for return of property involved was justified under provisions of this section, since one haled into court on a void writ of replevin should be restored to the advantage which the possession of the disputed property gave him. Ramsey v. McDonald, 108 Vt. 180, 184 A. 691, 1936 Vt. LEXIS 171 (1936).

Verdict of not guilty determines that there was no unlawful detention by defendant of the goods replevied, but does not necessarily determine question of their return, that depending upon right of possession. James Smith Woolen Mach. Co. v. Holden, 73 Vt. 396, 51 A. 2, 1901 Vt. LEXIS 200 (1901).

In replevin for liquor seized where action was dismissed for want of proper replevin bond, defendant was entitled to a judgment for a return of the property, with damages for the taking thereof by the replevin, and to an order that the replevying officer return the property to the defendant, at the place whence he took it. H.K. Thurber & Co. v. Richmond, 46 Vt. 395, 1874 Vt. LEXIS 11 (1874).

Verdict.

Where articles replevied were one safe, two hogs, and thirty-four gross bottles and verdict was, “that the defendant is not guilty in manner and form, as the plaintiff in his declaration hath alleged and for the return to the defendant of two hogs and thirty-four gross bottles, named in the writ, and to recover of plaintiff one cent damages, and his costs,” the first paragraph of the verdict was all that was necessary under the general issue, and the court should adapt the judgment to the rights proved. Hotchkiss v. Ashley, 44 Vt. 195, 1872 Vt. LEXIS 4 (1872).

§ 5402. Sums received by creditor, how applied.

Sums received by the creditor from the sale of goods attached or taken in execution and afterward returned and sums received for the value of such goods not returned and sums recovered from the officer for the insufficiency of the sureties in the bond, shall be applied toward the discharge of the judgment recovered by the creditor. Sums received as interest or damages for the delay of his or her execution shall be retained to his or her own use, and shall not go in discharge of the judgment further than to discharge the interest on the same for the time for which interest was received.

History

Source.

V.S. 1947, § 1977. P.L. § 1925. G.L. § 2114. P.S. § 1833. V.S. § 1478. R.L. § 1238. G.S. 35, § 21. R.S. 30, § 22.

§ 5403. Remedy on bond not affected.

The foregoing provisions shall not preclude the defendant from resorting to his or her remedy on the replevin bond or to his or her remedy against the officer for the insufficiency of the sureties in the bond, to recover the value of the goods, with the loss or damage caused by the replevin or nondelivery thereof, notwithstanding he or she has endeavored to recover the same by the writs of return and reprisal.

History

Source.

V.S. 1947, § 1978. P.L. § 1926. G.L. § 2115. P.S. § 1838. V.S. § 1483. R.L. § 1243. G.S. 35, § 27. R.S. 30, § 27.

§ 5404. Action against surety limited.

An action shall not be maintained against a surety in a replevin bond unless the writ is served on the surety within one year after final judgment in the action of replevin.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 167, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1979. P.L. § 1927. G.L. § 2116. P.S. § 1839. V.S. § 1484. R.L. § 1244. G.S. 35, § 28. R.S. 30, § 28.

Amendments

—1971 (Adj. Sess.). Section amended generally.

§ 5405. Direction and service of writ.

A writ of replevin shall not be directed to or served by a person other than an officer authorized by law to serve the same.

History

Source.

V.S. 1947, § 1980. P.L. § 1928. G.L. § 2117. P.S. § 1840. V.S. § 1485. R.L. § 1245. G.S. 35, § 29. R.S. 30, § 29.

ANNOTATIONS

Direction of writ.

Failure to insert in writ that it is directed to any sheriff or constable in the State is a defect of form only, and a motion to amend by inserting these words should be granted. Russell v. Lund, 114 Vt. 16, 39 A.2d 337, 1944 Vt. LEXIS 79 (1944).

Chapter 184. Loss of Consortium

§ 5431. Loss of consortium.

An action for loss of consortium may be brought by either spouse.

HISTORY: Added 1977, No. 43 .

CROSS REFERENCES

Abolishment of cause of action for alienation of affections, see 15 V.S.A. § 1001 .

ANNOTATIONS

Common law.

Vermont opinion, followed twice without reexamination, holding a man could bring loss of consortium action at common law but rejecting the claim that a woman could, on ground that since the law recognized no corresponding right in children there was no reason to extend the availability of the action beyond the boundaries of an “outworn common-law cause of action” merely for the sake of consistency unless some distinctive characteristic of the wife’s status is shown to distinguish it from others, showed Supreme Court has heretofore declined to recognize a woman’s right of action for loss of consortium at common law, but has not foreclosed such recognition. Whitney v. Fisher, 138 Vt. 468, 417 A.2d 934, 1980 Vt. LEXIS 1270 (1980).

Substantial established principle, precedent and policy compelled Supreme Court to reconsider common law Vermont rule that men, but not women, could bring a loss of consortium action, and since the action is for the remedy of injuries sustained by one who has been deprived of affection, aid and cooperation in conjugal relations, society and support, it is difficult to find any non-arbitrary distinction between the interests of the man and woman in their mutual society, and if there is a distinction it is wholly irrelevant to availability of a right of action against those who interfere with that society, as the society requires the mutual participation of both spouses; as no state of facts may reasonably be conceived to justify the rule denying a woman an action for loss of consortium while allowing a man to bring such an action, the action would be allowed woman in instant case, and prior cases supporting the rule denying a woman the action would be overruled. Whitney v. Fisher, 138 Vt. 468, 417 A.2d 934, 1980 Vt. LEXIS 1270 (1980).

Retroactivity.

This section created a substantive right and was not retroactive where 1 V.S.A. § 213 withheld retroactivity from all statutes save those relating to practice in court, competency of witnesses and amendment of process or pleading. Whitney v. Fisher, 138 Vt. 468, 417 A.2d 934, 1980 Vt. LEXIS 1270 (1980).

Status of claimant.

A spouse may bring a loss of consortium claim under this section only if the claimant was legally married to the injured party when the injury occurred. Harris v. Sherman, 167 Vt. 613, 708 A.2d 1348, 1998 Vt. LEXIS 55 (1998) (mem.).

Cited.

Cited in Hay v. Medical Center Hospital of Vermont, 145 Vt. 533, 496 A.2d 939, 1985 Vt. LEXIS 335 (1985); Derosia v. Book Press, Inc., 148 Vt. 217, 531 A.2d 905, 1987 Vt. LEXIS 477 (1987); Brennen v. Mogul Corp., 151 Vt. 91, 557 A.2d 870, 1988 Vt. LEXIS 237 (1988); Lorrain v. Ryan, 160 Vt. 202, 628 A.2d 543, 1993 Vt. LEXIS 44 (1993).

Law Reviews —

For note, “Expanding Loss of Consortium in Vermont: Developing a New Doctrine,” see 12 Vt. L. Rev. 157 (1987).

Chapter 185. Set-off

§§ 5461-5478. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 5461-5478. Former §§ 5461-5478 related to set-off.

Such sections are now covered by V.R.C.P. 2, 7(a), 8(a), 13, 17(a), 20(a), 41(a)(2), 42(a), (b), 54(c).

Former § 5461 was derived from V.S. 1947, § 1645; P.L. § 1605; G.L. § 1806; P.S. § 1507; V.S. § 1156; R.L. § 915; G.S. 39, § 1; R.S. 34, § 1; 1818, p. 75; R. 1797, p. 120, § 92; R. 1797, p. 419, § 12; 1789, p. 11; 1788, p. 7.

Former § 5462 was derived from V.S. 1947, § 1646; P.L. § 1606; G.L. § 1807; P.S. § 1508; V.S. § 1159; R.L. § 916; G.S. 39, § 14; R.S. 34, § 12; R. 1797, p. 122, § 94; R. 1797, p. 420, § 13; 1789, p. 12; 1788, p. 7.

Former § 5463 was derived from V.S. 1947, § 1647; P.L. § 1607; G.L. § 1808; P.S. § 1509; V.S. § 1158; R.L. § 917; G.S. 39, § 7.

Former § 5464 was derived from V.S. 1948, § 1648; P.L. § 1608; G.L. § 1809; P.S. § 1510; V.S. § 1159; R.L. § 918; G.S. 39, § 5; R.S. 34, § 4; R. 1797, p. 120, § 92; R. 1797, p. 419, § 12; 1789, p. 11; 1788, p. 7.

Former § 5465 was derived from V.S. 1947, § 1649; P.L. § 1609; G.L. § 1810; P.S. § 1511; V.S. § 1160; R.L. § 919; G.S. 39, § 6.

Former § 5466 was derived from V.S. 1947, § 1650; P.L. § 1610; G.L. § 1811; P.S. § 1512; V.S. § 1161; R.L. § 920; G.S. 39, § 4.

Former § 5467 was derived from V.S. 1947, § 1651; P.L. § 1611; G.L. § 1812; 1908, No. 62 ; P.S. § 1513; V.S. § 1162; R.L. § 921; G.S. 39, § 17; R.S. 34, § 14; R. 1797, p. 419, § 12; 1789, p. 11.

Former § 5468 was derived from V.S. 1947, § 1652; P.L. § 1612; G.L. § 1813; P.S. § 1514; V.S. § 1163; R.L. § 922; G.S. 39, § 2; R.S. 34, § 2; R. 1797, p. 120, § 92; 1788, p. 7.

Former § 5469 was derived from V.S. 1947, § 1653; P.L. § 1613; G.L. § 1814; 1917, No. 254 , § 1778; P.S. § 1515; V.S. § 1164; R.L. § 923; G.S. 39, § 3; R.S. 34, § 3; R. 1797, p. 120, § 92; 1788, p. 7.

Former § 5470 was derived from V.S. 1947, § 1654; P.L. § 1614; G.L. § 1815; P.S. § 1516; V.S. § 1165; R.L. § 924; G.S. 39, § 16; R.S. 34, § 13.

Former § 5471 was derived from V.S. 1947, § 1655; P.L. § 1615; G.L. § 1816; 1915, No. 91 , § 17; P.S. § 1517; V.S. § 1166; R.L. § 925; G.S. 39, § 9; R.S. 34, § 6.

Former § 5472 was derived from V.S. 1947, § 1656; P.L. § 1616; G.L. § 1817; P.S. § 1518; V.S. § 1167; R.L. § 926; G.S. 39, § 15.

Former § 5473 was derived from V.S. 1947, § 1657; P.L. § 1617; G.L. § 1818; P.S. § 1519; V.S. § 1168; R.L. § 927; G.S. 39, § 8; R.S. 34, § 5.

Former § 5474 was derived from V.S. 1947, § 1658; P.L. § 1618; G.L. § 1819; 1917, No. 254 , § 1783; P.S. § 1520; V.S. § 1169; R.L. § 928; G.S. 39, § 10; R.S. 34, § 8; R. 1797, p. 121, § 93.

Former § 5475 was derived from V.S. 1947, § 1659; P.L. § 1619; G.L. § 1820; P.S. § 1521; V.S. § 1170; R.L. § 929; G.S. 39, § 11; R.S. 34, § 9; R. 1797, p. 121, § 93.

Former § 5476 was derived from V.S. 1947, § 1660; P.L. § 1620; G.L. § 1821; P.S. § 1522; V.S. § 1171; R.L. § 930; G.S. 39, § 12; R.S. 34, § 10; R. 1797, p. 121, § 93.

Former § 5477 was derived from V.S. 1947, § 1661; P.L. § 1621; G.L. § 1822; P.S. § 1523; V.S. § 1172; R.L. § 931; G.S. 39, § 13; R.S. 34, § 11; R. 1797, p. 121, § 93.

Former § 5478 was derived from V.S. 1947, § 1662; P.L. § 1622; G.L. § 1823; P.S. § 1524; V.S. § 1173; R.L. § 932; G.S. 39, § 18.

Chapter 187. Small Claims Procedure

History

Claims commission. 1997 (Adj. Sess.), No. 156, which abolishes the claims commission, provides in § 49: “Notwithstanding 32 V.S.A. § 932 , any person who, at the time of passage of this act [April 29, 1998], has a claim pending before the claims commission or appeal pending before the legislature may, within six months from the passage of this act, refile the claim or matter being appealed as a small claims procedure in accordance with the provisions of chapter 187 of Title 12.”

CROSS REFERENCES

Claims against the State, see 32 V.S.A. § 932 .

§ 5531. Rules governing procedure.

  1. The Supreme Court, pursuant to section 1 of this title, shall make rules under this chapter applicable to such Court providing for a simple, informal, and inexpensive procedure for the determination, according to the rules of substantive law, of actions of a civil nature of which they have jurisdiction, other than actions for slander or libel and in which the plaintiff does not claim as debt or damage more than $5,000.00. Small claims proceedings shall be limited in accord with this chapter and the procedures made available under those rules. The procedure shall not be exclusive, but shall be alternative to the formal procedure begun by the filing of a complaint.
  2. Parties may not request claims for relief other than money damages under this chapter. Nor may parties split a claim in excess of $5,000.00 into two or more claims under this chapter.
  3. In small claims actions where the plaintiff makes a claim for relief greater than $3,500.00, the defendant shall have the right to request a special assignment of a judicial officer. Upon making this request, a Superior judge or a member of the Vermont bar appointed pursuant to 4 V.S.A. § 22(b) shall be assigned to hear the action.
  4. Venue in small claims actions shall be governed by section 402 of this title.

HISTORY: Amended 1965, No. 194 , § 8, eff. July 1, 1965, operative Feb. 1, 1967; 1967, No. 65 ; 1967, No. 311 (Adj. Sess.), § 2, eff. March 22, 1968; 1971, No. 44 , § 1; 1973, No. 249 (Adj. Sess.), § 40, eff. April 9, 1974; 1977, No. 161 (Adj. Sess.), § 1; 1983, No. 208 (Adj. Sess.), § 2; 1993, No. 160 (Adj. Sess.), § 1; 1995, No. 181 (Adj. Sess.), § 2, eff. Sept. 1, 1996; 2007, No. 39 , § 3; 2009, No. 154 (Adj. Sess.), § 83.

History

Source.

1953, No. 166 , § 1. V.S. 1947, § 1517. P.L. § 1481. 1933, No. 157 , § 1320. 1925, No. 43 , § 1.

Revision note

—2002. Substituted “of which it has jurisdiction” for “of which they have jurisdiction” to correct a printing error.

Amendments

—2009 (Adj. Sess.) Subsec. (c): Deleted “a district judge” following “superior judge” in the second sentence.

—2007. Subsec. (a): Substituted “$5,000.00” for “$3,500.00” at the end of the first sentence and added the present second sentence.

Subsecs. (b), (c): Added.

Subsec. (d): Redesignated former subsec. (b) as (d).

—1995 (Adj. Sess.) Subsec. (b): Substituted “section 402” for “section 405”.

—1993 (Adj. Sess.). Subsec. (a): Substituted “$3,500.00” for “$2,000.00” in the first sentence.

—1983 (Adj. Sess.). Subsec. (a): Substituted “the filing of a complaint” for “writ” following “by” in the second sentence and “$2,000.00” for “$500.00” following “than” in the first sentence and deleted “hereinafter called the procedure” following “procedure” in that sentence.

Subsec. (b): Deleted “of this title” following “section 405”.

—1977 (Adj. Sess.). Subsec. (a): Designated existing section as subsec. (a) and raised jurisdictional amount to $500.

Subsec. (b): Added.

—1973 (Adj. Sess.). Omitted provisions relating to designation of justices as trial justices.

—1971. Increased jurisdictional amount.

—1967 (Adj. Sess.). Amended to provide Supreme Court with rule making power.

—1967. Raised debt or damage limitation from $40.00 to $100.00.

—1965. Substituted “district courts” for “municipal courts”.

ANNOTATIONS

Concurrent jurisdiction.

Both the Superior Court and the District Court have subject matter jurisdiction over civil actions up to the jurisdictional amount of subsection (a) of this section; the variation between the two courts is the procedure available, actions in the Superior Court being governed by the “formal procedure” of the Vermont Rules of Civil Procedure, while actions in the District Court may be brought under the “simple, informal and inexpensive procedure” reflected in the District Court Civil Rules. Gerrish Corp. v. Dworkin, 145 Vt. 107, 483 A.2d 261, 1984 Vt. LEXIS 551 (1984).

Counterclaims.

The legislative mandate in subsection (a) of this section, requiring the Supreme Court to make rules providing for a simple, informal and inexpensive procedure for the determination of small claims cases, requires that, under D.C.C.R. 80.3, governing small claims procedures, D.C.C.R. 13, providing for filing of permissive counterclaims, is applicable only up to the jurisdictional limit of subsection (a) of this section. Gerrish Corp. v. Dworkin, 145 Vt. 107, 483 A.2d 261, 1984 Vt. LEXIS 551 (1984).

Jurisdiction.

Defendant in an abuse prevention proceeding who had stipulated to entry of a relief from abuse order against him that, among other things, required plaintiff to return his belongings, was entitled to bring an action for conversion of his personal property in small claims court. LaPlume v. Lavallee, 2004 VT 78, 177 Vt. 526, 858 A.2d 255, 2004 Vt. LEXIS 257 (2004) (mem.).

Pro se litigants.

Since litigants in small claims actions are encouraged to appear pro se, and a great majority of them are untrained in the law, the proceedings are to be as simple and untechnical as possible. Ferris-Prabhu v. Dave & Son, Inc., 142 Vt. 479, 457 A.2d 631, 1983 Vt. LEXIS 407 (1983).

The Supreme Court will not permit unfair imposition or unconscionable advantage to be taken of one who acts as his own attorney, especially in small claims actions where self-representation is encouraged. Ferris-Prabhu v. Dave & Son, Inc., 142 Vt. 479, 457 A.2d 631, 1983 Vt. LEXIS 407 (1983).

In a small claims action for breach of a construction contract, dismissed for failure to prove damages, in which plaintiff appeared pro se, where the court found defendant liable but failed to allow plaintiff to elaborate on the basis for his claimed damage figure, failed to advise plaintiff of the commonly used procedures for proving damages or to examine him in such a way as to facilitate proof, and did not explain the meaning of defense counsel’s repeated objections, plaintiff was so disadvantaged that the cause would be remanded for further hearing on plaintiff’s damage claim. Ferris-Prabhu v. Dave & Son, Inc., 142 Vt. 479, 457 A.2d 631, 1983 Vt. LEXIS 407 (1983).

Procedure required.

Notwithstanding the need for simplicity and informality in small claims proceedings, particularly in those cases where the parties or either of them appear pro se, form cannot be disregarded entirely. Brandon v. Richmond, 144 Vt. 496, 481 A.2d 16, 1984 Vt. LEXIS 605 (1984).

Purpose.

The purpose of Vermont’s small claims court is to provide a simple, informal and inexpensive procedure for determining civil actions where the amount in controversy is no more than $3500; hearings without juries are conducted in a summary manner, examination of witnesses is done primarily by the judge, the Rules of Evidence and many of the civil rules do not apply, and much of the hearing and prehearing procedure is intended to encourage appearance without lawyers by preventing unfair imposition on a pro se litigant. Cold Springs Farm Development, Inc. v. Ball, 163 Vt. 466, 661 A.2d 89, 1995 Vt. LEXIS 48 (1995).

Relief from judgment.

Where defendant, duly notified, failed to attend small claims hearing and judgment was entered for plaintiff, and defendant thereafter appealed to Supreme Court but did not appear personally and instead sent two letters stating his grounds for appeal as being (1) his inexperience and lack of a lawyer, (2) lack of help from the court, (3) the distance and inconvenience of getting to court, (4) that he did not have his day in court, and (5) possible prejudice on the part of the court, defendant demonstrated no legal or factual basis upon which relief could be granted. Raymond S. Roberts, Inc. v. Weiss, 132 Vt. 119, 315 A.2d 259, 1974 Vt. LEXIS 311 (1974).

Transfer of cases.

The purpose of small claims courts is to avoid complicated procedural rules, delays and expensive legal costs and to provide a simple, efficient, informal and inexpensive means for adjudicating disputes involving relatively small amounts of money, a purpose which would be frustrated if small claims were forced into Superior Court after the filing of permissive counterclaims demanding more than the jurisdictional limit of subsection (a) of this section; therefore, a small claims case may not be transferred from a District Court to a Superior Court. Gerrish Corp. v. Dworkin, 145 Vt. 107, 483 A.2d 261, 1984 Vt. LEXIS 551 (1984).

Cited.

Cited in Twin State Equip., Inc. v. Smith, 141 Vt. 214, 446 A.2d 794, 1982 Vt. LEXIS 502 (1982); Baker v. Titus, 142 Vt. 627, 458 A.2d 1125, 1983 Vt. LEXIS 444 (1983); Bartley-Cruz v. McLeod, 144 Vt. 263, 476 A.2d 534, 1984 Vt. LEXIS 460 (1984); Taylor v. Alfama, 145 Vt. 4, 481 A.2d 1059, 1984 Vt. LEXIS 532 (1984); Kopelman v. Schwag, 145 Vt. 212, 485 A.2d 1254, 1984 Vt. LEXIS 577 (1984).

Notes to Opinions

Execution and stay of judgment.

Execution may issue and a stay of entry of judgment is authorized by this chapter. 1938 Vt. Op. Att'y Gen. 507.

Jurisdiction of municipal courts.

Municipal courts have limited jurisdiction under this chapter. 1938 Vt. Op. Att'y Gen. 507.

Representation by counsel.

An attorney may act for a client under the procedure outlined in this chapter. 1938 Vt. Op. Att'y Gen. 507.

§ 5532. Pleadings; fees.

Procedure in the Superior Court shall be instituted without writ or pleading other than a concise statement on a form provided by the clerk who shall file the complaint in a docket kept for that purpose.

HISTORY: Amended 1965, No. 194 , § 8, eff. July 1, 1965, operative Feb. 1, 1967; 1967, No. 119 , § 2; 1971, No. 44 , § 2; 1973, No. 249 (Adj. Sess.), § 41, eff. April 9, 1974; 1975, No. 227 (Adj. Sess.), § 2; 1977, No. 161 (Adj. Sess.), § 2; 1985, No. 54 , § 5; 1995, No. 181 (Adj. Sess.), § 3, eff. Sept. 1, 1996.

History

Source.

V.S. 1947, § 1518. P.L. § 1482. 1933, No. 157 , § 1321. 1927, No. 44 . 1925, No. 43 , § 2.

Amendments

—1995 (Adj. Sess.) Section amended generally.

—1985. Deleted the last sentence.

—1977 (Adj. Sess.). Amended the second sentence generally which provided for payment of a $10 fee to the court which shall cover all costs pertaining thereto.

—1975 (Adj. Sess.). Omitted references to justice of the peace and increased fees.

—1973 (Adj. Sess.). Omitted references to justice of the peace and last sentence relating to retention of one-half of entry fee by justice.

—1971. Provided for different fees based on amount involved.

—1967. Substituted phrase “Procedure in the district court” for “Such procedure”; increased fee and substituted “a fee of $5.00, which shall cover entry, trial and judgment” for “an entry fee of $2.00”.

—1965. Substituted “district court” for “municipal court” and rephrased language in last sentence eliminating provision for retention of any part of fee by a judge.

ANNOTATIONS

Cited.

Cited in Bartley-Cruz v. McLeod, 144 Vt. 263, 476 A.2d 534, 1984 Vt. LEXIS 460 (1984).

§ 5533. Other procedure.

  1. The plaintiff shall supply to the clerk the following information:
    1. the plaintiff’s name, residence address, and telephone number;
    2. defendant’s name and place of residence, place of business or employment; and
    3. the nature and amount of the plaintiff’s claim, giving dates and other relevant information.
  2. The clerk shall reduce the information required in subsection (a) of this section to writing in concise, nontechnical form in a docket kept for that purpose, and shall also place it on a form which shall be attached to the summons.
  3. The defendant may include with his or her answer a counterclaim stating a claim which arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim and which does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.  The relief requested in the counterclaim may exceed the jurisdictional limit of the small claims court, however the judgment shall not exceed that limit.  Failure to assert a counterclaim does not prevent the defendant from bringing a later action for the same claim. The judgment of the small claims court on an asserted counterclaim shall not be conclusive between the parties in a later action nor shall the parties be precluded from litigating any issue of fact or law as a result of the judgment on the counterclaim.  However, in any later action on the same claim as was raised in the counterclaim, the amount of any judgment shall be reduced by an amount equal to the jurisdictional limit of the small claims court at the time the counterclaim was first asserted.

HISTORY: Amended 1977, No. 161 (Adj. Sess.), § 3; 1983, No. 208 (Adj. Sess.), § 3.

History

Source.

V.S. 1947, § 1519. P.L. § 1483. 1933, No. 157 , § 1322. 1927, No. 44 . 1925, No. 43 , § 2.

Amendments

—1983 (Adj. Sess.). Subdiv. (a)(2): Deleted “or” preceding “place of business or employment” and added “and” thereafter.

Subdiv. (a)(3): Deleted “and” following “information”.

Subsec. (c): Added.

—1977 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Counterclaim.

Claim preclusion applies to compulsory counterclaims, not permissive ones, and since there are no compulsory counterclaims in small claims court, plaintiff’s breach of contract claim in Superior Court was not precluded by the small claims court action. Cold Springs Farm Development, Inc. v. Ball, 163 Vt. 466, 661 A.2d 89, 1995 Vt. LEXIS 48 (1995).

12 V.S.A. § 5533(c) , allowing defendants to bring counterclaims but only up to the jurisdictional limit of the small claims court and with the proviso that judgment of the small claims court on the asserted counterclaim will not be conclusive in a later action, expresses the Legislature’s policy choice that there be no collateral estoppel effect from the litigation of small claims counterclaims; if the court refused to follow this policy choice for claims in chief, an unfair inconsistency in the treatment of claims and counterclaims would arise. Cold Springs Farm Development, Inc. v. Ball, 163 Vt. 466, 661 A.2d 89, 1995 Vt. LEXIS 48 (1995).

Cited.

Cited in Bartley-Cruz v. McLeod, 144 Vt. 263, 476 A.2d 534, 1984 Vt. LEXIS 460 (1984).

§ 5534. Attachment; forms.

In causes begun under the procedure, on application, the court may issue, for cause shown, writs of attachment of property and trustee process as in other civil actions. Necessary dockets and forms shall be prepared at the expense of the State.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 168, eff. March 29, 1972.

History

Source.

V.S. 1947, § 1520. P.L. § 1484. 1933, No. 157 , § 1323. 1927, No. 44 . 1925, No. 43 , § 2.

Amendments

—1971 (Adj. Sess.). Rephrased, omitted reference to body attachment and substituted “other civil actions” for “causes begun by writ”.

ANNOTATIONS

Cited.

Cited in Bartley-Cruz v. McLeod, 144 Vt. 263, 476 A.2d 534, 1984 Vt. LEXIS 460 (1984).

§ 5535. Jury trial.

A plaintiff beginning a cause under the procedure waives a jury trial. The defendant may have a hearing before the court under the procedure. He or she may, prior to the day upon which he or she is notified to appear, file with the court where the cause is pending a request for a trial by jury and his or her affidavit that there are questions of fact in the cause requiring trial, with specifications thereof, and that such is intended in good faith, together with a jury fee of $10.00 and thereupon at the day set for hearing, trial by jury shall be had as in ordinary cases.

HISTORY: Amended 1975, No. 227 (Adj. Sess.), § 3; 1977, No. 161 (Adj. Sess.), § 4.

History

Source.

1953, No. 166 , § 2. V.S. 1947, § 1521. P.L. § 1485. 1933, No. 157 , § 1324. 1925, No. 43 , § 3.

Amendments

—1977 (Adj. Sess.). Increased jury fee from “$8” to “$10.00”.

—1975 (Adj. Sess.). Increased jury fee from “$4” to “$8”.

CROSS REFERENCES

Claims against State decided without jury, see 32 V.S.A. § 933 .

ANNOTATIONS

Cited.

Cited in Bartley-Cruz v. McLeod, 144 Vt. 263, 476 A.2d 534, 1984 Vt. LEXIS 460 (1984).

§ 5536. Representation.

Any person, corporation, or other legal entity shall be entitled but not required to be represented by an attorney in small claims court.

HISTORY: Added 1977, No. 161 (Adj. Sess.), § 5.

ANNOTATIONS

Cited.

Cited in Ferris-Prabhu v. Dave & Son, Inc., 142 Vt. 479, 457 A.2d 631, 1983 Vt. LEXIS 407 (1983); Bartley-Cruz v. McLeod, 144 Vt. 263, 476 A.2d 534, 1984 Vt. LEXIS 460 (1984); Brandon v. Richmond, 144 Vt. 496, 481 A.2d 16, 1984 Vt. LEXIS 605 (1984).

§ 5537. Payment of judgments.

  1. On request of a judgment creditor whose judgment under this chapter has remained unsatisfied for 30 days, the court shall order the judgment debtor to appear before it and to disclose information relating to his or her ability to pay the judgment in full.
  2. Following disclosure under subsection (a) of this section, the court after hearing may order the judgment debtor to make such payments as the court, in its discretion, deems appropriate. Failure to make such payments may be considered civil contempt of court.
  3. [Repealed.]

HISTORY: Added 1983, No. 208 (Adj. Sess.), § 1; amended 2007, No. 39 , § 5.

History

Revision note—

Deleted “Weekly” preceding “Payment” in section catchline to conform catchline to subject matter of section.

Amendments

—2007. Subsec. (c): Deleted.

ANNOTATIONS

Contempt power.

Small claims court’s use of contempt power was premature and based on an insufficient foundation, where court failed to establish that defendant had any reachable assets not jointly owned, and court’s finding that defendant had present ability to pay was therefore unsupported by the evidence and clearly erroneous. Hale v. Peddle, 160 Vt. 621, 627 A.2d 860, 648 A.2d 830, 1993 Vt. LEXIS 158 (1993) (mem.).

Cited.

Cited in Hale v. Peddle, 156 Vt. 275, 590 A.2d 899, 1991 Vt. LEXIS 61 (1991).

§ 5538. Appeals.

Any party may appeal from a small claims judgment to Superior Court. The Administrative Judge shall assign the appeal to a Superior judge who shall not have participated in any way in the decision being appealed. The appeal shall be heard and decided, based on the record made in the small claims procedure. No appeal as of right exists to the Supreme Court. On motion made to the Supreme Court by a party to the action, the Supreme Court may allow an appeal from the Superior Court.

HISTORY: Added 1983, No. 208 (Adj. Sess.), § 4; amended 1995, No. 181 (Adj. Sess.), § 4, eff. Sept. 1, 1996; 2009, No. 154 (Adj. Sess.), § 84.

History

Amendments

—2009 (Adj. Sess.) Deleted “district or” preceding “superior judge” in the first sentence, and substituted “procedure” for “court” following “small claims” in the second sentence.

—1995 (Adj. Sess.) Deleted “the” preceding “superior” in the first sentence and added the second sentence.

ANNOTATIONS

Application.

Appeals from small claims judgments lie in Superior Court. Hale v. Peddle, 156 Vt. 275, 590 A.2d 899, 1991 Vt. LEXIS 61 (1991).

Contempt order.

Contempt order issued during the course of a small claims proceeding was a small claims judgment, appealable to the Superior Court. Hale v. Peddle, 156 Vt. 275, 590 A.2d 899, 1991 Vt. LEXIS 61 (1991).

§ 5539. Repealed. 1991, No. 93, § 16b.

History

Former § 5539. Former § 5539, relating to jurisdiction over small claims, was derived from 1991, No. 93 , § 16b, and was repealed on Jan. 31, 1994, by its own terms.

§ 5540. Repealed. 2007, No. 51, § 10.

History

Former § 5540. Former § 5540, relating to the jurisdiction over of assistant judges over small claims in Essex, Caledonia, Rutland, and Bennington Counties, was derived from 1993, No. 237 (Adj. Sess.), § 9 and amended by 1997, No. 121 (Adj. Sess.), § 31 and 2005, No. 167 (Adj. Sess.), § 7.

§ 5540a. Jurisdiction over small claims; assistant judges.

    1. Subject to the limitations in this section and notwithstanding any provision of law to the contrary, assistant judges of Essex, Caledonia, Rutland, and Bennington Counties sitting alone shall hear and decide small claims actions filed under this chapter with the Essex, Caledonia, Rutland, and Bennington Superior Courts. (a) (1) Subject to the limitations in this section and notwithstanding any provision of law to the contrary, assistant judges of Essex, Caledonia, Rutland, and Bennington Counties sitting alone shall hear and decide small claims actions filed under this chapter with the Essex, Caledonia, Rutland, and Bennington Superior Courts.
    2. [Repealed.]
  1. With the exception of assistant judges authorized to preside in small claims matters prior to June 16, 2001 who have successfully completed the testing requirements established herein, an assistant judge hearing cases under this section shall have completed at least 100 hours of relevant training and testing, and observed 20 hours of small claims hearings in accordance with the protocol for said training and observation which shall be established by the Court Administrator in consultation with the Association of Assistant Judges. An assistant judge who hears cases under this section shall annually complete 16 hours of continuing education, established by the Court Administrator in consultation with the Association of Assistant Judges, relating to jurisdiction exercised under this section and shall file a certificate to such effect with the Court Administrator. Law clerk assistance available to Superior judges shall be available to the assistant judges.
  2. A decision of an assistant judge shall be entered as a small claims judgment and may be appealed pursuant to section 5538 of this title. The appeal shall be decided by the presiding judge.
  3. An assistant judge upon successful completion of the training under subsection (b) of this section, shall cause the Superior Court clerk to notify the Court Administrator of the assistant judge’s successful completion of training. Upon receipt of such notification, small claims cases which require a hearing shall first be set for hearing before an assistant judge in the Superior Court in the county and shall be heard by the assistant judge. If the assistant judge is unavailable due to illness, vacation, administrative leave, disability, or disqualification, the Administrative Judge pursuant to 4 V.S.A. §  22 may assign a judge, or appoint and assign a member of the Vermont bar to serve temporarily as an acting judge, to hear small claims cases in the county. No action filed or pending shall be heard at or transferred to any other location unless agreed to by the parties. If both assistant judges of the county elect to successfully complete training to hear these matters, the senior assistant judge shall make the assignment of cases to be heard by each assistant judge. The assistant judges, once qualified to preside in these matters, shall work with the Court Administrator’s office and the Administrative Judge such that the scheduling of small claims cases before the assistant judges are at such times as to permit adequate current court personnel to be available when these cases are heard.
  4. Subdivision (a)(2) of this section shall be repealed effective on January 31, 2011.

HISTORY: Added 1995, No. 181 (Adj. Sess.), § 5, eff. Sept. 1, 1996; amended 1997, No. 121 (Adj. Sess.), § 32; 2001, No. 70 , § 2, eff. June 16, 2001; 2003, No. 58 , § 1, eff. June 5, 2003; 2005, No. 71 , § 96a; 2005, No. 167 (Adj. Sess.), § 8, eff. May 20, 2006; 2007, No. 51 , § 11; 2009, No. 154 (Adj. Sess.), § 84a; 2015, No. 58 , § E.204.12.

History

Revision note

—2016. In subsec. (b), in the first sentence, substituted “June 16, 2001” for “the effective date of this act” consistent with the effective date of 2001, No. 70 , § 2 and in accordance with V.S.A. style.

Amendments

—2015. Subdiv. (a)(1): Deleted “This subdivision shall apply only to Assistant Judges holding office on July 1, 2010” at the end of the subdiv.

—2009 (Adj. Sess.) Added the last sentence in subdiv. (a)(1), rewrote subsec. (b), and substituted “January 31, 2011” for “July 1, 2012” in subsec. (e).

—2007. Deleted “Addison, Chittenden, Franklin, Grand Isle, Lamoille, Orange, Orleans, Washington, Windham, and Windsor counties” from the catchline.

Subsec. (a): Added subdiv. (1) and redesignated former undesignated paragraph as subdiv. (2).

Subsec. (b): Added “and shall file a certificate to such effect with the court administrator” at the end of the second sentence.

Subsec. (d): Substituted “the county” for “Addison, Chittenden, Franklin, Grand Isle, Lamoille, Orange, Orleans, Washington, Windham, and Windsor counties” at the end of the third sentence.

Subsec. (e): Substituted “Subdivision (a)(2) of this section” for “This” and “July 1, 2012” for “July 1, 2008”.

—2005 (Adj. Sess.). Deleted “Bennington” following “Addison” wherever it appeared throughout the section, made a minor change in punctuation in subsecs. (a) and (d), and added the second sentence in subsec. (b).

—2005. Subsec. (e): Act 71 extended the repeal year from “2005” to “2008.”

—2003. Subsec. (e): Act No. 58 extended the repeal year from “2003” to “2005” and deleted the second sentence.

—2001. Subsec. (b): Amended generally.

Subsec. (e): Substituted “July 1, 2003” and “January 15, 2002” for “July 1, 2001” and “January 15, 2001” respectively.

—1997 (Adj. Sess.). Substituted “Addison, Bennington, Chittenden, Franklin, Grand Isle, Lamoille, Orange, Orleans, Washington, Windham and Windsor” for “Caledonia and Rutland” in the catchline and in subsecs. (a) and (d); substituted “appropriate” for “Caledonia and Rutland” in subsec. (a); in subsec. (b) substituted “60” for “40” and added the phrase beginning with “and observed” and ending “of the state” in the first sentence and inserted “on a per capita basis of those judges electing to take the training” and substituted “county” for “supreme court” in the second sentence; added the last sentence in subsec. (d); and in subsec. (e) substituted “2001” for “1998” twice.

§ 5541. Composition of court in small claims cases.

For the purposes of this chapter, the Superior Court in small claims cases shall consist of the presiding judge sitting alone, an assistant judge sitting alone pursuant to section 5540 of this chapter, or an acting judge assigned pursuant to 4 V.S.A. § 22(b) .

HISTORY: Added 1995, No. 181 (Adj. Sess.), § 6, eff. Sept. 1, 1996; amended 2009, No. 154 (Adj. Sess.), § 85.

History

Amendments

—2009 (Adj. Sess.) Deleted “small claims” preceding “court” and added “in small claims cases” in the section catchline, and inserted “in small claims cases” following “superior court” and made a stylistic change in the text of the section.

Chapter 189. Tort Claims Against the State

ANNOTATIONS

Generally.

This chapter is merely a procedural remedy and does not create any substantive cause of action against the state. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 622 A.2d 495, 1993 Vt. LEXIS 14 (1993).

§ 5601. Liability of State.

  1. The State of Vermont shall be liable for injury to persons or property or loss of life caused by the negligent or wrongful act or omission of an employee of the State while acting within the scope of employment, under the same circumstances, in the same manner, and to the same extent as a private person would be liable to the claimant except that the claimant shall not have the right to levy execution on any property of the State to satisfy any judgment.  The Superior Courts of the State shall have exclusive jurisdiction of any actions brought hereunder.
  2. Effective July 1, 2011, the maximum liability of the State under this section shall be $500,000.00 to any one person and the maximum aggregate liability shall be $2,000,000.00 to all persons arising out of each occurrence.
  3. If the claimant is not a resident of the State of Vermont, the claimant may bring suit in any Superior Court.  The agent for the service of process shall be the Attorney General or the Attorney General’s duly authorized representative.
  4. This chapter does not allow any insurance carrier to bring action or recover against the State for any payments made as a result of any private insurance contract between the carrier and a State employee.
  5. This section shall not apply to:
    1. Any claim based upon an act or omission of an employee of the State exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid, or based upon the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a State agency or an employee of the State, whether or not the discretion involved is abused.
    2. Any claim arising in respect to the assessment or collection of any tax or customs duty, or the levy upon or detention of any goods or merchandise by any law enforcement officer.
    3. Any claim for damages caused by the impositions of a quarantine by the State.
    4. Any claim for damages caused by the fiscal operations of any State officer or department.
    5. Any claim arising out of activities of the National Guard performed pursuant to 32 U.S.C. § 316, 502, 503, 504, 505, or 709, or pursuant to 20 V.S.A. §§ 366 , 601, and 602.
    6. Any claim arising out of alleged assault, battery, abuse of process, misrepresentation, deceit, fraud, or interference with contractual rights.
    7. Any claim for which a remedy is provided or which is governed specifically by other statutory enactment.
    8. Any claim arising from the selection of or purposeful deviation from a particular set of standards for the planning and design of highways.
  6. The limitations in subsection (e) of this section do not apply to claims against the State of Vermont to the extent that there exists coverage under a policy of liability insurance purchased by the Secretary of Administration.
  7. Nothing in this chapter waives the rights of the State under the Eleventh Amendment of the U.S. Constitution.
  8. [Repealed.]

HISTORY: Added 1961, No. 265 , § 1, eff. Oct. 1, 1961; amended 1963, No. 215 , § 1; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1989, No. 114 , § 1, eff. June 20, 1989; 1989, No. 114 , § 11(b); 1989, No. 163 (Adj. Sess.), § 2; 1995, No. 60 , § 41a, eff. April 25, 1995; 1995, No. 148 (Adj. Sess.), § 4(c)(2), eff. May 6, 1996; 1999, No. 138 (Adj. Sess.), § 3; 1999, No. 152 (Adj. Sess.), § 280; 2009, No. 33 , § 83(f); 2011, No. 40 , § 36; 2021, No. 74 , § E.103.

History

Amendments

—2021. Subsec. (f): Substituted “Secretary of Administration” for “Commissioner of Buildings and General Services”.

—2011. Subsec. (b): Deleted the former first sentence; substituted “2011” for “1990” following “July 1,” “$500.000.00” for “$250,000.00” and “$2,000,000.00” for “$1,000,000.00”.

—2009. Subsec. (h): Repealed.

—1999 (Adj. Sess.). Subdiv. (e)(5): Act No. 138 deleted “the combatant” preceding “activities” and substituted “National Guard performed pursuant to 32 United States Code, §§ 316, 502, 503, 504, 505 or 709, or pursuant to 20 V.S.A. §§ 366 , 601 and 602” for “National Guard during time of war”.

Subsec. (h): Added by Act No. 152.

—1995 (Adj. Sess.) Subsec. (f): Substituted “commissioner of buildings and general services” for “commissioner of general services”.

—1995. Subdiv. (e)(8): Added.

—1989 (Adj. Sess.) Subdiv. (e)(6): Deleted “false imprisonment, false arrest, malicious prosecution” preceding “abuse of process” and “libel, slander” thereafter, inserted “or” preceding “interference” and deleted “or invasion of the right to privacy” following “rights”.

—1989. Act No. 114, § 1 amended the section generally.

Act No. 114, § 11(b) repealed subsec. (b).

—1973 (Adj. Sess.). Subsecs. (a) and (c): Substituted “superior” for “county” preceding “court”.

—1963. Added provision exempting state property from execution and provision relating to nonresident claimants and added sentence prohibiting insurance carrier from bringing subrogation action.

Repeal of 1989, No. 114 (Adj. Sess.), § 11(b) amendment. 1993, No. 38 , § 1, eff. June 3, 1993, repealed 1989, No. 114 (Adj. Sess.), § 11(b), which provided for the repeal of subsec. (b) of this section effective on March 1, 1994.

CROSS REFERENCES

Liability insurance, waiver of sovereign immunity by purchase of, see 29 V.S.A. §§ 1403 , 1404, and 1406.

ANNOTATIONS

Assault and battery exception.

Inmate’s complaint against a prison guard alleged that he committed “common law assault and battery,” actions for which the State retained sovereign immunity pursuant to the clear limitations on liability in Vermont’s Tort Claims Act. Heffernan v. State, 2018 VT 47, 207 Vt. 340, 187 A.3d 1149, 2018 Vt. LEXIS 41 (2018).

Claims against State employees.

Plaintiff’s claim against the State for intentional infliction of emotional distress, premised on the allegation that an investigator for the Department of Aging and Disabilities acted outrageously by intentionally or recklessly disregarding her duty under 33 V.S.A. § 6906(c) , was analogous to suits against private parties, and therefore could proceed. Czechorowski v. State, 2005 VT 40, 178 Vt. 524, 872 A.2d 883, 2005 Vt. LEXIS 72 (2005) (mem.).

Department of Social and Rehabilitation Services (SRS) had a duty to protect plaintiffs, child abuse victims who reported abuse, from continued abuse, and because their suit was analogous to tort suits against private persons, it was not barred by subsection (a). Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1995 Vt. LEXIS 107 (1995).

This section has no application to claims brought against State officers and employees. Libercent v. Aldrich, 149 Vt. 76, 539 A.2d 981, 1987 Vt. LEXIS 588 (1987).

Construction with other law.

Private child placement agencies have a duty to report any suspected or alleged incident of child abuse or neglect that gives rise to an action against an agency where a plaintiff establishes the factual elements of negligence; consequently, there exists pursuant to this chapter a comparable cause of action where a complaint alleges negligence against a State agency in placing children in foster homes. LaShay v. Department of Social & Rehabilitation Services, 160 Vt. 60, 625 A.2d 224, 1993 Vt. LEXIS 25 (1993).

Governmental liability under this chapter may arise only if a plaintiff’s cause of action is comparable to a cause of action against a private citizen and the allegations, taken as true, will satisfy the necessary elements of that comparable State cause of action. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 622 A.2d 495, 1993 Vt. LEXIS 14 (1993).

Discretionary function exception.

Plaintiffs’ negligent-undertaking and negligent misrepresentation claims against the State were not barred by sovereign immunity. Their claims were based on common-law theories of negligence that were equally applicable to government employees and private individuals, and the discretionary-function exception of the Vermont Tort Claims Act did not apply because once the State committed to reviews, monitoring, and auditing of projects, its alleged failure to conduct such functions was a ministerial failure—a failure to follow a specifically dictated course of action. Sutton v. Vt. Reg'l Ctr., 2019 VT 71A, 212 Vt. —, 238 A.3d 608, 2019 Vt. LEXIS 127 (Oct. 4, 2019).

With regard to its investigation of the sexual exploitation of plaintiff inmate by a corrections officer, the Department of Corrections (DOC) had not waived sovereign immunity under the discretionary function exception. The DOC was not required to adopt investigation procedures and it was speculative whether its failure to do so would have prevented plaintiff’s sexual exploitation, when plaintiff himself subverted the investigation through his actions and untruthful denials; furthermore, DOC’s failure to separate plaintiff and the officer during the investigation was part of DOC’s exercise of judgment. Ingerson v. Pallito, 2019 VT 40, 210 Vt. 341, 214 A.3d 824, 2019 Vt. LEXIS 82 (2019).

Department of Corrections (DOC) had not waived sovereign immunity under the discretionary function exception in connection with its decision to reposition a surveillance camera and with its interpretation of the employment contract of a corrections officer who sexually exploited plaintiff, because in the absence of any clear instructions requiring DOC to take either action, the actions were discretionary. Furthermore, whether a change in the camera’s position would have prevented the misconduct was speculative, as was whether a different interpretation of the contract would have led DOC to separate the officer and plaintiff. Ingerson v. Pallito, 2019 VT 40, 210 Vt. 341, 214 A.3d 824, 2019 Vt. LEXIS 82 (2019).

Discretionary function exception to the Vermont Tort Claims Act applied to the investigation by the Department of Corrections (DOC) of a correctional officer’s sexual exploitation of plaintiff inmate, as there were no definitive ministerial standards in place at that time to guide DOC’s investigation, which it did conduct, and its decisions involved matters of public policy. Ingerson v. Pallito, 2019 VT 40, 210 Vt. 341, 214 A.3d 824, 2019 Vt. LEXIS 82 (2019).

When troopers performed a “welfare check” on an elderly decedent, the discretionary activity at issue was to apply the information given the officers to search the right house, and there was no public policy analysis in this activity. Thus, the court could not conclude that the actions that were at the center of plaintiff’s claims were protected by the discretionary function exception to the waiver of sovereign immunity in the Vermont Tort Claims Act. Kennery v. State, 2011 VT 121, 191 Vt. 44, 38 A.3d 35, 2011 Vt. LEXIS 129 (2011).

Because child protection decisions made in response to allegations of abuse and for children in the custody of the Vermont Department of Social and Rehabilitation Services (SRS) met both prongs of the discretionary function exception test, they were protected by sovereign immunity from tort litigation against the child protection agency. The Superior Court was correct in granting summary judgment to SRS on claims involving the perpetrator’s sexual assaults on plaintiff after the first reported assault under the discretionary function exception to state tort liability. Earle v. State, 2006 VT 92, 180 Vt. 284, 910 A.2d 841, 2006 Vt. LEXIS 179 (2006).

With regard to plaintiff’s claims that the Vermont Department of Social and Rehabilitation Services (SRS) failed to protect him from abuse by his mother, the discretionary function exception applied and the superior court correctly granted summary judgment to SRS on that basis. Earle v. State, 2006 VT 92, 180 Vt. 284, 910 A.2d 841, 2006 Vt. LEXIS 179 (2006).

The purpose of the discretionary function exception is to assure that the courts do not invade the province of coordinate branches of government by passing judgment on legislative or administrative policy decisions through tort law. Earle v. State, 2006 VT 92, 180 Vt. 284, 910 A.2d 841, 2006 Vt. LEXIS 179 (2006).

A discretionary function is an act on the part of the State or a State employee that requires the exercise of judgment in its performance, or, in the alternative, a situation where there is no specifically dictated course of action for the employee to follow. Earle v. State, 2006 VT 92, 180 Vt. 284, 910 A.2d 841, 2006 Vt. LEXIS 179 (2006).

Under the test for determining whether a plaintiff’s claims are barred by the discretionary function exception to tort liability, a court must first determine whether the act or omission challenged by the plaintiff is one that involves an element of judgment or choice or whether a statute, regulation, or policy specifically prescribes a course of action for an employee to follow. If the court concludes that the act involves judgment or choice, it must then determine whether that judgment is one of the kind that the discretionary function exception was designed to shield. Earle v. State, 2006 VT 92, 180 Vt. 284, 910 A.2d 841, 2006 Vt. LEXIS 179 (2006).

It is presumed that when a government agent is authorized to exercise discretion, the agent’s acts are grounded in policy when exercising that discretion. Thus, to survive a motion for summary judgment, a plaintiff must allege facts sufficient to overcome the presumption that the discretion involved policy considerations. Earle v. State, 2006 VT 92, 180 Vt. 284, 910 A.2d 841, 2006 Vt. LEXIS 179 (2006).

Standard of the Manual on Uniform Traffic Control Devices for Streets and Highways which states that “[t]he control of road users through a temporary traffic control zone shall be an essential part of . . . maintenance operations” does not prescribe a specific course of action for Agency of Transportation employees to follow, but rather requires them to exercise “an element of judgment or choice” when selecting from competing temporary traffic controls. Johnson v. Agency of Transportation, 2006 VT 37, 180 Vt. 493, 904 A.2d 1060, 2006 Vt. LEXIS 92 (2006) (mem.).

The Manual on Uniform Traffic Control Devices for Streets (MUTCD) specifically authorizes Agency of Transportation employees to make decisions about what manner of temporary traffic control to use in a given situation. The regulatory framework of the MUTCD thus serves as the basis for infusing the choice of temporary traffic controls with policy considerations, such as worker safety and road user safety, and insulating the choice from liability—even if negligent—under the discretionary function exception. Johnson v. Agency of Transportation, 2006 VT 37, 180 Vt. 493, 904 A.2d 1060, 2006 Vt. LEXIS 92 (2006) (mem.).

The purpose of the discretionary function exception is to assure that courts do not invade the province of coordinate branches of government through judicial second guessing of legislative or administrative policy judgments. Estate of Gage v. State, 2005 VT 78, 178 Vt. 212, 882 A.2d 1157, 2005 Vt. LEXIS 169 (2005).

The two-part test for determining the applicability of the discretionary function exception first asks whether a statute, regulation, or policy specifically prescribes a course of action for the employee to follow. If so, the discretion requirement is not met. If, however, the acts involved are discretionary in nature, involving an element of judgment or choice, the first prong of the test is satisfied. Estate of Gage v. State, 2005 VT 78, 178 Vt. 212, 882 A.2d 1157, 2005 Vt. LEXIS 169 (2005).

Under the second prong of the two-part test for determining the applicability of the discretionary function exception, the court must decide whether the employee’s judgment involved considerations of public policy which the discretionary function exception was designed to protect. It is presumed that when a government agent is authorized to exercise discretion, the agent’s acts are grounded in policy when exercising that discretion. Thus, to survive a motion for summary judgment, plaintiff must allege facts sufficient to overcome the presumption that the discretion involved policy considerations. Estate of Gage v. State, 2005 VT 78, 178 Vt. 212, 882 A.2d 1157, 2005 Vt. LEXIS 169 (2005).

Evidence established not only that the State’s policy governing the removal of, or the placement of guardrails around, hazards such as a brook alongside a highway vested extensive discretion in its highway officials, but also that the determination involved precisely the kind of policy judgments—the weighing of risks, financial costs, and environmental and aesthetic impacts— that the discretionary-function exception was designed to protect. Estate of Gage v. State, 2005 VT 78, 178 Vt. 212, 882 A.2d 1157, 2005 Vt. LEXIS 169 (2005).

Although the physical removal of a beaver dam may represent a routine maintenance operation, the actual decision to do so represents a policy judgment based on experience and the weighing of multiple factors, including the likelihood of an errant vehicle reaching the hazard, financial cost, and environmental impact. This is precisely the kind of policy judgment that the discretionary-function exception was designed to protect from judicial second-guessing. Estate of Gage v. State, 2005 VT 78, 178 Vt. 212, 882 A.2d 1157, 2005 Vt. LEXIS 169 (2005).

Focusing on the cost of one isolated repair misapprehends the nature of the discretionary function exception, which looks to the general nature of the actions taken rather than the official’s subjective intent in any individual case. Estate of Gage v. State, 2005 VT 78, 178 Vt. 212, 882 A.2d 1157, 2005 Vt. LEXIS 169 (2005).

The purpose of the discretionary function exception is to assure that courts do not invade the province of coordinate branches of government by passing judgment on legislative or administrative policy decisions through tort law. Lane v. State, 174 Vt. 219, 811 A.2d 190, 2002 Vt. LEXIS 227 (2002).

Under the two-part test for determining whether plaintiff’s claim is barred under the discretionary function exception, the first prong examines whether the acts involved are discretionary in nature, involving an element of judgment or choice, then, if the court determines that the acts involved an element of judgment or choice, it must decide under the second prong whether that judgment is of the kind that the discretionary function exception was designed to shield. Lane v. State, 174 Vt. 219, 811 A.2d 190, 2002 Vt. LEXIS 227 (2002).

Since its purpose is to prevent courts from passing judgment on legislative or administrative policy decisions through tort law, the discretionary function exception protects only governmental actions and decisions based on considerations of public policy. Lane v. State, 174 Vt. 219, 811 A.2d 190, 2002 Vt. LEXIS 227 (2002).

When established governmental policy, as express or implied by statute, regulation, or agency guidelines, allows a government agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion. Lane v. State, 174 Vt. 219, 811 A.2d 190, 2002 Vt. LEXIS 227 (2002).

State’s decisions to pave highway with open graded pavement and how to best allocate employees and resources to combat severe winter weather conditions on such pavement were protected by statutory exceptions to waiver of immunity for discretionary functions and for highway planning and design. Lane v. State, 174 Vt. 219, 811 A.2d 190, 2002 Vt. LEXIS 227 (2002).

In an action claiming that the state was under a duty to maintain a sign warning of a nearby roadway intersection, the state was immune from liability under subdivision (e)(1) because the decision whether or not to erect a warning sign involved an element of judgment or choice, and was, therefore, a discretionary act. Searles v. Agency of Transportation, 171 Vt. 562, 762 A.2d 812, 2000 Vt. LEXIS 253 (2000) (mem.).

Duty of care.

Presence of a common law duty of care is sufficient to meet the requirements of the Vermont Tort Claims Act. Thus, the fact that no statute required the Vermont Department of Public Safety to undertake the responsibility of performing a “welfare check” did not mean that no duty of care existed to the decedent on whose welfare troopers checked. Kennery v. State, 2011 VT 121, 191 Vt. 44, 38 A.3d 35, 2011 Vt. LEXIS 129 (2011).

In a negligence case, the first question in applying the Vermont Tort Claims Act is whether the State owes the plaintiff a duty of care under the circumstances. Whether a duty of care exists is a question of law for the court. Earle v. State, 2006 VT 92, 180 Vt. 284, 910 A.2d 841, 2006 Vt. LEXIS 179 (2006).

In determining whether a governmental body has undertaken a duty of care towards a specific individual, as distinguished from its duty to the public at large, the court considers four factors: (1) whether an ordinance or statute sets forth mandatory acts for the protection of a particular class of persons; (2) whether the government has actual knowledge that particular persons within that class are in danger; (3) whether there has been reliance by those persons on the government’s representations or conduct; and (4) whether the government’s failure to use due care would increase the risk of harm beyond its present potential. Earle v. State, 2006 VT 92, 180 Vt. 284, 910 A.2d 841, 2006 Vt. LEXIS 179 (2006).

With regard to claims involving allegations that the Vermont Department of Social and Rehabilitation Services (SRS) was liable for a sexual assault on plaintiff because it placed the perpetrator-a child in its custody-in the home of plaintiff’s grandparents and failed to control him while he was there, because there was no allegation that SRS knew that the perpetrator was dangerous or presented a known risk of sexually assaulting a young child, it had no duty to plaintiff to avoid placing him in the grandparents’ home or to control him while he was there. Earle v. State, 2006 VT 92, 180 Vt. 284, 910 A.2d 841, 2006 Vt. LEXIS 179 (2006).

The licensing and inspection of day-care facilities are inherently governmental functions, the primary purpose of which is to enforce compliance with the law, not to render services to the facilities, which functions find no private analog or duty of care in the common law. Accordingly, under the Vermont Tort Claims Act plaintiffs’ action for the wrongful death of their son, who died when he became entangled in a curtain cord while in his crib at a licensed facility, was barred. Lafond v. Department of Social & Rehabilitation Servs., 167 Vt. 407, 708 A.2d 919, 1998 Vt. LEXIS 12 (1998).

In determining whether a governmental body has assumed a duty of care toward specified persons, above and beyond its duty to the public at large, Court considers four factors: (1) whether a statute sets forth mandatory acts for the protection of a particular class of persons; (2) whether the government has knowledge that particular persons within that class are in danger; (3) whether those persons have relied on the government’s representations or conduct; and (4) whether the government’s failure to use due care would increase the risk of harm beyond what it was at the time the government acted or failed to act. Johnson v. State, 165 Vt. 588, 682 A.2d 961, 1996 Vt. LEXIS 59 (1996) (mem.).

Under subsection (a), the State is immune from a tort suit claiming damages for injuries resulting from an allegedly negligent inspection of a private workplace pursuant to the Vermont Occupational Safety and Health Act, 21 V.S.A. §§ 201-264 , because a private analog does not exist for the State’s regulatory enforcement activities; when the State inspects a private business, it does so to police the employer’s compliance with the law and to punish those employers that have not complied with the law, not to render services to the employer by assuming the employer’s duty toward its employees. Andrew v. State, 165 Vt. 252, 682 A.2d 1387, 1996 Vt. LEXIS 71 (1996).

Vermont department of banking and insurance owed no duty of care to a corporation engaged in the issuance of bail bonds for failing to inform the corporation that the department had received complaints that an agent of the corporation had improperly converted funds that had been placed with the agent as collateral in bail bond transactions. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 622 A.2d 495, 1993 Vt. LEXIS 14 (1993).

Highway design exception.

For purposes of sovereign immunity, plaintiff had not shown that the Agency of Transportation intended to incorporate an American Association of State Highway Officials (AASHO) or other design standard for a highway shoulder that was different from the standard in the Vermont Roadway Design Manual. Nothing in the Manual required that the AASHO standards be followed in every instance, suggested that AASHO trumped state-specific standards in the Manual, or incorporated the specific AASHO standard concerning shoulder slopes on a superelevated roadway; furthermore, the State’s reliance on AASHO for guidance in developing its own state-specific standards did not support the contention that the State adopted AASHO in preference to those state-specific standards. Vanderbloom v. State, 2015 VT 103, 200 Vt. 150, 129 A.3d 665, 2015 Vt. LEXIS 88 (2015).

In regard to exception to the general waiver of immunity that protects the State from “[a]ny claim arising from the selection of or purposeful deviation from a particular set of standards for the planning and design of highways,” liability is preserved in circumstances where the state unintentionally failed to comply with chosen design standards. Lane v. State, 174 Vt. 219, 811 A.2d 190, 2002 Vt. LEXIS 227 (2002).

Decision of highway or state police officials to act if their evaluation of road conditions leads them to conclude that closing portions of the State’s highways for emergency reasons is necessary clearly involves an element of judgment or choice, and therefore is discretionary in nature. Lane v. State, 174 Vt. 219, 811 A.2d 190, 2002 Vt. LEXIS 227 (2002).

Plaintiff failed to allege facts to overcome the presumption that the decision to close a road due to inclement weather is a discretionary function that involves the kind of public policy judgment protected by the discretionary function exemption. Lane v. State, 174 Vt. 219, 811 A.2d 190, 2002 Vt. LEXIS 227 (2002).

Decision whether or not to erect a highway warning sign is a discretionary act protected by the discretionary immunity exception. Lane v. State, 174 Vt. 219, 811 A.2d 190, 2002 Vt. LEXIS 227 (2002).

Absent evidence that the State deemed a warning sign necessary but failed to erect one, or that the failure to erect a sign was not based on public policy considerations, the placement of signs is a discretionary function immune from suit. Lane v. State, 174 Vt. 219, 811 A.2d 190, 2002 Vt. LEXIS 227 (2002).

Plaintiff’s evidence of the State’s alleged negligence in failing to comply with Federal Highway Administration’s Manual on Uniform Traffic Control Devices (MUTCD) requirements, consisting of testimony of the operator of the car claiming to have no knowledge of posted warnings signs and the supervisor for the relevant district having no record of which direction the existing signs were facing on the day of the accident, did not raise any issue of material fact as to whether the State was negligent in failing to comply with MUTCD requirements. Lane v. State, 174 Vt. 219, 811 A.2d 190, 2002 Vt. LEXIS 227 (2002).

Inmates.

Inmate’s claim that the Vermont Department of Corrections (DOC) and its commissioner violated a statutory obligation to negotiate a contract for telephone services to inmates that provided for the lowest reasonable cost lacked merit as to his request for monetary damages, as the State did not waive its sovereign immunity because it was based upon the DOC’s performance of a discretionary function and there was no private analog. Wool v. Menard, 2018 VT 23, 207 Vt. 25, 185 A.3d 577, 2018 Vt. LEXIS 25 (2018).

The State’s obligation to protect inmate who committed suicide while incarcerated was analogous to that of a private institution with custody over a person at risk of suicide. Hebert v. State, 165 Vt. 557, 679 A.2d 887, 1996 Vt. LEXIS 54 (1996) (mem.).

Trial court properly concluded that sovereign immunity barred claim against the State where commissioner of department of motor vehicles and commissioner of department of corrections released prisoner on furlough and issued or failed to revoke his registration. Curran v. Marcille, 152 Vt. 247, 565 A.2d 1362, 1989 Vt. LEXIS 168 (1989).

Insurance.

The amendment to this chapter creating an insurance waiver provision does not apply where a suit does not fit within the basic coverage of the chapter. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 622 A.2d 495, 1993 Vt. LEXIS 14 (1993).

Under this chapter, the discretionary function exception protects the State from liability only to the extent that it is not covered under a policy of liability insurance purchased by the Commissioner of General Services. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 622 A.2d 495, 1993 Vt. LEXIS 14 (1993).

Municipal tort immunity.

The traditional governmental/proprietary distinction in municipal tort immunity law should not be replaced with the so-called private-analog test as now employed in state tort claims under 12 V.S.A. § 5601 . Because of the Legislature’s approval of the governmental/proprietary distinction and the complex policy issues involved, the abrogation and replacement of the distinction are matters for the Legislature, not the courts. Hillerby v. Town of Colchester, 167 Vt. 270, 706 A.2d 446, 1997 Vt. LEXIS 277 (1997).

No waiver of sovereign immunity.

Investors’ securities-fraud claim against the Vermont Agency of Commerce and Community Development (ACCD) was barred by sovereign immunity, and therefore the trial court did not err by dismissing the claim, because the gravamen of the investors’ claim was that ACCD made intentional misrepresentations, acted with deceit, and engaged in fraud, and the State had not waived its sovereign immunity with respect to such claims. Sutton v. Vt. Reg'l Ctr., 2019 VT 71, 2019 VT 71A, 212 Vt. 612, 238 A.3d 608, 2020 Vt. LEXIS 77, modified, (Vt. 2020).

Requirements for claim against State.

The waiver of immunity in the Vermont Tort Claims Act is limited to circumstances where there is a private analog for the theory of liability advanced by the plaintiff so as not to visit the government with novel and unprecedented liabilities. Earle v. State, 2006 VT 92, 180 Vt. 284, 910 A.2d 841, 2006 Vt. LEXIS 179 (2006).

In plaintiffs’ suit for personal injuries against the State claiming that it was liable for a trooper’s negligence, and that his negligence caused plaintiffs’ injuries, on its face, plaintiffs’ complaint satisfied the private analog required to hold the state liable for the trooper’s actions. Rochon v. State, 2004 VT 77, 177 Vt. 144, 862 A.2d 801, 2004 Vt. LEXIS 259 (2004).

To sustain a tort claim against the State, plaintiff must demonstrate that her claim is comparable to a recognized cause of action against a private person, and also plaintiff must establish that no exception to the State’s waiver of its immunity applies to her claim. Mellin v. Flood Brook Union School District, 173 Vt. 202, 790 A.2d 408, 2001 Vt. LEXIS 407 (2001).

In regard to plaintiff’s negligence claim against the State, because she presented no argument on how her claim was comparable to a recognized cause of action against a private person, her brief was wholly inadequate on the negligence issue because it omitted discussion of an essential element of her claim and, therefore there was no reason to disturb the trial court’s dismissal of her claim. Mellin v. Flood Brook Union School District, 173 Vt. 202, 790 A.2d 408, 2001 Vt. LEXIS 407 (2001).

Waiver of sovereign immunity.

State’s immunity was waived under the Vermont Tort Claims Act as to the investors’ negligence claim because it was based on the Vermont Agency of Commerce and Community Development’s (ACCD) promises and undertakings in connection with a generally, although not exclusively, private activity of operating a regional center. The claim was not excluded from the State’s waiver on the basis that it related to discretionary functions because once the ACCD had undertaken to compliance reviews of the project, conducting them was no longer a discretionary function. Sutton v. Vt. Reg'l Ctr., 2019 VT 71, 2019 VT 71A, 212 Vt. 612, 238 A.3d 608, 2020 Vt. LEXIS 77, modified, (Vt. 2020).

Plaintiffs’ securities-fraud claim against the State was barred by sovereign immunity. The State’s waiver of sovereign immunity in the Vermont Tort Claims Act expressly excluded any claim arising out of misrepresentation, deceit, fraud, or interference with contractual rights. Sutton v. Vt. Reg'l Ctr., 2019 VT 71A, 212 Vt. —, 238 A.3d 608, 2019 Vt. LEXIS 127 (Oct. 4, 2019).

State administrator of financial aid and loan programs, i.e., a New York state agency, was entitled to assert Eleventh Amendment immunity against the borrower’s common law negligence, willful negligence, and gross negligence claims because 12 V.S.A. § 5601(g) specifically preserved Eleventh Amendment immunity with respect to tort claims brought against the State. Similarly, the State of New York had not waived its Eleventh Amendment immunity from common law tort claims. Kozaczek v. New York Higher Educ. Servs. Corp., 2011 U.S. Dist. LEXIS 94466 (D. Vt. Aug. 23, 2011), aff'd, 503 Fed. Appx. 60, 2012 U.S. App. LEXIS 23831 (2d Cir. 2012).

Under the Vermont Tort Claims Act, the State has waived its immunity for injury to persons caused by the negligent act or omission of a State employee while acting within the scope of employment, subject to certain delineated exceptions. Estate of Gage v. State, 2005 VT 78, 178 Vt. 212, 882 A.2d 1157, 2005 Vt. LEXIS 169 (2005).

Judges’ motion to dismiss was granted because Vermont had not waived its sovereign immunity under 12 V.S.A. 5601(g), nor had Congress waived the sovereign immunity that protected the judges from plaintiff’s damages action or an action for retrospective relief brought against them in their official capacities. Haselton v. Amestoy, 2004 U.S. Dist. LEXIS 4525 (D. Vt. Mar. 16, 2004).

In an action arising from an investigation into illegal gaming tickets, plaintiff failed to establish any analogy between the regulation, investigation and enforcement of liquor and gambling laws and some act of a private individual that could give rise to a cause of action against the State. Amy's Enters. v. Sorrell, 174 Vt. 623, 817 A.2d 612, 2002 Vt. LEXIS 345 (2002) (mem.).

The State waives its immunity only to the extent a plaintiff’s cause of action is comparable to a recognized cause of action against a private person. Powers v. Office of Child Support, 173 Vt. 390, 795 A.2d 1259, 2002 Vt. LEXIS 56 (2002).

Under the “private analog” analysis, the Superior Court properly dismissed plaintiff’s action against the State, Office of Child Support, and individual named employees for failure to adequately represent her in seeking enforcement of child support orders against her ex-husband. Powers v. Office of Child Support, 173 Vt. 390, 795 A.2d 1259, 2002 Vt. LEXIS 56 (2002).

Because the duties of Office of Child Support are uniquely governmental with no private analog in Vermont’s common law, plaintiff’s suit against the State and its agency for failure to adequately represent her in seeking enforcement of child support orders was barred by sovereign immunity. Powers v. Office of Child Support, 173 Vt. 390, 795 A.2d 1259, 2002 Vt. LEXIS 56 (2002).

Even though the State and prosecutors enjoy absolute immunity from civil suits for pursuing criminal prosecutions, because plaintiff’s complaint stated multiple causes of action, including defamation, tortious interference with contract, civil rights violations, and negligent hiring and supervision, a more thorough analysis was required in light of the specific factual allegations to determine whether they fall within the scope of the immunity. Huminski v. Lavoie, 173 Vt. 517, 787 A.2d 489, 2001 Vt. LEXIS 288 (2001) (mem.).

Vermont Tort Claims Act did not immunize State from suit alleging that in designing highway it negligently failed to comply with a given set of design standards; whereas statute sheltered State from liability for all of its deliberate design decisions, it preserved liability in circumstances where State unintentionally failed to comply with chosen design standards. McMurphy v. State, 171 Vt. 9, 757 A.2d 1043, 2000 Vt. LEXIS 162 (2000).

State government generally remains protected by sovereign immunity with respect to governmental functions for which no private analog exists. Noble v. Office of Child Support, 168 Vt. 349, 721 A.2d 121, 1998 Vt. LEXIS 342 (1998).

Enforcement actions by Office of Child Support Services (OCS) were broadly discretionary and its duties uniquely governmental, and there was no private analog in common law relating to collection of debts by private collection agencies; accordingly, action against OCS alleging negligence in its enforcement of a child support order was barred by doctrine of sovereign immunity. Noble v. Office of Child Support, 168 Vt. 349, 721 A.2d 121, 1998 Vt. LEXIS 342 (1998).

Under the private analog analysis, the State waives its immunity only to the extent a plaintiff’s cause of action is comparable to a recognized cause of action against a private person. Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1995 Vt. LEXIS 107 (1995).

Where all claims against department of social and rehabilitation services relating to its placement of minor in foster home arose out of alleged assaults occurring at home, department waived defense of sovereign immunity to the extent of its liability insurance coverage. LaShay v. Department of Social & Rehabilitation Services, 160 Vt. 60, 625 A.2d 224, 1993 Vt. LEXIS 25 (1993).

Plaintiff ’s suit for wrongful death against the state for improper placement of warning signs on the highway is allowed under the waiver provision, 12 V.S.A. § 5601(a) , of the Vermont Tort Claims Act because the situation was comparable to situations where a private citizen may be sued, and therefore, a private analog does exist. Peters v. State, 161 Vt. 582, 636 A.2d 340, 1993 Vt. LEXIS 101 (1993) (mem.).

Cited.

Cited in Agency of Environmental Conservation v. Casella, 142 Vt. 503, 457 A.2d 633, 1983 Vt. LEXIS 408 (1983); Cronin v. State, 148 Vt. 252, 531 A.2d 929, 1987 Vt. LEXIS 475 (1987), Levinsky v. Diamond, 151 Vt. 178, 559 A.2d 1073, 1989 Vt. LEXIS 34 (1989); Shields v. Gerhart, 155 Vt. 141, 582 A.2d 153, 1990 Vt. LEXIS 175 (1990); Hudson v. Town of East Montpelier, 161 Vt. 168, 638 A.2d 561, 1993 Vt. LEXIS 133 (1993); Winfield v. State, 172 Vt. 591, 779 A.2d 649, 2001 Vt. LEXIS 181 (2001) (mem.).

Notes to Opinions

Assistant judges.

Section does not expand the waiver of sovereign immunity in regard to assistant judges’ duties in maintaining county property. 1962-64 Vt. Op. Att'y Gen. 471.

Inmates.

The State has not assumed liability for accidents caused by institutional inmates allowed to drive, and damages arising from an accident would not, as such, have as their legal cause the wrongful act of a State employee, except to the extent the employee exercises his discretion by allowing the inmate to drive. 1972 Vt. Op. Att'y Gen. 93.

§ 5602. Exclusive right of action.

  1. When the act or omission of an employee of the State acting within the scope of employment is believed to have caused damage to property, injury to persons, or death, the exclusive right of action shall lie against the State of Vermont; and no such action may be maintained against the employee or the estate of the employee.
  2. This section does not apply to gross negligence or willful misconduct.
  3. As used in this chapter, “employee” means any person defined as a State employee by 3 V.S.A. § 1101 .

HISTORY: Added 1961, No. 265 , § 2, eff. Oct. 1, 1961; amended 1989, No. 114 , § 2, eff. June 20, 1989.

History

Amendments

—1989. Section amended generally.

ANNOTATIONS

Claims against State employees.

Trial court did not err dismissing the investors’ negligence claims against the individual defendants, current or former employees of the State, because the investors did not appear to contend that they were acting outside the scope of their employment. Sutton v. Vt. Reg'l Ctr., 2019 VT 71, 2019 VT 71A, 212 Vt. 612, 238 A.3d 608, 2020 Vt. LEXIS 77, modified, (Vt. 2020).

In suits alleging injury caused by the acts or omissions of a State employee acting within the scope of their employment, the Vermont Code states that the exclusive right of action shall lie against the State of Vermont; and no such action may be maintained against the employee or the estate of the employee. As plaintiffs did not appear to contend that the individually named defendants were acting outside the scope of their employment, plaintiffs’ claims for negligence lay solely against the State. Sutton v. Vt. Reg'l Ctr., 2019 VT 71A, 212 Vt. —, 238 A.3d 608, 2019 Vt. LEXIS 127 (Oct. 4, 2019).

In the context of a former school superintendent’s State defamation and invasion of privacy claims, no reasonable jury could conclude from the undisputed facts that a State trooper’s actions amounted to willful misconduct or gross negligence; the defamation and invasion of privacy claims therefore could be brought exclusively against the State of Vermont. Tucker v. Decker, 683 Fed. Appx. 20, 2017 U.S. App. LEXIS 4589 (2d Cir. 2017).

Generally, claims based on the acts or omissions of an employee of the State acting within the scope of employment lie against the State, not against the individual employees who allegedly committed the harm; however, the Vermont Tort Claims Act allows claims to be brought against an employee for gross negligence or willful misconduct, even if the conduct occurred within the scope of employment. Amy's Enters. v. Sorrell, 174 Vt. 623, 817 A.2d 612, 2002 Vt. LEXIS 345 (2002) (mem.).

In an action against intermediate officials and liquor control inspectors arising from an investigation into illegal gaming tickets, by failing to assert facts sufficient to meet the requirements of this section, plaintiff failed to state a claim against individual defendant officials upon which a court could grant relief. Amy's Enters. v. Sorrell, 174 Vt. 623, 817 A.2d 612, 2002 Vt. LEXIS 345 (2002) (mem.).

The Tort Claims Act is an exclusive right of action, and claims based on the act or omission of an employee of the State acting within the scope of employment lie against the State of Vermont, not against the employee. Powers v. Office of Child Support, 173 Vt. 390, 795 A.2d 1259, 2002 Vt. LEXIS 56 (2002).

Because Vermont law creates no specific duty owed by Office of Child Support (OCS) to any particular person or group of persons, there was no duty owed to plaintiff as an individual by the employees of OCS for their work on behalf of the agency, and, therefore, plaintiff could not prove an action for simple or gross negligence against the employees. Powers v. Office of Child Support, 173 Vt. 390, 795 A.2d 1259, 2002 Vt. LEXIS 56 (2002).

Where plaintiff’s claims were premised on allegations of willful misconduct by State employees, this section did not bar the claims against the individual defendants. Huminski v. Lavoie, 173 Vt. 517, 787 A.2d 489, 2001 Vt. LEXIS 288 (2001) (mem.).

Private attorney who contracted with State Defender General to represent indigent defendants at State’s expense was not a State employee within meaning of statute, and he was thus amenable to civil malpractice liability. Reed v. Glynn, 168 Vt. 504, 724 A.2d 464, 1998 Vt. LEXIS 404 (1998).

Categorizing public defenders as State employees for the purposes of 12 V.S.A. § 5602 is not likely to exacerbate potential conflicts of interest, and given the generally scarce resources with which defenders’ offices operate, may actually promote a vigorous and independent defense. Bradshaw v. Joseph, 164 Vt. 154, 666 A.2d 1175, 1995 Vt. LEXIS 85 (1995).

Public defenders are State employees under Vermont law and are entitled to the same protection under 12 V.S.A. § 5602 as other State employees. Bradshaw v. Joseph, 164 Vt. 154, 666 A.2d 1175, 1995 Vt. LEXIS 85 (1995).

Sovereign immunity, as opposed to official immunity, is available only as to State itself, and does not extend to State employees. Levinsky v. Diamond, 151 Vt. 178, 559 A.2d 1073, 1989 Vt. LEXIS 34 (1989).

This section has no application to claims brought against State officers and employees. Libercent v. Aldrich, 149 Vt. 76, 539 A.2d 981, 1987 Vt. LEXIS 588 (1987).

Discretionary acts.

The determination of whether or not to prosecute or when to prosecute is a discretionary decision to which the defense of sovereign immunity applies. Agency of Environmental Conservation v. Casella, 142 Vt. 503, 457 A.2d 633, 1983 Vt. LEXIS 408 (1983).

Gross negligence or willful misconduct.

Two individual defendants were entitled to absolute immunity from the investors’ gross negligence claim because they were being used for alleged actions undertaken when they were Secretaries of the Vermont Agency of Commerce and Community Development and the actions at issue, failing to provide the promised oversight of the project in which the investors invested, fell within the general authority of their office. Sutton v. Vt. Reg'l Ctr., 2019 VT 71, 2019 VT 71A, 212 Vt. 612, 238 A.3d 608, 2020 Vt. LEXIS 77, modified, (Vt. 2020).

Former executive director of the Vermont Regional Center was entitled to qualified immunity from the investors’ gross negligence claim because the investors only alleged that he marketed and solicited investors for the projects, and failed to allege that he was not acting in the course of his employment, acting in good faith, and performing discretionary acts. Sutton v. Vt. Reg'l Ctr., 2019 VT 71, 2019 VT 71A, 212 Vt. 612, 238 A.3d 608, 2020 Vt. LEXIS 77, modified, (Vt. 2020).

It could not be determined that two former executive directors of the Vermont Regional Center (VRC) were entitled to qualified immunity from the investors’ gross negligence claim because the allegations that they made misrepresentations to investors about the financial oversight that the VRC provided over the projects, acted to protect the projects instead of the investors, and approved the projects to solicit more investors even after complaints were made alleging that the projects were misappropriating funds were sufficient to show that their conduct failed the good faith prong. Sutton v. Vt. Reg'l Ctr., 2019 VT 71, 2019 VT 71A, 212 Vt. 612, 238 A.3d 608, 2020 Vt. LEXIS 77, modified, (Vt. 2020).

When troopers performing a “welfare check” on an elderly decedent checked the wrong house, the determination of whether they were grossly negligent was for the jury. Under plaintiff’s version of the facts, the troopers made multiple errors in judgment in performing a straightforward task, and these errors arose in a context where the need for particular care was great; thus, reasonable minds could differ on what level of negligence to assign to the troopers’ conduct. Kennery v. State, 2011 VT 121, 191 Vt. 44, 38 A.3d 35, 2011 Vt. LEXIS 129 (2011).

Where plaintiff’s complaint against the Office of Child Support and individual employees alleged simple incompetence, inaccurate record keeping, and clerical errors, such claims did not rise to the level of gross negligence. Powers v. Office of Child Support, 173 Vt. 390, 795 A.2d 1259, 2002 Vt. LEXIS 56 (2002).

Although 12 V.S.A. § 5602 does protect state employees from suit under certain circumstances, the statute explicitly does not apply “to gross negligence or willful misconduct.” Defendant should have known that his arrest of plaintiff for statement made at a roadblock was unlawful. A jury could, therefore, have found that his decision to arrest plaintiff amounted to gross negligence or willful misconduct. Long v. L'Esperance, 166 Vt. 566, 701 A.2d 1048, 1997 Vt. LEXIS 179 (1997).

Insurance.

The 1982 amendment to 29 V.S.A. § 1403 , overruling Lomberg v. Crowley, 138 Vt. 420, 415 A.2d 1324 (1980), and allowing suits against the State to the extent the State purchased liability insurance, did not apply retroactively. Curran v. Marcille, 152 Vt. 247, 565 A.2d 1362, 1989 Vt. LEXIS 168 (1989).

Interference with contract rights.

Interference with a contract right, as that term is used in subdivision (6) of this section, encompasses advice not to enter a contract. Agency of Environmental Conservation v. Casella, 142 Vt. 503, 457 A.2d 633, 1983 Vt. LEXIS 408 (1983).

Where defendants’ claim for damages against the state for closing down their landfill mentioned interference by agents of the State with defendants’ potential customers to the point of advising some customer towns not to enter landfill agreements with defendants, it alleged interference with a contractual right, and since such an action was specifically exempted from the State’s waiver of sovereign immunity by subdivision (6) of this section, the trial court correctly dismissed the claim. Agency of Environmental Conservation v. Casella, 142 Vt. 503, 457 A.2d 633, 1983 Vt. LEXIS 408 (1983).

Remedy provided by other law.

A claim alleging injury incurred in the course of State employment would be barred by subdivision (7) of this section, if that claim were brought against the state, because a remedy is provided for such claims by 21 V.S.A. chapter 9, the workers’ compensation statutes. Libercent v. Aldrich, 149 Vt. 76, 539 A.2d 981, 1987 Vt. LEXIS 588 (1987).

Cited.

Cited in Cronin v. State, 148 Vt. 252, 531 A.2d 929, 1987 Vt. LEXIS 475 (1987), Shields v. Gerhart, 155 Vt. 141, 582 A.2d 153, 1990 Vt. LEXIS 175 (1990); Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 622 A.2d 495, 1993 Vt. LEXIS 14 (1993); LaShay v. Department of Social & Rehabilitation Services, 160 Vt. 60, 625 A.2d 224, 1993 Vt. LEXIS 25 (1993); Hudson v. Town of East Montpelier, 161 Vt. 168, 638 A.2d 561, 1993 Vt. LEXIS 133 (1993).

Notes to Opinions

Insurance.

The Governor, State Treasurer and Auditor of Accounts have discretionary power to purchase insurance protecting State employees from claims for assault, battery, false imprisonment, false arrest and the like and the purchase of such insurance operates to waive the immunity of the State up to the amount of the policy. 1962-64 Vt. Op. Att'y Gen. 291.

§ 5603. Settlement of claims.

  1. The Attorney General may consider, adjust, determine, and settle any claim for damages against the State of Vermont resulting from the acts or omissions of an employee as provided under 3 V.S.A. § 159 . If the State elects to self-insure the liability as defined in 12 V.S.A. § 5601 , the Attorney General shall consult with the Secretary of Administration prior to exercising his or her authority under this subsection.
  2. If the State of Vermont has undertaken the defense of a claim against a State employee as required by 3 V.S.A. § 1101 , the acceptance by the claimant of any award, compromise, or settlement shall be final and conclusive on the claimant and shall constitute a complete release of any claim against the State of Vermont and all of its employees.
  3. Notwithstanding the provisions of subsection (b) of this section, if the employee has purchased a policy of liability insurance which covers claims based on gross negligence or willful misconduct in the operation of a motor vehicle, the acceptance of an award, compromise, or settlement shall not bar a claim for gross negligence or willful misconduct covered by that policy.

HISTORY: Added 1961, No. 265 , § 3, eff. Oct. 1, 1961; amended 1963, No. 215 , § 2; 1989, No. 114 , § 3, eff. June 20, 1989; 1989, No. 163 (Adj. Sess.), § 3; 1995, No. 148 (Adj. Sess.), § 4(c)(2), eff. May 6, 1996; 2021, No. 74 , § E.103.1.

History

Revision note—

In the second sentence of subsec. (a), substituted “commissioner of general services and chief of administration” for “commissioner of general services” in light of Executive Order No. 4-91, which redesignated the position of Commissioner of Department of General Services as Commissioner of General Services and Chief of Administration. By its own terms, Executive Order No. 4-91 took effect on January 31, 1991, pursuant to 3 V.S.A. § 2002 . For the text of Executive Order No. 4-91, see 3 Appendix, chapter 1.

In the second sentence of subsec. (a), substituted “commissioner of general services” for “commissioner of general services and chief of administration” in light of Executive Order No. 01-93, which rescinded the redesignation of that position authorized by Executive Order No. 4-91. By its own terms, Executive Order No. 01-93 took effect on January 10, 1993. For the text of Executive Order No. 01-93, see 3 Appendix, chapter 1.

Amendments

—2021. Subsec. (a): Substituted “Secretary of Administration” for “Commissioner of Buildings and General Services” in the last sentence.

—1995 (Adj. Sess.) Subsec. (a): Substituted “commissioner of buildings and general services” for “commissioner of general services”.

—1989 (Adj. Sess.). Subsec. (a): Added the second sentence.

—1989. Section amended generally.

—1963. Substituted “under section 5601 of this title up to the amount of $500.00.” for “of that department.” and provided for settlement of claim if no action is pending.

CROSS REFERENCES

For powers of Attorney General, see 3 V.S.A. § 153 .

ANNOTATIONS

Cited.

Cited in Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 622 A.2d 495, 1993 Vt. LEXIS 14 (1993); Hillerby v. Town of Colchester, 167 Vt. 270, 706 A.2d 446, 1997 Vt. LEXIS 277 (1997).

§ 5604. Payment.

  1. Any award made or compromise or settlement against the State of Vermont agreed upon by the Attorney General shall be paid by the State Treasurer out of the appropriations of the department concerned.  In the event an award is made or a compromise or settlement is agreed upon as the result of the acts or omissions of a State employee not connected with or employed by any agency, such award shall be paid by the State Treasurer out of the Treasury, and the Emergency Board shall reimburse the State Treasurer therefor from time to time.
  2. If the State elects to self-insure for liability as defined in 12 V.S.A. § 5601 , any award, compromise, or settlement against the State of Vermont agreed to by the Attorney General shall be paid by the Treasurer from the liability self-insurance fund.
  3. To the extent that an award, settlement, or compromise is covered by a policy of liability insurance, payment will be governed by the terms of the policy.

HISTORY: Added 1961, No. 265 , § 4, eff. Oct. 1, 1961; amended 1989, No. 114 , § 4, eff. June 20, 1989; 1989, No. 163 (Adj. Sess.), § 4.

History

Amendments

—1989 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a), substituted “agency” for “department” preceding “such award” in the second sentence and deleted the third sentence of that subsec. and added subsecs. (b) and (c).

—1989. Inserted “against the state of Vermont” following “settlement” in the first sentence, substituted “acts or omissions” for “alleged negligence” following “result of the”, deleted “official or” preceding “employee not” and substituted “the state treasurer” for “him” following “reimburse” in the second sentence, and deleted “thereof” following “payment” in the third sentence.

ANNOTATIONS

Cited.

Cited in Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 622 A.2d 495, 1993 Vt. LEXIS 14 (1993); Hillerby v. Town of Colchester, 167 Vt. 270, 706 A.2d 446, 1997 Vt. LEXIS 277 (1997).

§ 5605. Repealed. 1989, No. 114, § 11(a)(3).

History

Former § 5606. Former § 5605, relating to release of any claim against the State of Vermont or against an employee of the State, was derived from 1961, No. 265 , § 5 and amended by 1963, No. 215 , § 3.

For present provisions relating to release of tort claims against the State, see § 5603 of this title.

§ 5606. Indemnification of employees.

  1. In any action defended by the Attorney General or the Attorney General’s designee in which a judgment is rendered against an employee of the State for acts or omissions within the scope of his or her employment, or a settlement requires payment by such a person, and the right of action is based upon 42 U.S.C. § 1983, or under a similar federal statute where State law is incapable of establishing employee immunity, the State shall indemnify the employee for the amount of the employee’s liability.
  2. The maximum liability of the State under this section shall be $500,000.00 to any one person and the maximum aggregate liability shall be $2,000,000.00 to all persons arising out of each occurrence.
  3. Notwithstanding subsection (a) of this section, no indemnification shall be paid:
    1. for a judgment or settlement which results from gross negligence or willful misconduct; or
    2. for a settlement not approved by the Attorney General or the Attorney General’s designee; or
    3. if the employee did not ensure that the Attorney General had timely notice of the action or the employee did not cooperate in the defense of the action.
  4. Upon certification by the Attorney General to the Commissioner of Finance and Management that an employee is eligible for indemnification under this section, the Commissioner shall issue a warrant for payment against funds available to the employee’s department or agency.  If the Attorney General believes there is reasonable doubt about whether the officer or employee is eligible for indemnification, the Attorney General shall refer the matter to the Labor Relations Board which may decide the matter.  The decision of the Board shall not be subject to appeal.

HISTORY: Added 1989, No. 114 , § 5, eff. June 20, 1989; amended 1989, No. 114 , § 11(b); 2011, No. 40 , § 36a, eff. May 20, 2011.

History

Amendments

—2011. Subsec. (b): Substituted “$500,000.00” for $250,000.00” and “$2,000,000.00” for “$1,000,000.00”.

—1989. Subsec. (b): Repealed by Act No. 114, § 11(b).

Repeal of 1989, No. 114 , § 11(b) amendment. 1993, No. 38 , § 1, eff. June 3, 1993, repealed 1989, No. 114 , § 11(b), which provided for the repeal of subsec. (b) of this section effective on March 1, 1994.

ANNOTATIONS

Willful misconduct.

While an inmate’s complaint against a prison guard nominally alleged simply assault and battery, the underlying conduct alleged was sexual assault, an act of willful misconduct. Accordingly, the State was not obligated to indemnify the guard for the judgment the inmate obtained against him for the conduct alleged in her complaint. Heffernan v. State, 2018 VT 47, 207 Vt. 340, 187 A.3d 1149, 2018 Vt. LEXIS 41 (2018).

Cited.

Cited in Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 622 A.2d 495, 1993 Vt. LEXIS 14 (1993); Hillerby v. Town of Colchester, 167 Vt. 270, 706 A.2d 446, 1997 Vt. LEXIS 277 (1997).

Chapter 191. Interests of Minors

§ 5611. Interest of minors.

A petition on any matter affecting the interests of a minor under 33 V.S.A. chapter 51, 52, or 53; 15 V.S.A. chapter 9; or chapter 107 of this title shall be set down for hearing at the earliest possible time and shall take precedence over all matters except older matters of the same character.

HISTORY: Added 1975, No. 233 (Adj. Sess.), § 1; 2013, No. 131 (Adj. Sess.), § 103.

History

References in text.

15 V.S.A. Chapter 9, referred to in this section, was repealed by 1995, No. 161 (Adj. Sess.), § 7.

Revision note—

Substituted “chapter 55 of Title 33” for “chapter 12 of Title 33” in view of the recodification of that title by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Amendments

—2013 (Adj. Sess.). Substituted “33 V.S.A. chapter 51, 52, or 53, 15 V.S.A. chapter 9” for “chapter 55 of Title 33, chapter 9 of Title 15” following “a minor under”.

ANNOTATIONS

Cited.

Cited in In re D.P., 147 Vt. 26, 510 A.2d 967, 1986 Vt. LEXIS 355 (1986).

Chapter 192. Arbitration Act

History

Applicability of enactment.

1985, No. 95 , § 3, provided that this chapter shall apply to all agreements entered into and executed on or after July 1, 1985.

CROSS REFERENCES

New motor vehicle warranty arbitration, see 9 V.S.A. ch. 115.

ANNOTATIONS

Application.

Arbitration clause contained in insurance contract entered into on June 22, 1985 was not subject to the provisions of this chapter. Preziose v. Lumbermen's Mutual Casualty Co., 152 Vt. 604, 568 A.2d 397, 1989 Vt. LEXIS 195 (1989).

Authority of arbitrators.

When delineating the authority of arbitrators operating under the authority of Vermont’s general arbitration law, the Vermont Arbitration Act, 12 V.S.A. §§ 5651-5681 , the Legislature clearly enumerated the very limited grounds upon which arbitrators may modify an award: (1) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award; or (2) the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or (3) the award is imperfect in a matter of form, not affecting the merits of the controversy; the negative implication is that the Motor Vehicle Arbitration Board does not have authority to modify a final award. Cyr v. Subaru of America, Inc., 162 Vt. 226, 647 A.2d 706, 1994 Vt. LEXIS 63 (1994).

Subchapter 1. General Provisions

§ 5651. Short title.

This chapter may be cited as the Vermont Arbitration Act.

HISTORY: Added 1985, No. 95 , § 2.

ANNOTATIONS

Application.

Both the Federal Arbitration Act and the Vermont Arbitration Act applied to an arbitration agreement which was formed in Vermont and which the defendant sought to enforce in Vermont; however, in considering issues of both procedural unconscionability relating to the form of the contract to arbitrate and substantive unconscionability relating to its content, the federal court was guided by Vermont decisional law where it was available. Littlejohn v. Timberquest Park at Magic, LLC, 116 F. Supp. 3d 422, 2015 U.S. Dist. LEXIS 94592 (D. Vt. 2015).

When a provision of an agreement made clear the parties’ intention to arbitrate under the Federal Arbitration Act (FAA) rather than the Vermont Arbitration Act, the court had to give effect to this choice. Given the court’s broad implementation and enforcement jurisdiction under the agreement, there was no authority in the FAA to divest the court from hearing an appeal from the trial court’s order interpreting the provision; accordingly, the court had jurisdiction to hear the appeal. State v. Philip Morris USA Inc., 2008 VT 11, 183 Vt. 176, 945 A.2d 887, 2008 Vt. LEXIS 7 (2008), dismissed in part, (Vt. Super. Ct. 2010).

§ 5652. Validity of arbitration agreements.

  1. General rule.   Unless otherwise provided in the agreement, a written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties creates a duty to arbitrate, and is valid, enforceable, and irrevocable, except upon such grounds as exist for the revocation of a contract.
  2. Required provision.   No agreement to arbitrate is enforceable unless accompanied by or containing a written acknowledgment of arbitration signed by each of the parties or their representatives.  When contained in the same document as the agreement to arbitrate, that acknowledgment shall be displayed prominently.  The acknowledgment shall provide substantially as follows:

    “ACKNOWLEDGMENT OF ARBITRATION.

    I understand that (this agreement/my agreement with of ) contains an agreement to arbitrate. After signing (this/that) document, I understand that I will not be able to bring a lawsuit concerning any dispute that may arise which is covered by the arbitration agreement, unless it involves a question of constitutional or civil rights. Instead, I agree to submit any such dispute to an impartial arbitrator.”

HISTORY: Added 1985, No. 95 , § 2.

ANNOTATIONS

Acknowledgment.

Statement in arbitration agreement that parties would abide by and perform any award, that a judgment may be entered upon the award, and that arbitration would be binding and unappealable, which was neither in bold face nor underlined, was not sufficient to meet the requirements for an acknowledgment under subsection (b) of this section. Joder Building Corp. v. Lewis, 153 Vt. 115, 569 A.2d 471, 1989 Vt. LEXIS 244 (1989).

Party who participated in arbitration hearing without raising issue of whether written acknowledgment was sufficient under subsection (b) of this section waived the right to challenge arbitration award by raising acknowledgment issue for the first time in court, pursuant to section 5677(a)(5) of this title. Joder Building Corp. v. Lewis, 153 Vt. 115, 569 A.2d 471, 1989 Vt. LEXIS 244 (1989).

Appeal from arbitration.

Clause of automobile insurance policy which precluded appeal of arbitrator’s award when below statutory minimum for liability coverage but permitted appeal for awards in excess of such minimum violated public policy represented by this chapter. O'Neill v. Berkshire Mutual Insurance Co., 786 F. Supp. 397, 1992 U.S. Dist. LEXIS 11238 (D. Vt. 1992).

Duty to arbitrate.

Having already signed an arbitration agreement, plaintiffs were duty-bound to continue with the proceeding, regardless of whether their attorney “reserved” this issue for later litigation or “waived” it. Plaintiffs therefore could not show in their legal malpractice case that the attorney’s decision to “withdraw” the statute-of-limitations issue at the hearing and to continue with the arbitration, once it had begun, was the proximate cause of any of their injuries. Clayton v. Unsworth, 2010 VT 84, 188 Vt. 432, 8 A.3d 1066, 2010 Vt. LEXIS 81 (2010).

Federal preemption.

Provision of this section requiring that any agreement to arbitrate be displayed prominently in the contract or contract confirmation and be signed by the parties is preempted by federal arbitration act. David L. Threlkeld & Co. v. Metallgesellschaft, 923 F.2d 245, 1991 U.S. App. LEXIS 490 (2d Cir.), cert. dismissed, 501 U.S. 1267, 112 S. Ct. 17, 115 L. Ed. 2d 1094, 1991 U.S. LEXIS 4095 (1991).

Stipulation.

Given the clear requirements of the arbitration statute and the important rights at stake, mere silence by one party in response to another party’s representation that an arbitration agreement has been reached is insufficient to create an enforceable agreement. Knaresborough Enters., Ltd v. Dizazzo, 2021 VT 1, — Vt. —, 251 A.3d 950, 2021 Vt. LEXIS 2 (Vt. 2021).

When plaintiff’s counsel told the trial court simply that the parties had orally agreed to an arbitration provision and planned to work out the terms between themselves, after which defendants did not respond and no further mention of arbitration was made at the hearing, defendants’ silence was insufficient to constitute an enforceable stipulation to arbitrate and to demonstrate a knowing and voluntary waiver of the protections of the statute. Knaresborough Enters., Ltd v. Dizazzo, 2021 VT 1, — Vt. —, 251 A.3d 950, 2021 Vt. LEXIS 2 (Vt. 2021).

Cited.

Cited in MacDonald v. Roderick, 158 Vt. 1, 603 A.2d 369, 1992 Vt. LEXIS 1 (1992).

§ 5653. Limitations.

  1. This chapter applies to all arbitration agreements to the extent not inconsistent with the laws of the United States. However, this chapter does not apply to labor interest arbitration, nor to arbitration agreements contained in a contract of insurance, nor to grievance arbitration under 3 V.S.A. chapter 28. “Labor interest arbitration” means the method of concluding labor negotiations by having a disinterested person determine what will be the terms of an agreement.
  2. No arbitration agreement shall have the effect of preventing a person from seeking or obtaining the assistance of the courts in enforcing his or her constitutional or civil rights.

HISTORY: Added 1985, No. 95 § 2; amended 1997, No. 92 (Adj. Sess.), § 7.

History

Amendments

—1997 (Adj. Sess.). Subsec. (a): Added “nor to grievance arbitration under chapter 28 of Title 3” at the end of the second sentence.

ANNOTATIONS

Construction.

Clause of automobile insurance policy which precluded appeal of arbitrator’s award when below statutory minimum for liability coverage but permitted appeal for awards in excess of such minimum violated public policy represented by this chapter. O'Neill v. Berkshire Mutual Insurance Co., 786 F. Supp. 397, 1992 U.S. Dist. LEXIS 11238 (D. Vt. 1992).

Revocation of agreement.

The Federal Arbitration Act preempts the Vermont Arbitration Act and makes irrevocable an agreement to arbitrate an uninsured motorist coverage dispute. Little v. Allstate Insurance Co., 167 Vt. 171, 705 A.2d 538, 1997 Vt. LEXIS 257 (1997).

§ 5654. Uniformity of interpretation.

This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it or substantially similar provisions.

HISTORY: Added 1985, No. 95 , § 2.

§ 5655. Representation by attorney.

A party has the right to be represented by an attorney at any proceeding or hearing under this subchapter. A waiver thereof prior to the proceeding or hearing is ineffective.

HISTORY: Added 1985, No. 95 , § 2.

Subchapter 2. Arbitration Procedures

§ 5661. Majority action by arbitrators.

The powers of the arbitrators may be exercised by a majority of them, unless otherwise provided by the agreement or by this chapter.

HISTORY: Added 1985, No. 95 , § 2.

§ 5662. Witnesses; subpoenas; depositions.

  1. Arbitrators may issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence, and may administer oaths.  Subpoenas so issued shall be served in the manner provided by law for subpoenas in civil actions.
  2. On application of a party and for use as evidence, the arbitrators may permit a deposition to be taken, in the manner and upon the terms designated by the arbitrators, of a witness who cannot be subpoenaed or is unable to attend the hearing.
  3. All provisions of law compelling a person under subpoena to appear and to testify are applicable to subpoenas issued by arbitrators.  Upon application, a court shall enforce or quash such a subpoena in the same manner as a subpoena in a civil action.
  4. Fees for attendance as a witness shall be the same as for a witness in the Superior Courts.

HISTORY: Added 1985, No. 95 , § 2.

§ 5663. Award.

  1. An arbitration award shall be in writing and signed by the arbitrators joining in it.  The arbitrators shall deliver a copy to each party personally or by registered mail, or as provided in the agreement.
  2. An award shall be made within the time fixed by the agreement or, if not so fixed, within such time as a court orders.  The parties may extend the time in writing either before or after the expiration of an agreed or ordered time.  A party waives the objection that an award was not made within the time required unless he or she notifies the arbitrators of his or her objection before the award is delivered to him or her.

HISTORY: Added 1985, No. 95 , § 2.

§ 5664. Modification of award by arbitrators.

  1. An award may be modified by the arbitrators:
    1. on application of a party; or
    2. following submission to the arbitrators from a court, and under such conditions as the court may order.
  2. Modification may be made for the purpose of clarifying the award or upon the following grounds:
    1. there was an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property referred to in the award; or
    2. the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
    3. the award is imperfect in a matter of form, not affecting the merits of the controversy.
  3. An application by a party for modification shall be made within 30 days after delivery of the award to the applicant. Written notice thereof shall be given forthwith to the opposing party, stating he or she must serve his or her objections thereto, if any, within 10 days from the notice. The award so modified or corrected is subject to being subsequently confirmed, modified, or vacated by a court.

HISTORY: Added 1985, No. 95 , § 2.

§ 5665. Fees and expenses of arbitration.

Unless otherwise provided in the agreement to arbitrate, the arbitrators’ expenses and fees, together with other expenses incurred in the conduct of the arbitration, shall be paid as provided in the award. An arbitration award may direct the payment of attorney’s fees if the parties have explicitly authorized the arbitrator to make such an award or if the award is based in whole or in part upon State or federal law which permits recovery of attorney’s fees.

HISTORY: Added 1985, No. 95 , § 2.

§ 5666. Hearing.

Unless otherwise provided by the agreement:

  1. The arbitrators shall appoint a time and place for the hearing and cause notification to the parties to be served personally or by registered mail not less than five days before the hearing.  Appearance at the hearing waives all objections to notice.
  2. The arbitrators may adjourn the hearing from time to time as necessary.  On request of a party and for good cause, or upon their own motion, the arbitrators may postpone the hearing to a time not later than the date fixed by the agreement for making the award unless the parties consent to a later date.
  3. The arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party duly notified to appear.
  4. The parties are entitled to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing.
  5. The hearing shall be conducted by all the arbitrators but the majority may determine any question and render a final award. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators appointed to act as neutrals may continue with the hearing and determination of the controversy.

HISTORY: Added 1985, No. 95 , § 2.

ANNOTATIONS

Absence of party.

There was no merit to defendant’s argument that plaintiff was required to petition to compel defendant to arbitrate before proceeding with arbitration in defendant’s absence. Unifirst Corp. v. Junior's Pizza, Inc., 2012 VT 13, 191 Vt. 603, 46 A.3d 887, 2012 Vt. LEXIS 13 (2012) (mem.).

Vermont Arbitration Act provides that arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party duly notified to appear. Thus, an arbitration hearing may proceed without the participation of an unwilling party. Unifirst Corp. v. Junior's Pizza, Inc., 2012 VT 13, 191 Vt. 603, 46 A.3d 887, 2012 Vt. LEXIS 13 (2012) (mem.).

Subchapter 3. Judicial Proceedings

§ 5671. Jurisdiction.

The making of an agreement to arbitrate which is subject to this chapter confers jurisdiction on the Superior Court for proceedings under this chapter. Except where the context requires a broader reading, the term “court” as used in this chapter means the Superior Court. In relation to any such agreement to arbitrate, the court may enter any one or more orders:

  1. to compel a person to proceed with arbitration;
  2. to stay arbitration;
  3. to appoint arbitrators;
  4. to enforce a subpoena issued by arbitrators;
  5. to direct arbitrators to proceed with hearings or to make an award;
  6. to confirm an award of arbitrators;
  7. to vacate an award;
  8. to modify an award or to submit to arbitrators to consider modifying an award; and
  9. to enter judgment on the award.

HISTORY: Added 1985, No. 95 , § 2.

History

Revision note—

At the beginning of the section, deleted subsec. designation to conform section to V.S.A. style.

§ 5672. Venue.

  1. An initial application to the Superior Court may be made:
    1. in any county in which the agreement provides that arbitration hearings shall be held; or
    2. if a hearing has been held by arbitrators, in the county in which it was held; or
    3. in other cases, in the county where the party adverse to the moving party resides or has a place of business or, if he or she has neither in Vermont, in Washington County.
  2. All subsequent applications shall be made to the court hearing the initial application unless the court otherwise directs.

HISTORY: Added 1985, No. 95 , § 2.

§ 5673. Applications to court; service.

  1. Except as otherwise provided, an application to the Superior Court under this chapter shall be by motion and shall be heard in the manner and upon the notice provided by law or rule for the making and hearing of motions.
  2. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in a civil action.

HISTORY: Added 1985, No. 95 , § 2.

CROSS REFERENCES

Service in civil actions generally, see Rule 4, Vermont Rules of Civil Procedure.

ANNOTATIONS

Due process.

By specifying, for court review of an arbitration award, that “an application to the superior court . . . shall be by motion and shall be heard in the manner and upon the notice provided by law or rule,” the Legislature intended that judicial intervention would be based on summary procedures, by motion practice rules. The court correctly followed the motion rule, and its erroneous labeling of the application as a motion for summary judgment did not violate defendant’s procedural rights under statute or rules, and certainly did not violate its due process rights. Springfield Teachers Ass'n v. Springfield School Directors, 167 Vt. 180, 705 A.2d 541, 1997 Vt. LEXIS 259 (1997).

§ 5674. Proceedings to compel or stay arbitration.

  1. On application of a party showing an agreement subject to this chapter and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration.  If the opposing party denies the existence of the agreement, the court shall determine the issue summarily.  If the court finds for the moving party, it shall order the parties to proceed with arbitration.  Otherwise, the application shall be denied.
  2. On application to compel or stay arbitration, and on a showing that there is no agreement to arbitrate, the court may stay a commenced or threatened arbitration proceeding.  When in substantial and bona fide dispute, the issue of whether there is an agreement to arbitrate shall be forthwith and summarily tried.  The court shall order the stay if it finds no enforceable agreement to arbitrate.  Otherwise, the court shall order the parties to proceed to arbitration.
  3. When the existence or validity of an agreement to arbitrate or a party’s refusal to arbitrate is in substantial and bona fide dispute, the court shall proceed summarily to the determination of the issue.
  4. Notwithstanding section 5672 of this title relating to venue, if an issue referable to arbitration under an alleged agreement is involved in an action or proceeding pending in a Superior Court, applications to compel or to stay arbitration shall be made only to that court.
  5. Any action or civil proceeding involving an issue which is subject to arbitration shall be stayed if an order to compel arbitration or an application therefor has been made.  If the issue is severable, the stay may be with respect only to that issue.  When application to compel arbitration is made to a court other than the one in which the action or proceeding is pending, any order to compel arbitration shall include that stay.
  6. An order to compel arbitration shall not be refused on the ground that the claim in issue lacks merits or bona fides nor because the applicant has failed to show fault or grounds for the claim sought to be arbitrated.

HISTORY: Added 1985, No. 95 , § 2.

ANNOTATIONS

Absence of party.

There was no merit to defendant’s argument that plaintiff was required to petition to compel defendant to arbitrate before proceeding with arbitration in defendant’s absence. Unifirst Corp. v. Junior's Pizza, Inc., 2012 VT 13, 191 Vt. 603, 46 A.3d 887, 2012 Vt. LEXIS 13 (2012) (mem.).

Construction.

There is no Vermont rule requiring a party to compel an unwilling adversary to participate in arbitration. While a party may petition the court to compel or stay arbitration hearings, this provision of the Vermont Arbitration Act is permissive; it does not mandate a motion to compel prior to proceeding with arbitration. Unifirst Corp. v. Junior's Pizza, Inc., 2012 VT 13, 191 Vt. 603, 46 A.3d 887, 2012 Vt. LEXIS 13 (2012) (mem.).

Existence of arbitration agreement.

There was no merit to a telephone company’s argument that under the Federal Arbitration Act and the Vermont Arbitration Act, which both directed a court to summarily determine whether the making of an agreement to arbitrate was in dispute, the trial court should have held a hearing on the issue of when a customer’s cell phone contract was assigned to the company. After the trial court denied the company’s motion to compel arbitration, it expressly considered the new evidence submitted by the company and denied its motion to reconsider; what the company appeared to be requesting was a third bite at the apple. Porter v. AT&T Mobility, LLC, 2011 VT 112, 190 Vt. 635, 35 A.3d 1002, 2011 Vt. LEXIS 112 (2011).

Cited.

Cited in Joder Building Corp. v. Lewis, 153 Vt. 115, 569 A.2d 471, 1989 Vt. LEXIS 244 (1989).

§ 5675. Appointment of arbitrators.

  1. On application of a party, a court shall appoint one or more arbitrators if:
    1. the arbitration agreement does not provide for a method of appointment; or
    2. the agreed method fails or for any reason cannot be followed; or
    3. an appointed arbitrator fails or is unable to act and his or her successor has not been duly appointed.
  2. If the arbitration agreement provides a method of appointment of arbitrators, that method shall be followed.
  3. An arbitrator appointed by the court has all of the powers of an arbitrator appointed under an agreement.

HISTORY: Added 1985, No. 95 , § 2.

§ 5676. Confirmation of an award.

Upon application of a party to confirm, modify, or vacate an award, the court shall confirm the award unless it finds grounds for vacating or modifying the award.

HISTORY: Added 1985, No. 95 , § 2.

ANNOTATIONS

Counterclaims.

Neither the civil rules nor the Vermont Arbitration Act contain authorization for filing a counterclaim in response to a motion to confirm an arbitration award. Allowing a counterclaim would be inconsistent with the summary procedure established, and it would be difficult in such circumstances to ensure expeditious relief to the prevailing party and at the same time protect the procedural rights of the counterclaimant, particularly the right to trial by jury. Springfield Teachers Ass'n v. Springfield School Directors, 167 Vt. 180, 705 A.2d 541, 1997 Vt. LEXIS 259 (1997).

Finality.

An arbitrator’s award reinstating grievant to a full-time teaching position and ordering that he be made “whole for earnings lost” was as final as it could be for purposes of enforcement, as it was impossible to know when grievant would be reinstated and how much back pay would be due at that time. The proper resolution on appeal was to sever the award and confirm the arbitrator’s decision on the merits, but refer the matter back to the arbitrator for determination of the back pay award. Springfield Teachers Ass'n v. Springfield School Directors, 167 Vt. 180, 705 A.2d 541, 1997 Vt. LEXIS 259 (1997).

Cited.

Cited in Matzen Construction, Inc. v. Leander Anderson Corp., 152 Vt. 174, 565 A.2d 1320, 1989 Vt. LEXIS 157 (1989); Brinckerhoff v. Brinckerhoff, 2005 VT 75, 179 Vt. 532, 889 A.2d 701, 2005 Vt. LEXIS 165 (2005) (mem.).

§ 5677. Vacating an award.

  1. Upon application of a party to confirm, modify, or vacate an award, the court shall vacate an award where:
    1. the award was procured by corruption, fraud, or other undue means;
    2. there was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
    3. the arbitrators exceeded their powers;
    4. the arbitrators refused to postpone the hearing after being shown sufficient cause to do so, or refused to hear evidence material to the controversy, or otherwise conducted the hearing, contrary to this chapter so as to prejudice substantially the rights of a party; or
    5. a court has found that there was no arbitration agreement and the party did not participate in the arbitration hearing without raising the objection.
  2. The fact that relief granted by the arbitrators could not have been granted by a court is not reason to vacate or refuse to confirm the award.
  3. An application to vacate an award shall be made within 30 days after delivery of a copy of the award to the applicant, except that if predicated upon corruption, fraud, or other undue means, it may be made within 30 days after such grounds are known or should have been known.
  4. If the court vacates the award on grounds other than that there was no arbitration agreement, it may order a rehearing before new arbitrators chosen as provided in the agreement, or in the absence of such a provision, as appointed by the court.  If the court vacates the award because the arbitrators exceeded their powers or improperly conducted the hearing, the court may order a rehearing before the arbitrators who made the award or their successors.  Any time within which the agreement requires an award to be made applies to the rehearing, and commences from the date of the order.
  5. If an application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award.

HISTORY: Added 1985, No. 95 , § 2.

ANNOTATIONS

Exclusion of evidence.

In general, great flexibility is afforded arbitrators to determine admissibility, and the exclusion of evidence will not be grounds to vacate arbitration award unless critical evidence is completely omitted. Matzen Construction, Inc. v. Leander Anderson Corp., 152 Vt. 174, 565 A.2d 1320, 1989 Vt. LEXIS 157 (1989).

Partiality.

Where, instead of making particularized allegations of bias, plaintiffs discussed widespread corruption in arbitration proceedings administered by the National Association of Securities Dealers, such generalized assertions fell short of the showing of “evident partiality” required by statute for vacation of the award. Shahi v. Ascend Financial Services, Inc., 2006 VT 29, 179 Vt. 434, 898 A.2d 116, 2006 Vt. LEXIS 50 (2006).

Postponement of hearing.

Arbitrators must be accorded great flexibility in determining whether sufficient cause exists to grant postponement request, under subdivision (a)(4) of this section. Joder Building Corp. v. Lewis, 153 Vt. 115, 569 A.2d 471, 1989 Vt. LEXIS 244 (1989).

Court properly refused to vacate arbitration award under provisions of subdivision (a)(4) of this section, based on refusal of arbitrators to grant continuance request; the very brief and cryptic request did not constitute sufficient cause for a postponement of arbitration hearing. Joder Building Corp. v. Lewis, 153 Vt. 115, 569 A.2d 471, 1989 Vt. LEXIS 244 (1989).

Scope of review.

A court may review a claim that the arbitrator exceeded the authority conferred on him or her by the parties. However, such a determination must be based on evidence clearly demonstrating that the arbitrator exceeded his or her authority, and any doubts about the scope of the parties’ agreement should be resolved in favor of coverage. Brinckerhoff v. Brinckerhoff, 2005 VT 75, 179 Vt. 532, 889 A.2d 701, 2005 Vt. LEXIS 165 (2005) (mem.).

Scope of trial court’s review of arbitration award is limited to ensuring that the arbitration proceedings fall within the boundaries of due process, and the court shall confirm the award unless grounds are established to vacate or modify it. Matzen Construction, Inc. v. Leander Anderson Corp., 152 Vt. 174, 565 A.2d 1320, 1989 Vt. LEXIS 157 (1989).

Time limitation.

Defendant was provided a copy of the arbitration award in December 2009, but did not seek to vacate the award until February 2011, when it opposed plaintiff’s motion to confirm the award. Accordingly, defendant waived any objections it might have had by failing to seek a vacatur within 30 days. Unifirst Corp. v. Junior's Pizza, Inc., 2012 VT 13, 191 Vt. 603, 46 A.3d 887, 2012 Vt. LEXIS 13 (2012) (mem.).

A party may not raise affirmative defenses to an application to confirm an arbitration award unless it does so within the statutory time limit for moving to vacate an award. Springfield Teachers Ass'n v. Springfield School Directors, 167 Vt. 180, 705 A.2d 541, 1997 Vt. LEXIS 259 (1997).

12 V.S.A. § 5677(c) requires that motions to vacate arbitration awards be made within 30 days in all cases and cannot be construed to exempt jurisdictional claims from this time limit. Springfield Teachers Ass'n v. Springfield School Directors, 167 Vt. 180, 705 A.2d 541, 1997 Vt. LEXIS 259 (1997).

Waiver of objections.

Under provisions of subdivision (a)(5) of this section, party who participated in arbitration hearing without raising issue of whether written acknowledgment was sufficient under section 5652(b) of this title waived the right to challenge arbitration award on this basis in court. Joder Building Corp. v. Lewis, 153 Vt. 115, 569 A.2d 471, 1989 Vt. LEXIS 244 (1989).

Cited.

Cited in Muzzy v. Chevrolet Division, General Motors Corp., 153 Vt. 179, 571 A.2d 609, 1989 Vt. LEXIS 263 (1989); In re Robinson/Keir Partnership, 154 Vt. 50, 573 A.2d 1188, 1990 Vt. LEXIS 42 (1990); Montpelier Board of School Commissioners v. Montpelier Education Ass'n, 167 Vt. 570, 702 A.2d 390, 1997 Vt. LEXIS 233 (1997); In re Villeneuve, 167 Vt. 450, 709 A.2d 1067, 1998 Vt. LEXIS 16 (1998).

§ 5678. Modification of award.

  1. Upon application of a party to confirm, modify, or vacate an award, and made within 30 days after delivery of a copy of an award to the applicant, the court may submit the award to the arbitrators for modification or may consider modification under this section.
  2. If the court considers modification, it shall modify the award where it finds:
    1. there was an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property referred to in the award;
    2. the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
    3. the award is imperfect in a matter of form, not affecting the merits of the controversy.
  3. If modification is granted, the court shall modify the award so as to effect its intent and shall confirm the award as so modified and corrected.
  4. An application to modify an award shall be made within 30 days after delivery of a copy of the award to the applicant.  It may be joined in the alternative with an application to vacate the award.

HISTORY: Added 1985, No. 95 , § 2.

ANNOTATIONS

Award calculations.

In the absence of express contractual language to the contrary, arbitration panels need not provide any explanation or reasoning beyond the award figure. Shahi v. Ascend Financial Services, Inc., 2006 VT 29, 179 Vt. 434, 898 A.2d 116, 2006 Vt. LEXIS 50 (2006).

Because great deference is afforded to the decisions of arbitration panels, the court will not speculate as to award calculations or formulas employed by the panel when those calculations are not “evident” on the face of the award. An arbitration panel will not be found to have made an evident miscalculation based on one party’s unsupported assertion that the panel erred. Shahi v. Ascend Financial Services, Inc., 2006 VT 29, 179 Vt. 434, 898 A.2d 116, 2006 Vt. LEXIS 50 (2006).

Cited.

Cited in Matzen Construction, Inc. v. Leander Anderson Corp., 152 Vt. 174, 565 A.2d 1320, 1989 Vt. LEXIS 157 (1989); Brinckerhoff v. Brinckerhoff, 2005 VT 75, 179 Vt. 532, 889 A.2d 701, 2005 Vt. LEXIS 165 (2005) (mem.).

§ 5679. Judgment or decree on award.

Upon the granting of an order confirming or modifying an award, judgment shall be entered in conformity therewith and be enforced as any other judgment. Costs of the application, of the proceedings subsequent thereto, and of disbursements may be awarded by the court.

HISTORY: Added 1985, No. 95 , § 2.

ANNOTATIONS

Enforcement of award.

Because a corporation failed to make the first installment payment for a former employee’s stock, as required by an arbitration award, the trial court properly ordered the corporation to pay the full amount due as a result of its default. The employee held a judgment order entitling him to specific performance. Stephens v. Applejack Art Ptnrs., Inc., 2011 VT 40, 189 Vt. 630, 23 A.3d 660, 2011 Vt. LEXIS 37 (2011).

§ 5680. Judgment roll; docketing.

  1. On entry of judgment, the clerk shall prepare the judgment roll consisting, to the extent filed, of the following:
    1. the agreement and each written extension of the time within which to make the award;
    2. the award;
    3. a copy of the order confirming, modifying, or correcting the award; and
    4. a copy of the judgment or decree.
  2. The judgment or decree may be docketed as if rendered in an action.

HISTORY: Added 1985, No. 95 , § 2.

§ 5681. Appeals.

  1. An appeal may be taken from:
    1. an order denying an application to compel arbitration;
    2. an order granting an application to stay arbitration;
    3. an order confirming or denying confirmation of an award;
    4. an order modifying or correcting an award;
    5. an order vacating an award without directing a rehearing; or
    6. a judgment.
  2. The appeal shall be taken in the manner and to the same extent as from orders or judgment in a civil action.

HISTORY: Added 1985, No. 95 , § 2.

ANNOTATIONS

Cited.

Cited in Matzen Construction, Inc. v. Leander Anderson Corp., 152 Vt. 174, 565 A.2d 1320, 1989 Vt. LEXIS 157 (1989).

Chapter 193. Snowmobile and Boating Violations

§§ 5701-5707. Repealed. 2017, No. 71, § 18.

History

Former §§ 5701-5707. Former § 5701, relating to applicability of chapter regarding snowmobile and boating violations, was derived from 1977, No. 207 (Adj. Sess.), § 3 and amended by 1983, No. 212 (Adj. Sess.), § 3 and 1989, No. 65 , § 16.

Former § 5702, relating to jurisdiction and venue pertaining to snowmobiles and boating violations, was derived from 1977, No. 207 (Adj. Sess.), § 3 and amended by 1989, No. 109 § 11.

Former § 5703, relating to uniform complaints, was derived from 1977, No. 207 (Adj. Sess.), § 3 and amended by 1983, No. 212 (Adj. Sess.), § 4 and 1989, No. 65 , § 17.

Former § 5704, relating to failure to appear, was derived from 1977, No. 207 (Adj. Sess.), § 3 and amended by 1989, No. 65 , § 18.

Former § 5705, relating to waiver and establishment of fines, was derived from 1977, No. 207 (Adj. Sess.), § 3 and amended by 2009, No. 154 (Adj. Sess.), § 87.

Former § 5706, relating to court procedure and evidence, was derived from 1977, No. 207 (Adj. Sess.), § 3.

Former § 5707, relating to Supreme Court Rules, was derived from 1977, No. 207 (Adj. Sess.), § 3.

Chapter 194. Uniform Mediation Act

§ 5711. Short title.

This chapter may be cited as the Vermont Uniform Mediation Act.

HISTORY: Added 2005, No. 126 (Adj. Sess.), § 1.

§ 5712. Uniformity of application.

In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

HISTORY: Added 2005, No. 126 (Adj. Sess.), § 1.

§ 5713. Definitions.

As used in this chapter:

  1. “Court” means a court of competent jurisdiction in Vermont.
  2. “Mediation” means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.
  3. “Mediation communication” means a statement, whether oral, in a record, verbal, or nonverbal, that is made or occurs during a mediation or for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.
  4. “Mediator” means an individual who conducts a mediation.
  5. “Nonparty participant” means a person, other than a party or mediator, that participates in a mediation.
  6. “Party” means a person that participates in a mediation and whose agreement is necessary to resolve the dispute.
  7. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, instrumentality, public corporation, or any other legal or commercial entity.
  8. “Proceeding” means a judicial, administrative, arbitral, or other adjudicative process, including related prehearing and posthearing motions, conferences, and discovery; or a legislative hearing or similar process.
  9. “Record,” except in the phrase “record of proceeding,” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium, and is retrievable in perceivable form.
  10. “Sign” includes:
    1. executing or adopting a tangible symbol with the present intent to authenticate a record;
    2. attaching or logically associating an electronic symbol, sound, or process to or with a record with the present intent to authenticate a record.

HISTORY: Added 2005, No. 126 (Adj. Sess.), § 1.

§ 5714. Scope.

  1. Except as otherwise provided in subsection (b) or (c) of this section, this chapter applies to a mediation in which:
    1. the parties are required to mediate by statute or court or administrative agency rule, or referred to mediation by a court, administrative agency, or arbitrator;
    2. the parties and the mediator agree to mediate in a record that demonstrates an expectation that mediation communications will be privileged against disclosure; or
    3. the parties utilize as a mediator a person that holds himself or herself out as providing mediation services.
  2. This chapter does not apply to a mediation:
    1. relating to the establishment, negotiation, administration, or termination of a collective bargaining relationship;
    2. relating to a dispute that is pending under or is part of the processes established by a collective bargaining agreement, except that this chapter applies to a mediation arising out of such a dispute that has been filed with a court or with a public agency other than the federal Mediation and Conciliation Service or the Vermont Labor Relations Board;
    3. conducted under the auspices of a primary or secondary school where all the parties are students, or under the auspices of a correctional institution for youths where all the parties are residents of that institution; or
    4. conducted by a judge who might make a ruling on the case.
  3. If the parties agree in advance that all or part of a mediation is not privileged, the privileges under sections 5715 through 5717 of this title do not apply to the mediation or part agreed upon. The agreement must be in a signed record or reflected in the record of a proceeding. However, sections 5715 through 5717 of this title apply to a mediation communication made by a person who has not received actual notice of the agreement before the communication is made.

HISTORY: Added 2005, No. 126 (Adj. Sess.), § 1.

§ 5715. Privilege against disclosure; admissibility; discovery.

  1. A mediation communication is privileged and is not subject to discovery or admissible in evidence in a proceeding.
  2. In a proceeding, the following privileges apply:
    1. A party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.
    2. A mediator may refuse to disclose a mediation communication and may prevent any other person from disclosing a mediation communication of the mediator.
    3. A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.
  3. Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.

HISTORY: Added 2005, No. 126 (Adj. Sess.), § 1.

§ 5716. Waiver and preclusion of privilege.

  1. A privilege under section 5715 of this title may be waived in a record or orally during a proceeding, if it is expressly waived by all parties to the mediation, and:
    1. in the case of the privilege of a mediator, it is expressly waived by the mediator; and
    2. in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.
  2. A person who discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under section 5715 of this title to the extent necessary for the person prejudiced to respond to the representation or disclosure.
  3. A person who intentionally uses a mediation to plan, attempt to commit, or commit a crime, or conceal an ongoing crime or ongoing criminal activity, may not assert a privilege under section 5715 of this title.

HISTORY: Added 2005, No. 126 (Adj. Sess.), § 1.

§ 5717. Exceptions to privilege.

  1. There is no privilege under section 5715 of this title for a mediation communication that is:
    1. in an agreement evidenced by a record signed by all parties to the agreement;
    2. available to the public under 1 V.S.A. chapter 5, subchapter 3, or made during a session of a mediation which is open, or is required by law to be open, to the public;
    3. a threat or statement of a plan to inflict bodily injury or commit a crime of violence;
    4. intentionally used to plan, attempt to commit, or commit a crime, or conceal an ongoing crime or ongoing criminal activity;
    5. sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, but this exception does not apply where a child or adult protection case is referred by a court to mediation and a public agency participates in the mediation;
    6. sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator; or
    7. sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a party, nonparty participant, or representative of a party based on conduct occurring during a mediation, except as otherwise provided in subsection (c) of this section.
  2. There is no privilege under section 5715 of this title if a court, administrative agency, or arbitration panel finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and the mediation communication is sought or offered in:
    1. a criminal proceeding in Criminal Division of the Superior Court;
    2. a child protection proceeding under 33 V.S.A. chapter 49 or 55;
    3. a protection proceeding involving a vulnerable adult under 33 V.S.A. chapter 69; or
    4. a proceeding to prove a claim to rescind or reform, or a defense to avoid liability on, a contract arising out of the mediation, except as otherwise provided in subsection (c) of this section.
  3. A mediator may not be compelled to provide evidence of a mediation communication referenced in subdivision (a)(7) or (b)(4) of this section.
  4. If a mediation communication is not privileged under subsection (a) or (b) of this section, only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection (a) or (b) of this section does not render the evidence or any other mediation communication discoverable or admissible for any other purpose.

HISTORY: Added 2005, No. 126 (Adj. Sess.), § 1; amended 2009, No. 154 (Adj. Sess.), § 238.

History

Revision note

—2007. In subsec. (c), substituted “(b)(4)” for “(b)(2)” to correct a statutory cross-reference.

Amendments

—2009 (Adj. Sess.) Subdiv. (b)(1): Substituted “criminal division of the superior court” for “district court”.

§ 5718. Mediator report; disclosure; background.

  1. A mediator may not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, agency, or other authority that may make a ruling on the dispute that is the subject of the mediation, but a mediator may disclose:
    1. whether the case is not appropriate for mediation, whether the mediation occurred or has terminated, whether a settlement was reached, and attendance;
    2. a mediation communication as permitted under section 5717 of this title; or
    3. a mediation communication evidencing abuse, neglect, abandonment, or exploitation of a child or vulnerable adult to a public agency responsible for protecting such individuals against such mistreatment.
  2. A communication made in violation of subsection (a) of this section may not be considered by a court or other tribunal.
  3. Subsections (d), (e), (f), and (g) of this section do not apply to an individual acting as a judge.
  4. Before accepting a mediation, an individual who is requested to serve as a mediator shall:
    1. make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a party or foreseeable participant in the mediation; and
    2. disclose as soon as is practicable before accepting a mediation any such fact known.
  5. If a mediator learns any fact described in subdivision (d)(1) of this section after accepting a mediation, the mediator shall disclose as soon as is practicable.
  6. A mediator shall be impartial, unless, after disclosure of the facts required in subsections (d) and (e) of this section, the parties agree otherwise.
  7. A person who is requested to serve as a mediator shall disclose the mediator’s qualifications to mediate a dispute if requested to do so by a party.
  8. A person who violates subsection (d), (e), or (f) of this section is precluded from asserting a privilege under section 5715 of this title.
  9. Unless otherwise required by law, no special qualification by background or profession is necessary to be a mediator under this chapter.

HISTORY: Added 2005, No. 126 (Adj. Sess.), § 1.

§ 5719. Nonparty participation in mediation.

An attorney or other individual designated by a party may accompany the party to and participate in a mediation. A waiver of participation given before the mediation may be rescinded.

HISTORY: Added 2005, No. 126 (Adj. Sess.), § 1.

§ 5720. Confidentiality.

Unless subject to 1 V.S.A. chapter 5, subchapter 2 or 3, mediation communications are confidential to the extent agreed to by the parties or provided by law.

HISTORY: Added 2005, No. 126 (Adj. Sess.), § 1.

§ 5721. Relation to Electronic Signature in Global and National Commerce Act.

This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act (Act), 15 U.S.C. § 7001(c) , except that nothing in this chapter modifies, limits, or supersedes Section 101(c) of the Act nor authorizes electronic delivery of any of the notices described in Section 103(b) of the Act.

HISTORY: Added 2005, No. 126 (Adj. Sess.), § 1.

§ 5722. Severability clause.

If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and, to this end, the provisions of this chapter are severable.

HISTORY: Added 2005, No. 126 (Adj. Sess.), § 1.

§ 5723. Application to existing agreements or referrals.

  1. This chapter governs a mediation pursuant to a referral or an agreement to mediate made on or after July 1, 2006.
  2. On or after July 1, 2008, this chapter governs an agreement to mediate whenever made.

HISTORY: Added 2005, No. 126 (Adj. Sess.), § 1.

Chapter 195. Nuisance Suits Against Agricultural Activities

ANNOTATIONS

Cited.

Cited in Coty v. Ramsey Associates, Inc., 149 Vt. 451, 546 A.2d 196, 1988 Vt. LEXIS 48 (1988).

Law Reviews —

For note relating to preservation of farmlands, see 11 Vt. L. Rev. 603 (1986).

§ 5751. Legislative findings and purpose.

The General Assembly finds that agricultural production is a major contributor to the State’s economy; that agricultural lands constitute unique and irreplaceable resources of statewide importance; that the continuation of existing and the initiation of new agricultural activities preserve the landscape and environmental resources of the State, contribute to the increase of tourism, and further the economic welfare and self-sufficiency of the people of the State; and that the encouragement, development, improvement, and preservation of agriculture will result in a general benefit to the health and welfare of the people of the State. In order for the agricultural industry to survive in this State, farms will likely change, adopt new technologies, and diversify into new products, which for some farms will mean increasing in size. The General Assembly finds that agricultural activities are potentially subject to lawsuits based on the theory of nuisance, and that these suits encourage and could force the premature removal of the farmlands and other farm resources from agricultural use. It is the purpose of this chapter to protect reasonable agricultural activities conducted on the farm from nuisance lawsuits.

HISTORY: Added 1981, No. 68 , eff. May 1, 1981; amended 2003, No. 149 (Adj. Sess.), § 12, eff. June 3, 2004.

History

Amendments

—2003. Section amended generally.

ANNOTATIONS

Applicability.

Vermont’s right-to-farm law did not apply where the activities of defendants giving rise to plaintiffs’ nuisance claim commenced after plaintiffs had purchased their home. Trickett v. Ochs, 2003 VT 91, 176 Vt. 89, 838 A.2d 66, 2003 Vt. LEXIS 273 (2003).

§ 5752. Definitions.

For the purpose of this chapter, “agricultural activity” means, but is not limited to:

  1. the cultivation or other use of land for producing food, fiber, Christmas trees, maple sap, or horticultural and orchard crops; the raising, feeding, or management of domestic animals as defined in 6 V.S.A. § 1151 or bees; the operation of greenhouses; the production of maple syrup; the on-site storage, preparation, and sale of agricultural products principally produced on the farm; and the on-site production of fuel or power from agricultural products or wastes principally produced on the farm;
  2. the preparation, tilling, fertilization, planting, protection, irrigation, and harvesting of crops; the composting of material principally produced by the farm or to be used at least in part on the farm; the ditching and subsurface drainage of farm fields and the construction of farm ponds; the handling of livestock wastes and by-products; and the on-site storage and application of agricultural inputs, including lime, fertilizer, and pesticides.

HISTORY: Added 1981, No. 68 , eff. May 1, 1981; amended 2003, No. 149 (Adj. Sess.), § 12, eff. June 3, 2004.

History

Revision note

—2013. In subdiv. (2), deleted “but not limited to” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2003 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Cited.

Cited in Trickett v. Ochs, 2003 VT 91, 176 Vt. 89, 838 A.2d 66, 2003 Vt. LEXIS 273 (2003).

§ 5753. Agricultural activities; protection from nuisance lawsuits.

    1. Agricultural activities shall be entitled to a rebuttable presumption that the activity does not constitute a nuisance if the agricultural activity meets all of the following conditions: (a) (1) Agricultural activities shall be entitled to a rebuttable presumption that the activity does not constitute a nuisance if the agricultural activity meets all of the following conditions:
      1. it is conducted in conformity with federal, State, and local laws and regulations (including required agricultural practices);
      2. it is consistent with good agricultural practices;
      3. it is established prior to surrounding nonagricultural activities; and
      4. it has not significantly changed since the commencement of the prior surrounding nonagricultural activity.
    2. The presumption that the agricultural activity does not constitute a nuisance may be rebutted by a showing that the activity has a substantial adverse effect on health, safety, or welfare, or has a noxious and significant interference with the use and enjoyment of the neighboring property.
  1. Nothing in this section shall be construed to limit the authority of State or local boards of health to abate nuisances affecting the public health.

HISTORY: Added 1981, No. 68 , eff. May 1, 1981; amended 2003, No. 149 (Adj. Sess.), § 12, eff. June 3, 2004.

History

Revision note

—2015. In subdiv. (a)(1)(A), substituted “required agricultural practices” for “accepted agricultural practices” in accordance with 2015, No. 64 , § 13.

Amendments

—2003 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Cited.

Cited in Trickett v. Ochs, 2003 VT 91, 176 Vt. 89, 838 A.2d 66, 2003 Vt. LEXIS 273 (2003).

§ 5754. Severability.

If any provision of this chapter is held invalid, the invalidity does not affect other provisions of this chapter that can be given effect without the invalid provision, and for this purpose, the provisions of this chapter are severable.

HISTORY: Added 2003, No. 149 (Adj. Sess.), § 12, eff. June 3, 2004.

Chapter 196. Vermont Right to Conduct Forestry Operations

§ 5755. Findings.

The General Assembly finds that:

  1. Private and public forestlands:
    1. constitute unique and irreplaceable resources, benefits, and values of statewide importance;
    2. contribute to the protection and conservation of wildlife, wildlife habitat, air, water, and soil resources of the State;
    3. provide a resource for the State constitutional right to hunt, fish, and trap;
    4. mitigate the effects of climate change; and
    5. result in general benefit to the health and welfare of the people of the State.
  2. The forest products industry, including maple sap collection:
    1. is a major contributor to and is valuable to the State’s economy by providing jobs to its citizens;
    2. is essential to the manufacture of forest products that are used and enjoyed by the people of the State; and
    3. benefits the general welfare of the people of the State.
  3. Private and public forestlands are critical for and contribute significantly to the State’s outdoor recreation and tourism economies.
  4. The economic management of public and private forestlands contributes to sustaining long-term forest health, integrity, and productivity.
  5. Forestry operations are adversely impacted by the encroachment of urban, commercial, and residential land uses throughout the State that result in forest fragmentation and conversion and erode the health and sustainability of remaining forests.
  6. As a result of encroachment on forests, conflicts have arisen between traditional forestry land uses and urban, commercial, and residential land uses that threaten to permanently convert forestland to other uses, resulting in an adverse impact to the economy and natural environment of the State.
  7. The encouragement, development, improvement, and continuation of forestry operations will result in a general benefit to the health and welfare of the people of the State and the State’s economy.
  8. The forest products industry, in order to survive, likely will need to change, adopt new technologies, and diversify into new products.
  9. Conventional forestry practices, including logging, transportation, and processing of forest products may be subject to unnecessary or adversarial lawsuits based on the theory of nuisance. Nuisance suits could encourage and result in the conversion of forestland and loss of the forest products industry.
  10. It is in the public interest of the people of the State to ensure that lawfully conducted conventional forestry practices are protected and encouraged and are not subject to public and private nuisance actions arising out of conflicts between forestry operations and urban, commercial, and residential uses.

HISTORY: Added 2017, No. 198 (Adj. Sess.), § 1, eff. May 30, 2018.

§ 5756. Definitions.

As used in this chapter:

  1. “Commissioner” means the Commissioner of Forests, Parks and Recreation.
  2. “Conventional forestry practices” means:
    1. forestry operations;
    2. a change in ownership or size of a parcel on which a forestry operation is being conducted;
    3. cessation or interruption of a forestry operation or a change in a forestry operation, including a change in the type of a forestry operation;
    4. enrollment in governmental forestry or conservation programs;
    5. adoption of new forestry technology;
    6. construction, maintenance, and repair of log landings, logging roads, and skid trails;
    7. visual changes due to the removal, storage, or stockpiling of vegetation or forest products;
    8. noise from forestry equipment used as part of a forestry operation; or
    9. the transport or trucking of forest products or of equipment on, to, or from the site of a forestry operation.
  3. “Forest product” means logs; pulpwood; veneer; bolt wood; wood chips; stud wood; poles; pilings; biomass; fuel wood; maple sap; or bark.
  4. “Forestry operation” means activities related to the management of forests, including timber harvests; removal, storage, or stockpiling of vegetation or timber; pruning; planting; lumber processing with portable sawmills; reforestation; pest, disease, and invasive species control; wildlife habitat management; and fertilization. “Forestry operation” includes one or both of the following:
    1. the primary processing of forest products on a parcel where a timber harvest occurs; and
    2. the primary processing of forest products at a site that is not the harvest site, provided that:
      1. the person conducting the forestry operations owns or has permission to use the site for the forestry operation;
      2. the forestry operation was established prior to surrounding activities that are not forestry operations;
      3. the site is used by the forestry operation for 12 or fewer months in any two-year period or 24 or fewer months in any five-year period;
      4. the forestry operation complies with all applicable law; and
      5. only portable, nonpermanent equipment is used to process the forest products at the site.
  5. “Timber” means trees, saplings, seedlings, and sprouts from which trees of every size, nature, kind, and description may grow.
  6. “Timber harvest” means a forestry operation involving the harvesting of timber.

HISTORY: Added 2017, No. 198 (Adj. Sess.), § 1, eff. May 30, 2018.

§ 5757. Forestry operations; protection from nuisance lawsuits.

  1. Except as provided for under subsections (b) and (c) of this section, a person conducting a conventional forestry practice shall be entitled to a rebuttable presumption that the conventional forestry practice does not constitute a public or private nuisance if the person conducts the conventional forestry practice in compliance with the following:
    1. the Acceptable Management Practices for Maintaining Water Quality on Logging Jobs in Vermont as adopted by the Commissioner under 10 V.S.A. § 2622 ; and
    2. other applicable law.
  2. The presumption under subsection (a) of this section that a person conducting a conventional forestry practice does not constitute a nuisance may be rebutted by showing:
    1. a nuisance resulted from the negligent operation of the conventional forestry practice;
    2. a nuisance resulted from a violation of State, federal, or other applicable law during the conduct of the conventional forestry practice; or
    3. clear and convincing evidence that the conventional forestry practice has a substantial adverse effect on the health, safety, or welfare of the complaining party.
  3. Nothing in this section shall be construed to limit the authority of State or local boards of health to abate nuisances affecting the public health.

HISTORY: Added 2017, No. 198 (Adj. Sess.), § 1, eff. May 30, 2018.

Chapter 197. Good Samaritan Law for Donations of Food

§ 5761. Definitions.

As used in this chapter:

  1. “Perishable foods” means any food that may spoil or otherwise become unfit for human consumption because of its nature, type, or physical condition. Perishable food includes fresh or processed meats, wild game, fish, poultry, seafood, dairy products, bakery products, eggs in the shell, fresh fruits or vegetables, and foods that have been packaged, refrigerated, or frozen.
  2. “Canned foods” means any canned food that has been hermetically sealed and commercially processed and prepared for human consumption, including canned or preserved fruits, vegetables, or other articles of food.  There is specifically excluded for purposes of this section canned goods that are rusted, leaking, swollen, or canned goods that are defective or cannot be otherwise offered for sale to members of the general public.
  3. “Farm products” means any agricultural, dairy, or horticultural product, or any product designed or intended for human consumption or prepared principally from an agricultural, dairy, or horticultural product.
  4. “Charitable or nonprofit organization” means any organization which is exempt from federal or State income taxation, except that the term does not include organizations which sell or offer to sell such donated items of food.

HISTORY: Added 1983, No. 209 (Adj. Sess.); amended 1997, No. 36 , § 1.

History

Amendments

—1997. Subdiv. (1): Inserted “wild game, fish” preceding “poultry” in the second sentence.

§ 5762. Liability for canned or perishable foods or farm products distributed free of charge.

  1. Notwithstanding any other provision of law, a good-faith donor of any canned or perishable food or farm product, apparently fit for human consumption, who donates to a person for consumption, or to a bona fide charitable or nonprofit organization for free distribution, shall not be subject to criminal penalty or civil damages arising from the condition of the food, if the donor reasonably inspects the food at the time of donation and finds the food apparently fit for human consumption and unless the donor has actual or constructive knowledge that the food is adulterated, tainted, contaminated, or harmful to the health or well-being of the person consuming the food.
  2. This section includes the good-faith donation of canned or perishable food or farm products not readily marketable due to appearance, freshness, grade, surplus, or other considerations, but shall not be deemed or construed to restrict the authority of any lawful agency to otherwise regulate or ban the use of such food for human consumption.

HISTORY: Added 1983, No. 209 (Adj. Sess.).

Chapter 199. Defamation

§ 5771. Defamation action; attorney’s fees.

If judgment is rendered for a defendant in a defamation action and the court finds that the action was frivolous and without merit, the court may award costs and reasonable attorney’s fees to the defendant.

HISTORY: Added 1985, No. 244 (Adj. Sess.).

Chapter 201. Immunity from Liability

§ 5781. Nonprofit organizations.

A person who serves without compensation as a director, officer, or trustee of a nonprofit organization qualified as tax-exempt under Section 501(c) of the Internal Revenue Code of 1986, as from time to time amended, shall not be held personally liable for damages resulting from:

  1. any act or omission within the scope of the person’s official functions or duties which is done in good faith, unless it constitutes gross negligence or an intentional tort; however, this subdivision shall not protect a person from liability for damages which result from the operation of a motor vehicle;
  2. any act or omission of an employee of the nonprofit organization; or
  3. any act or omission of another director, officer, or trustee.

HISTORY: Added 1987, No. 45 , eff. May 13, 1987.

History

References in text.

Section 501 of the Internal Revenue Code of 1986, referred to in the introductory paragraph, is codified as 26 U.S.C. § 501.

§ 5782. Libraries.

A person employed by a library with or without compensation shall not be held personally liable for damages resulting from:

  1. information contained in any library materials; or
  2. library services provided to library patrons in the course of his or her duties.

HISTORY: Added 1989, No. 28 , § 3.

§ 5783. Hazardous materials accidents.

  1. No action for damages to person or property may be maintained against a person who provides emergency assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened accidental discharge of hazardous materials, or in preventing, containing, or cleaning up or in attempting to prevent, contain, or clean up any such discharge. This section shall apply to assistance or advice provided at or to persons at the scene or in the immediate vicinity of the actual or threatened discharge only.
  2. Subsection (a) of this section shall not apply:
    1. to any person, or the employer or employee of any person, whose act or omission proximately caused in whole or in part the original actual or threatened discharge;
    2. to any person, or the employer or employee of any person, who receives or expects to receive compensation or remuneration, other than reimbursement for out-of-pocket expenses, for services in rendering such assistance or advice from the recipient of such assistance or advice, from a person whose act or omission caused in whole or in part the discharge, or from someone acting on behalf of such persons; or
    3. to any person who is not qualified by training, education, or experience, unless the person is supervised by a person who is so qualified.
  3. As used in this section:
    1. “Discharge” includes leakage, seepage, or other release.
    2. “Hazardous materials” include all materials and substances which are now or hereafter designated or defined as hazardous by any state or federal law or by the regulations of any state or federal government agency.
    3. “Person” includes any individual, partnership, corporation, association, or other entity, including a person who coordinates or provides advice and assistance in conjunction with an emergency response program.
  4. Nothing in this section shall be construed to limit or otherwise affect the liability of any person for damages resulting from that person’s gross negligence or willful misconduct.

HISTORY: Added 1991, No. 192 (Adj. Sess.).

CROSS REFERENCES

Civil enforcement of environmental laws generally, see 10 V.S.A. § 8221 .

Liability for hazardous materials generally, see 10 V.S.A. § 6615 .

Liability for low-level radioactive waste accidents, see 10 V.S.A. § 7069 , Art. VIII, Sec. 8.03.

Liability of emergency response personnel generally, see 20 V.S.A. § 20 .

§ 5784. Forcible entry of motor vehicle to remove unattended child or animal.

A person who forcibly enters a motor vehicle for the purpose of removing a child or animal from the motor vehicle shall not be subject to civil liability for damages arising from the forcible entry if the person:

  1. determines the motor vehicle is locked or there is otherwise no reasonable method for the child or animal to exit the vehicle;
  2. reasonably and in good faith believes that forcible entry into the motor vehicle is necessary because the child or animal is in imminent danger of harm;
  3. notifies local law enforcement, fire department, or a 911 operator prior to forcibly entering the vehicle;
  4. remains with the child or animal in a safe location reasonably close to the motor vehicle until a law enforcement, fire, or other emergency responder arrives;
  5. places a notice on the vehicle that the authorities have been notified and specifying the location of the child or animal; and
  6. uses no more force to enter the vehicle and remove the child or animal than necessary under the circumstances.

HISTORY: Added 2015, No. 147 (Adj. Sess.), § 24.

Chapter 203. Limitations on Landowner Liability

§ 5791. Purpose.

The purpose of this chapter is to encourage owners to make their land and water available to the public for no consideration for recreational uses by clearly establishing a rule that an owner shall have no greater duty of care to a person who, without consideration, enters or goes upon the owner’s land for a recreational use than the owner would have to a trespasser.

HISTORY: Added 1997, No. 110 (Adj. Sess.), § 1.

History

1997, No. 110 (Adj. Sess.), § 2, provided: “This act [which added this chapter and repealed section 5212 of Title 10] shall be liberally construed to accomplish the purpose set forth in Sec. 1 ( 12 V.S.A. § 5791 ) to limit an owner’s liability and shall not be construed to extend an owner’s liability beyond that which would exist if this act had not been adopted.”

ANNOTATIONS

Applicability.

Recreational Use Statute did not apply in a case where plaintiff rode his motorcycle into a cable strung across a beach access road at the lakeside residential development where he lived, as the land was not open to members of the general public, but only to the development’s residents and their guests. Crogan v. Pine Bluff Estates, 2021 VT 42, — Vt. —, 257 A.3d 247, 2021 Vt. LEXIS 56 (Vt. 2021).

Recreational Use Statute applied to a daycare’s use of defendants’ land and shielded them from liability, as the daycare used the land without consideration, the daycare used the land for recreational and educational purposes, and the land was “open and undeveloped” and despite defendants having once owned the daycare property, which they sold to family members, and despite a sandbox, mowed pathways, and a brook bridge being on the property, and despite the fact that the daycare owners might have profited from the use of the land. Nolan v. Fishman, 2019 VT 63, 211 Vt. 1, 218 A.3d 1034, 2019 Vt. LEXIS 118 (2019).

Inclusion of “guiding” as a protected recreational use in the Recreational Use Statute indicates that persons using the land may profit from their use. The statute does not become inapplicable to landowners simply because a third party may have earned some level of profit from its use of the land. Nolan v. Fishman, 2019 VT 63, 211 Vt. 1, 218 A.3d 1034, 2019 Vt. LEXIS 118 (2019).

Construction.

Nothing in the statutory language of the Recreational Use Statute supports a conclusion that the relationship status between the landowner and the land user defeats the statute’s protections. Nolan v. Fishman, 2019 VT 63, 211 Vt. 1, 218 A.3d 1034, 2019 Vt. LEXIS 118 (2019).

§ 5792. Definitions.

As used in this chapter:

  1. “Consideration” means a price, fee, or other charge paid to or received by the owner in return for the permission to enter upon or to travel across the owner’s land for recreational use. Consideration shall not include:
    1. compensation paid to or a tax benefit received by the owner for granting a permanent recreational use easement;
    2. payment or provision for compensation to be paid to the owner for damage caused by recreational use; or
    3. contributions in services or other consideration paid to the owner to offset or insure against damages sustained by an owner from the recreational use or to compensate the owner for damages from recreational use.
    1. “Land” means: (2) (A) “Land” means:
      1. open and undeveloped land, including paths and trails;
      2. water, including springs, streams, rivers, ponds, lakes, and other water courses;
      3. fences; or
      4. structures and fixtures used to enter or go upon land, including bridges and walkways.
    2. “Land” does not include:
      1. areas developed for commercial recreational uses;
      2. equipment, machinery, or personal property; and
      3. structures and fixtures not described in subdivision (A)(iii) or (iv) of this subdivision (2).
  2. “Owner” means a person who owns, leases, licenses, or otherwise controls ownership or use of land, and any employee or agent of that person.
  3. “Recreational use” means an activity undertaken for recreational, educational, or conservation purposes, and includes hunting, fishing, trapping, guiding, camping, biking, in-line skating, jogging, skiing, snowboarding, swimming, diving, water sports, rock climbing, hang gliding, caving, boating, hiking, riding an animal or a vehicle, picking wild or cultivated plants, picnicking, gleaning, rock collecting, nature study, outdoor sports, noncommercial aviation, visiting or enjoying archaeological, scenic, natural, or scientific sites, or other similar activities. “Recreational use” also means any noncommercial activity undertaken without consideration to create, protect, preserve, rehabilitate, or maintain the land for recreational uses.

HISTORY: Added 1997, No. 110 (Adj. Sess.), § 1; amended 2011, No. 99 (Adj. Sess.), § 1.

History

Amendments

—2011 (Adj. Sess.). Subdiv. (4): inserted “snowboarding” following “skiing” and “noncommercial aviation” following “outdoor sports” in the first sentence.

ANNOTATIONS

Open and undeveloped.

Recreational Use Statute applied to a daycare’s use of defendants’ land and shielded them from liability, as the daycare used the land without consideration, the daycare used the land for recreational and educational purposes, and the land was “open and undeveloped” and despite defendants having once owned the daycare property, which they sold to family members, and despite a sandbox, mowed pathways, and a brook bridge being on the property, and despite the fact that the daycare owners might have profited from the use of the land. Nolan v. Fishman, 2019 VT 63, 211 Vt. 1, 218 A.3d 1034, 2019 Vt. LEXIS 118 (2019).

§ 5793. Liability limited.

  1. Land.   An owner shall not be liable for property damage or personal injury sustained by a person who, without consideration, enters or goes upon the owner’s land for a recreational use unless the damage or injury is the result of the willful or wanton misconduct of the owner.
  2. Equipment, fixtures, machinery, or personal property.
    1. Unless the damage or injury is the result of the willful or wanton misconduct of the owner, an owner shall not be liable for property damage or personal injury sustained by a person who, without consideration and without actual permission of the owner, enters or goes upon the owner’s land for a recreational use and proceeds to enter upon or use:
      1. equipment, machinery, or personal property; or
      2. structures or fixtures not described in subdivision 5792(2)(A)(iii) or (iv) of this title.
    2. Permission to enter or go upon an owner’s land shall not, by itself, include permission to enter or go upon structures or to go upon or use equipment, fixtures, machinery, or personal property.
  3. Posting.   An owner may post a sign warning against dangers on the owner’s land or water. An owner who posts a sign pursuant to this subsection shall not be liable for any damage or injury allegedly arising out of the posting unless the damage or injury is the result of the willful or wanton misconduct of the owner.

HISTORY: Added 1997, No. 110 (Adj. Sess.), § 1; amended 2017, No. 136 (Adj. Sess.), § 1, eff. May 21, 2018.

History

Amendments

—2017 (Adj. Sess.) Subsec. (c): Added.

See note under § 5791 of this title.

§ 5794. Landowner protection.

  1. The fact that an owner has made land available without consideration for recreational uses shall not be construed to:
    1. limit the property rights of owners;
    2. limit the ability of an owner and a recreational user of the land to enter into agreements for the recreational use of the land to vary or supplement the duties and limitations created in this chapter;
    3. support or create any claim or right of eminent domain, adverse possession, or other prescriptive right or easement or any other land use restriction;
    4. alter, modify, or supersede the rights and responsibilities under 20 V.S.A. chapter 191 (animal control), and 20 V.S.A. chapter 193 (domestic pet or wolf-hybrid control); under 23 V.S.A. chapter 29 (snowmobiles), and 23 V.S.A. chapter 31 (all-terrain vehicles); under 19 V.S.A. chapter 23 (bicycle routes); and under 10 V.S.A. chapter 20 (Vermont trail system);
    5. extend any assurance that the land is safe for recreational uses or create any duty on an owner to inspect the land to discover dangerous conditions;
    6. relieve a person making recreational use of land from the obligation the person may have in the absence of this chapter to exercise due care for the person’s own safety in the recreational use of the land.
  2. Nothing in this chapter shall create any presumption or inference of permission or consent to enter upon an owner’s land for any purpose.
  3. For the purposes of protecting landowners who make land available for recreational use to members of the public for no consideration pursuant to this chapter, the presence of one or more of the following on land does not by itself preclude the land from being “open and undeveloped”: posting of the land, fences, or agricultural or forestry-related structures.

HISTORY: Added 1997, No. 110 (Adj. Sess.), § 1; amended 1997 No. 147 (Adj. Sess.), § 190a.

History

Amendments

—1997 (Adj. Sess.). Subsec. (c): Added.

See note under § 5791 of this title.

§ 5795. Exceptions.

This chapter shall not apply to lands owned by a municipality or the State.

HISTORY: Added 1997, No. 110 (Adj. Sess.), § 1.

Part 10. Oaths and Forms

Chapter 211. Oaths

Subchapter 1. Forms of Oaths

§ 5801. Forms of oaths prescribed.

The forms set out in this chapter shall be the forms of oaths to be administered to officers and persons as hereinafter mentioned.

History

Source.

V.S. 1947, § 10,611, opening paragraph. P.L. § 9112. G.L. § 7473. P.S. § 6267. V.S. § 5418. R.L. § 4551. G.S. 128, § 1. R.S. 109, § 1. R. 1797, p. 539. R. 1787, p. 105.

Revision note—

“The following” was changed to “The forms set out in this chapter.”

§ 5802. Oath to be administered to grand jury.

You solemnly swear that you will diligently inquire and true presentment make of all such matters and things as shall come to your knowledge, according to your charge. The counsel of the State, your own counsel, and that of your fellows, you shall keep secret. You will present no man for envy, hatred, or malice; neither will you leave any person unpresented for love, fear, favor, affection, or hope of reward; but you will present things truly as they come to your knowledge, to the best of your understanding, according to the laws of this State. So help you God.

History

Source.

V.S. 1947, § 10,611, Form 1. P.L. § 9112, Form 1. G.L. § 7473, Form 1. P.S. § 6267, Form 1. V.S. § 5418, Form 1. R.L. § 4551. G.S. p. 761. R.S. p. 505. R. 1797, p. 539. R. 1787, p. 105.

§ 5803. Oath to be administered to petit jurors impaneled to try civil causes in Superior Courts.

You solemnly swear that you will well and truly try each and every issue which may be given you in charge during the present term of this court, agreeably to the evidence given you in court, and the laws of this State, and true verdicts give; your own counsel and that of your fellows you will duly observe and keep; you will say nothing to any person about the business and matters you may at any time have in charge, but to your fellow jurors, nor will you suffer any one to speak to you about the same but in court; and when you have agreed on a verdict, you will keep it secret until you deliver it in court. So help you God.

History

Source.

V.S. 1947, § 10,611, Form 2. P.L. § 9112, Form 2. G.L. § 7473, Form 2. P.S. § 6267, Form 2. V.S. § 5418, Form 2. R.L. § 4551. G.S. p. 762. R.S. p. 505. 1827, No. 10 . R. 1797, p. 540. R. 1787, p. 105.

Revision note—

In the section heading, reference to “county court” was changed to “superior court” pursuant to 1973, No. 193 (Adj. Sess.), § 3.

ANNOTATIONS

Examination by court.

A verdict should not be overthrown solely on basis of affidavits that a juror had discussed the case with non-juror during trial and had already made up his mind; proper proceedings to ascertain the truth of the statements in the affidavit should immediately be had, and the other party afforded an opportunity to meet the statements in the affidavits. Isabelle v. Proctor Hospital, 129 Vt. 500, 282 A.2d 837, 1971 Vt. LEXIS 298 (1971).

Where, both during trial and after verdict but before judgment, plaintiffs in medical malpractice case presented affidavits that a juror had talked to affiants and other non-jurors about the case during the trial and had stated he had made up his mind that plaintiffs should recover nothing, it was error for the court, which declined to inquire into the affidavit presented during trial, to decline to inquire into the affidavit presented after verdict, but such error was not fatal to the verdict where the facts could be determined and the issue resolved on remand in disposing of plaintiffs’ motion to set verdict aside and grant a new trial. Isabelle v. Proctor Hospital, 129 Vt. 500, 282 A.2d 837, 1971 Vt. LEXIS 298 (1971).

Where plaintiffs in medical malpractice action presented, during trial, affidavit of a non-juror that one of the jurors had discussed the case with affiant and others not on the jury and had stated that he had made up his mind that plaintiffs should recover nothing, and plaintiffs, with agreement of defendants, moved for replacement of the juror with an alternate, court should have held an immediate inquiry to determine the truth of the statements in the affidavit, rather than denying the motion without hearing. Isabelle v. Proctor Hospital, 129 Vt. 500, 282 A.2d 837, 1971 Vt. LEXIS 298 (1971).

Court’s examination of individual jurors concerning misconduct should only be undertaken after it is satisfied there is probable cause for setting aside the verdict and the inquiry should be conducted in the presence of opposing counsel. Bellows Falls Village Corp. v. State Highway Board, 123 Vt. 408, 190 A.2d 695, 1963 Vt. LEXIS 139 (1963).

Juror’s misconduct.

The expression of an opinion during trial by a juror concerning the merits of the case, or probable outcome, to anyone but a fellow juror, disqualifies him from participating in the result and will destroy the verdict. Isabelle v. Proctor Hospital, 129 Vt. 500, 282 A.2d 837, 1971 Vt. LEXIS 298 (1971).

Private view of situs of property in dispute may be sufficient cause to invalidate verdict otherwise invulnerable. Bellows Falls Village Corp. v. State Highway Board, 123 Vt. 408, 190 A.2d 695, 1963 Vt. LEXIS 139 (1963).

Introduction of inflammatory newspaper editorial into jury room during consideration of cause is adequate justification for ordering new trial. Bellows Falls Village Corp. v. State Highway Board, 123 Vt. 408, 190 A.2d 695, 1963 Vt. LEXIS 139 (1963).

Time oath administered.

Defendant was not entitled to have jury verdict set aside, in civil case, on ground that record did not disclose that jury was sworn to consider cause prior to time that case was submitted to them, where jurors were sworn at time of general charge to jury by court and, at that time, oath prescribed by this section was administered to entire panel of jurors by clerk. B. B & P. Rambler & Sports Car Center v. Dawson, 126 Vt. 392, 233 A.2d 50, 1967 Vt. LEXIS 207 (1967).

§ 5804. Oath to be administered to petit jurors in criminal causes.

You solemnly swear that, without respect to persons or favor of any man, you will well and truly try and true deliverance make, between the State of Vermont and the prisoner at the bar, whom you shall have in charge, according to the evidence given you in court and the laws of the State. So help you God.

History

Source.

V.S. 1947, § 10,611, Form 3. P.L. § 9112, Form 3. G.L. § 7473, Form 3. P.S. § 6267, Form 3. V.S. § 5418, Form 3. R.L. § 4551. G.S. p. 762. R.S. p. 506. R. 1797, p. 540. R. 1787, p. 105.

ANNOTATIONS

Constitutionality.

The oath prescribed by this section, being almost exactly the same as that regularly administered to juries in criminal cases at the common law is in keeping with Vermont constitution, ch. 1, art. 10, since the constitution in guaranteeing jury trial contemplated a jury trial as known to the common law. State v. Graves, 119 Vt. 205, 122 A.2d 840, 1956 Vt. LEXIS 101 (1956).

Waiver.

Where jurors did not take the oath prescribed for criminal causes, but at beginning of term took that prescribed for civil causes, and respondent’s counsel was unaware of the omission until some progress had been made in the trial, and respondent was not present at trial and had no knowledge of the omission, there was no waiver of respondent’s rights in proceeding with the trial. State v. Davis, 52 Vt. 376, 1880 Vt. LEXIS 145 (1880).

§ 5805. Repealed. 2009, No. 154 (Adj. Sess.), § 238.

History

Former § 5805. Former § 5805, relating to contents of juror’s oath for civil cases in District Court, was derived from V.S. 1947, § 10,611, Form 4; P.L. § 9112, Form 4; G.L. § 7473, Form 4; 1917, No. 254 , § 7246, Form 4; P.S. § 6267, Form 4; V.S. § 5418, Form 4; R.L. § 4551; G.S. p. 762; R.S. p. 506; R. 1797, pp. 540, 541; 1789, p. 13; R. 1787, p. 107.

§ 5806. Oath to be administered to officer attending grand jury.

You solemnly swear that, as officer of the grand jury, you will keep their counsel and that of the State, and that you will not disclose anything relative to their proceedings. So help you God.

History

Source.

V.S. 1947, § 10,611, Form 5. P.L. § 9112, Form 5. G.L. § 7473, Form 5. P.S. § 6267, Form 5. V.S. § 5148, Form 5. R.L. § 4551. G.S. p. 762. R.S. p. 506.

§ 5807. Oath to be administered to officer taking charge of jury in Superior Court.

You solemnly swear that, during the present term of this court, when you take charge of the jury impaneled for the trial of any cause, you will, after they have been charged by the court, keep them together in some suitable place; that you will suffer no person to speak to them upon the matters submitted to their charge until they are agreed, nor will you speak to them yourself about the same, but in court, or to ask them whether they are agreed; and that you will not, in any cause, disclose the verdict of the jury or any conversation they may have respecting the cause they may have in charge, until they have delivered up their verdict in court, or been released from their charge by order of court. So help you God.

History

Source.

V.S. 1947, § 10,611, Form 6. P.L. § 9112, Form 6. G.L. § 7473, Form 6. P.S. § 6267, Form 6. V.S. § 5418, Form 6. R.L. § 4551. G.S. p. 762. R.S. p. 506. 1827, No. 10 , § 2. 1806, p. 24. R. 1797, p. 541.

Revision note—

In the section heading, reference to “county court” was changed to “superior court” pursuant to 1973, No. 193 (Adj. Sess.), § 3.

§ 5808. Oath to be administered to officer taking charge of jury in criminal cause, during a recess of the court.

You solemnly swear that you will keep together the persons composing this jury during any recess of the court, until they return into court, and that, in the meantime, you will suffer no person to speak to them, or speak to them yourself, concerning the cause on trial or any matter thereto relating. So help you God.

History

Source.

V.S. 1947, § 10,611, Form 7. P.L. § 9112, Form 7. G.L. § 7473, Form 7. P.S. § 6267, Form 7. V.S. § 5418, Form 7. 1890, No. 42 . R.L. § 4551. G.S. p. 764. R.S. p. 507.

ANNOTATIONS

Juror-officer conversations.

Officer should not have permitted conversation with jury concerning juror who had made up her mind about the case, but he acted properly in informing the court of the matter, and there was no error where counsel for both sides discussed the matter with the judge, a new juror was seated, defense counsel indicated his satisfaction with the procedure and he did not claim error until after trial. State v. Bartlett, 137 Vt. 400, 407 A.2d 163, 1979 Vt. LEXIS 1008 (1979).

Keeping jury together.

Test of a court officer’s keeping a jury together during recesses is not a literal one requiring each juror to be at all times in the presence of all the others; the real test is whether or not a juror passes from the attendance and control of the court officer. State v. Bartlett, 137 Vt. 400, 407 A.2d 163, 1979 Vt. LEXIS 1008 (1979).

Oath.

Oath provided for by this section must be given a reasonable construction, and it is proper for the jury to communicate its needs through the officer. State v. Bartlett, 137 Vt. 400, 407 A.2d 163, 1979 Vt. LEXIS 1008 (1979).

§ 5809. Repealed. 2009, No. 154 (Adj. Sess.), § 238.

History

Former § 5809. Former § 5809, relating to contents of jury officer’s oath in District Court, was derived from V.S. 1947, § 10,611, Form 8; P.L. § 9112, Form 8; G.L. § 7473, Form 8; 1917, No. 254 , § 7246, Form 8; P.S. § 6267, Form 8; V.S. § 5418, Form 8. R.L. § 4551; G.S. p. 763; R.S. p. 506.

§ 5810. Oath to be administered to witnesses.

You solemnly swear that the evidence you shall give, relative to the cause now under consideration, shall be the whole truth and nothing but the truth. So help you God.

History

Source.

V.S. 1947, § 10,611, Form 9. P.L. § 9112, Form 9. G.L. § 7473, Form 9. P.S. § 6267, Form 9. V.S. § 5418, Form 9. R.L. § 4551. G.S. p. 763. R.S. p. 530. R. 1797, p. 393, § 7. R. 1797, pp. 541, 542. R. 1787, p. 106.

§ 5811. Oath to be administered to interpreter of testimony.

You solemnly swear that you will justly, truly, and impartially interpret to A. B. the oath about to be administered to him or her, and the testimony he or she shall give relative to the cause now under consideration. So help you God.

History

Source.

V.S. 1947, § 10,611, Form 10. P.L. § 9112, Form 10. G.L. § 7473, Form 10. P.S. § 6267, Form 10. V.S. § 5418, Form 10. R.L. § 4551. G.S. p. 763. R.S. p. 507. R. 1797, p. 541.

§ 5812. Oath to be administered to attorneys.

You solemnly swear (affirm) that you will do no falsehood, nor consent that any be done in court, and if you know of any, you will give knowledge thereof to the judges of the court or some of them, that it may be reformed; that you will not wittingly, willingly, or knowingly promote, sue, or procure to be sued, any false or unlawful suit, or give aid or consent to the same; that you will delay no person for lucre or malice, but will act in the office of attorney within the court, according to your best learning and discretion, with all good fidelity as well to the court as to your client. So help you God (or, “under the pains and penalties of perjury”).

HISTORY: Amended 2019, No. 167 (Adj. Sess.), § 11, eff. October 7, 2020.

History

Source.

V.S. 1947, § 10,611, Form 11. P.L. § 9112, Form 11. G.L. § 7473, Form 11. 1917, No. 254 , § 7246, Form 11. P.S. § 6267, Form 11. V.S. § 5418, Form 11. R.L. § 4551. G.S. p. 763. R.S. p. 507. R. 1797, p. 542. R. 1787, p. 22.

Amendments

—2019 (Adj. Sess.). In the first sentence, inserted “(affirm)” following “swear” and substituted “person” for “man” preceding “for lucre”; and added “(or, ‘under the pains and penalties of perjury’)” in the last sentence.

§ 5813. Oath to be administered to officials, committees, etc.

The form of oath to be administered to persons appointed in pursuance of the provisions of law, to perform any duty or execute any office, commission, or trust whatever, where an oath is required, and a specific form is not provided, shall be as follows:

You solemnly swear that you will faithfully execute the office (duty or trust) of to the best of your judgment and abilities, according to law. So help you God.

Click to view

Or, when the person to be sworn produces to the magistrate a warrant of appointment, commission, or other certificate, the oath may be thus:

You solemnly swear that you will faithfully execute the duties assigned you by this warrant (commission, rule, or other certificate of appointment,) ( as the case may be ) to the best of your judgment and abilities, according to law. So help you God.

History

Source.

V.S. 1947, § 10,611, Form 12. P.L. § 9112, Form 12. G.L. § 7473, Form 12. P.S. § 6267, Form 12. V.S. § 5418, Form 12. R.L. § 4551. G.S. p. 763. R.S. p. 507. R. 1797, pp. 542 to 545. R. 1787, p. 106.

Subchapter 2. Administration of Oaths

§ 5851. Affirmation.

In the administration of an oath, the word “swear” may be omitted, and the word “affirm” substituted, when the person to whom the obligation is administered is religiously scrupulous of swearing, or taking an oath in the prescribed form; and, in such case, the words “so help you God” may be omitted, and the words “under the pains and penalties of perjury” substituted; and a person so affirming shall be considered, for every legal purpose of privilege, qualification, or liability, as having been duly sworn.

History

Source.

V.S. 1947, § 10,612. P.L. § 9113. G.L. § 7474. P.S. § 6268. V.S. § 5419. R.L. § 4552. G.S. 128, § 2. R.S. 109, § 2. R. 1797, p. 398, §§ 1-4. 1794, p. 109. R. 1787, p. 125.

CROSS REFERENCES

“Oath” and “sworn” as including “affirmation” and “affirmed,” see 1 V.S.A. § 127 .

§ 5852. Oaths of office; by whom administered.

When other provision is not made by law, oaths of office may be administered by any Justice of the Supreme Court, Superior judge, assistant judge, justice of the peace, notary public, or the presiding officer, secretary, or clerk of either house of the General Assembly, or by the Governor.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1971, No. 185 (Adj. Sess.), § 169, eff. March 29, 1972; 1991, No. 22 ; 2009, No. 154 (Adj. Sess.), § 88.

History

Source.

V.S. 1947, § 10,613. P.L. § 9114. G.L. § 7475. 1917, No. 254 , § 7248. 1915, No. 1 , § 185. P.S. § 6269. V.S. § 5420. R.L. § 4553. G.S. 128, § 3. R.S. 109, § 3.

Amendments

—2009 (Adj. Sess.) Deleted “judge of the district court” preceding “notary public” and made minor changes in punctuation.

—1991. Inserted “assistant judge” following “superior judge” and added “or by the governor” following “assembly”.

—1971 (Adj. Sess.). Omitted reference to master in chancery.

—1965. Substituted “district” for “municipal” court.

ANNOTATIONS

Generally.

The administration of an oath is a ministerial act. Coolbeth v. Gove, 108 Vt. 499, 189 A. 858, 1937 Vt. LEXIS 152 (1937).

§ 5853. By clerks of courts, referees, etc.

Clerks and registers of courts, committees of the General Assembly, and referees, auditors, commissioners, special masters, and committees appointed by a court of law may administer oaths necessary to be taken for the establishment of truth or the furtherance of justice in any matter coming before such court, board, or commission for investigation.

History

Source.

V.S. 1947, § 10,614. P.L. § 9115. G.L. § 7476. P.S. § 6270. V.S. § 5421. R.L. §§ 1211, 1216, 4554. G.S. 128, § 4. R.S. 109, § 4. 1811, p. 19.

Revision note—

Reference to court of chancery was omitted in view of merger of law and equity pursuant to 1971, No. 185 (Adj. Sess.), § 236. See note set out under 4 V.S.A. § 219 .

Notes to Opinions

Commission of General Assembly.

Members of the highway investigating commission of the General Assembly have no authority under this section to administer oaths to witnesses in matters before the commission for investigation. 1960-62 Vt. Op. Att'y Gen. 116.

This section, read in pari materia with 32 V.S.A. § 1556 , gives no basis for inferring that members of the highway investigating commission have authority to administer oaths in matters before them for investigation. 1960-62 Vt. Op. Att'y Gen. 116.

§ 5854. Oaths, administering by court clerks, justices, notaries, etc.; certification.

The Clerk of the Supreme Court, county clerks, justices of the peace, judges and registers of probate, judges and clerks of the Criminal Division of the Superior Court, notaries public and masters appointed by a Superior Court under an order of referee may administer oaths in all cases where an oath is required, unless a different provision is expressly made by law; and a notary public need not affix his or her official seal to a certificate of an oath administered by him or her. County clerks and clerks of the Criminal Division of the Superior Court may certify the oaths administered by them under the seal of the court.

HISTORY: Amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1971, No. 185 (Adj. Sess.), § 170, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 238.

History

Source.

V.S. 1947, § 10,615. P.L. § 9116. G.L. § 7477. 1917, No. 254 , § 7250. P.S. § 6271. V.S. § 5422. R.L. § 4555. 1870, No. 82 , § 1. G.S. 31, § 24. G.S. 48, § 13. G.S. 128, § 5. 1859, No. 4 , § 2. 1851, No. 34 . 1850, No. 53 , § 2. R.S. 26, § 64.

Amendments

—2009 (Adj. Sess.) Substituted “criminal division of the superior court” for “district court” wherever it appears.

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1971 (Adj. Sess.). Added reference to supreme court clerk and substituted provisions relating to county court for “in chancery”.

—1965. Substituted “district” for “municipal” court.

ANNOTATIONS

Listers’ oath.

This section does not confer authority to administer oath required to be taken to the quadrennial list, because as to that oath “a different position is expressly made” by 32 V.S.A. § 3906 . Meacham v. Newport, 70 Vt. 264, 40 A. 729 (1898), same case 70 Vt. 67, 39 A. 631.

Notes to Opinions

Construction.

Words must appear in a law by which the swearing of a witness must be done in a specific manner or before a specific officer before it can be said that “a different provision is expressly made by law.” 1960-62 Vt. Op. Att'y Gen. 116.

Notaries public.

The only authority to administer oaths held by members of highways investigating commission who are also notaries public in matters before them for investigation is their authority held by them as notaries public. 1960-62 Vt. Op. Att'y Gen. 116.

§ 5855. Oaths and acknowledgments by members of the U.S. Armed Forces.

Whenever an oath of office, oath to an affidavit, deposition, or other written instrument or an acknowledgment of a deed, lease, conveyance, release, or other written instrument is required for use in or in connection with any matter pending in this State, such oaths may be taken before any officer of the U.S. Armed Forces of the rank of captain or rank superior thereto of the Army or equivalent rank in the other branches of service or by a person authorized by law where such oath or acknowledgment is to be taken to administer oaths and the officer or person who administers such oath or takes such acknowledgment shall state such fact thereunder over his or her signature and rank or title.

History

Source.

V.S. 1947, § 10,616. 1944 S., No. 3, § 1.

CROSS REFERENCES

Notaries public, see 24 V.S.A. § 441 et seq.

§ 5856. Storage of judicial oaths.

The Vermont Supreme Court shall adopt a rule which establishes a procedure for the storage of judicial oaths.

HISTORY: Added 1997, No. 121 (Adj. Sess.), § 37.

Chapter 212. Limitation on Liability for Agritourism Activity

§ 5871. Definitions.

As used in this chapter:

    1. “Agritourism activity” means an interactive or passive activity that is carried out for recreational, entertainment, or educational purposes on a farm and includes farming, food production, historical, cultural, pick-your-own, and nature-based activities. (1) (A) “Agritourism activity” means an interactive or passive activity that is carried out for recreational, entertainment, or educational purposes on a farm and includes farming, food production, historical, cultural, pick-your-own, and nature-based activities.
    2. “Agritourism activity” does not include lodging at a farm or shopping at a roadside farm stand or operation exclusively devoted to the sale of merchandise or food at retail.
  1. “Agritourism host” means a person who provides the facilities and equipment necessary to participate in an agritourism activity.
  2. “Farm” means a parcel or parcels of land owned, leased, or managed by a person and devoted primarily to farming that meets the threshold criteria established by the Required Agricultural Practices.
  3. “Farming” has the same meaning as in 10 V.S.A. § 6001(22) .
  4. “Inherent risk” means any danger or condition that is an integral part of, or arises from, an agritourism activity, including:
    1. the propensity of a wild animal or domestic animal to behave in ways that may result in injury or death to persons on or near the wild animal or domestic animal;
    2. a hazard such as a surface or subsurface condition;
    3. a natural condition of land, vegetation, or waters;
    4. the ordinary dangers of structures or equipment used in farming; and
    5. the potential of a participant to act in a negligent way that may contribute to injury or death to the participant or others, such as failing to follow safety procedures or failing to act with reasonable caution while engaging in an agritourism activity.
    1. “Participant” means any individual who is invited to observe or participate in an agritourism activity, regardless of whether the individual paid to observe or participate in the agritourism activity. (6) (A) “Participant” means any individual who is invited to observe or participate in an agritourism activity, regardless of whether the individual paid to observe or participate in the agritourism activity.
    2. “Participant” does not mean an individual who is paid to participate in an agritourism activity.

HISTORY: Added 2021, No. 31 , § 1.

§ 5872. Limitation on duty to protect.

  1. Except as provided in subsection (b) of this section, an agritourism host shall not have a legal duty to protect a participant from the inherent risks of an agritourism activity and shall not be liable for injury to or death of a participant or damage to the property of a participant resulting from the inherent risks of an agritourism activity, provided that the agritourism host posts the warning required under section 5873 of this title.
  2. Nothing in subsection (a) of this section shall limit the liability of an agritourism host who:
    1. commits a negligent act or omission concerning the safety of a participant that proximately causes injury or death to the participant;
    2. has actual knowledge of:
      1. a dangerous condition on the land, facilities, or equipment used in the activity, or
      2. the dangerous propensity of an animal used in the activity, which proximately causes injury or death to the participant, and does not make that danger known to the participant;
    3. intentionally injures a participant or intentionally damages a participant’s property;
    4. commits any other act, error, or omission that constitutes willful or wanton misconduct or criminal conduct that proximately causes injury or death to the participant; or
    5. fails to post the warning required under section 5873 of this title.
  3. Nothing in subsection (a) of this section shall prevent or limit the liability of an agritourism host under product liability law.
  4. Any limitation on liability afforded by this section to an agritourism host is in addition to any other limitations on liability otherwise provided by law.

HISTORY: Added 2021, No. 31 , § 1.

§ 5873. Warning notice; posting; contracts.

  1. To qualify for the limitation on liability under section 5872 of this title:
    1. an agritourism host shall post and maintain a sign in a clearly visible location at or near the main entrance to each agritourism activity and in black letters at least one inch in height containing the warning notice specified in subsection (b) of this section; and
    2. every written contract entered into between an agritourism host and a participant for goods or services related to an agritourism activity shall contain in clearly visible print the warning notice specified in subsection (b) of this section.
  2. The warning notice required under subsection (a) of this section shall read: “WARNING: Under Vermont law, an agritourism host is not liable for the injury or death of a participant in an agritourism activity resulting from the inherent risk of the agritourism activity. Inherent risks include the risk of animals, weather, land conditions, and the potential for you as a participant to act in a negligent way that may contribute to your own injury or death. You are assuming the risk of participating in this agritourism activity.”

HISTORY: Added 2021, No. 31 , § 1.

Chapter 213. Judicial Forms

Subchapter 1. Writs and Other Forms

§ 5901. Forms prescribed; alterations.

The forms of writs set out in this chapter, in the several courts of this State, and other proceedings, shall, as near as circumstances will admit, be adopted and used, and shall be sufficient in law; but alterations may be made and allowed by the courts when necessary to adapt them to changes in the law.

History

Source.

V.S. 1947, § 10,610, opening paragraph. 1947, No. 202 , § 10,398. 1941, No. 36 , § 2. P.L. § 9111. G.L. § 7472. P.S. § 6266. V.S. § 5417. R.L. § 4550. G.S. 127. R.S. 108. R. 1797, p. 508, § 1. R. 1787, p. 164.

Revision note—

“The following forms of writs” was changed to “The forms of writs set out in this chapter”.

CROSS REFERENCES

Change of name, form for, see 15 V.S.A. § 811 .

Writs generally, see ch. 25 of this title.

§ 5902. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 5902. Former § 5902, relating to attachment and capias, was derived from V.S. 1947, § 10,610, Form 1; P.L. § 9111, Form 1; G.L. § 7472, Form 1; 1917, No. 254 , § 7244, Form 1; P.S. § 6266, Form 1; 1898, No. 137 , § 1; V.S. § 5417, Form 1; 1894, No. 44 , § 1; 1892, No. 28 , § 10; R.L. § 4550, Form 1; G.S. 127, Form 1; R.S. 108, Form 1; R. 1797, p. 508; R. 1787, p. 164.

Such section is now covered by V.R.C.P. 84, Form 2.

§ 5903. Repealed. 1979, No. 2, § 2, eff. Feb. 14, 1979.

History

Former § 5903. Former § 5903, relating to attachment and capias before justice of the peace, was derived from V.S. 1947, § 10,610, Form 22; P.L. § 9111, Form 22; G.L. § 7472, Form 22; 1917, No. 254 , § 7244, Form 22; P.S. § 6266, Form 22; V.S. § 5417, Form 21; R.L. § 4550, Form 24; G.S. 127, Form 23; R.S. 108, Form 22; R. 1797, p. 535 and R. 1787, p. 170.

§ 5904. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 5904. Former § 5904, related to attachment of property, was derived from V.S. 1947, § 10,610, Form 2; P.L. § 9111, Form 2; G.L. § 7472, Form 2; 1917, No. 254 , § 7244, Form 2; P.S. § 6266, Form 2; 1898, No. 137 , § 2; V.S. 5417, Form 2; 1894, No. 44 , § 1; 1892, No. 28 , § 10; R.L. § 4550, Form 2; G.S. 127, Form 2; R.S. 108, Form 2; R. 1797, p. 508; R. 1787, p. 164.

Such section is now covered by V.R.C.P. 84, Form 2.

§ 5905. Repealed. 1979, No. 2, § 2, eff. Feb. 14, 1979.

History

Former § 5905. Former § 5905, relating to attachment before justice of the peace, was derived from V.S. 1947, § 10,610, Form 21; P.L. § 9111, Form 21; G.L. § 7472, Form 21; 1917, No. 254 , § 7244, Form 21; P.S. § 6266, Form 21; V.S. § 5417, Form 20; R.L. § 4550, Form 23; G.S. 127, Form 22; R.S. 108, Form 22; R. 1797, p. 535 and R. 1787, p. 170.

§§ 5906-5910. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 5906-5910. Former §§ 5906-5910 related to audita querela, chancery subpoena for bill or petition, execution, levy upon and sale of real estate, and forcible entry and detainer.

Such sections are now covered by V.R.C.P. 2, 60(b), 84, Forms 2, 33.

Former § 5906 was derived from V.S. 1947, § 10,610, Form 10; P.L. § 9111, Form 10; G.L. § 7472, Form 10; 1917, No. 254 , § 7244, Form 10; P.S. § 6266, Form 10; R. 1906, § 6130, Form 10; V.S. § 5417, Form 9; R.L. § 4550, Form 16; G.S. 127, Form 16; R.S. 108, Form 16; R. 1797, p. 522.

Former § 5907 was derived from V.S. 1947, § 1290; P.L. § 1257; G.L. § 1499; 1908, No. 55 , § 1.

Former § 5908 was derived from V.S. 1947, § 10,610, Form 4; P.L. § 9111, Form 4; G.L. § 7472, Form 4; P.S. § 6266, Form 4; V.S. § 5417, Form 4; R.L. § 4550, Form 5; G.S. 127, Form 5; R.S. 108, Form 5; R. 1797, p. 510; R. 1787, p. 165.

Former § 5909 was derived from V.S. 1947, § 10,610, Form 5; P.L. § 9111, Form 5; G.L. § 7472, Form 5; P.S. § 6266, Form 5; V.S. § 5417, Form 60; 1886, No. 65 ; R.L. § 4550, Form 47; G.S. 127, Form 45; R.S. 108, Form 44.

Former § 5910 was derived from V.S. 1947, § 10,610, Form 17; P.L. § 9111, Form 17; G.L. § 7472, Form 17; P.S. § 6266, Form 17; R. 1906, § 6130, Form 17; V.S. § 5417, Form 16; R.L. § 4550, Form 10; G.S. 127, Form 10; R.S. 108, Form 10; R. 1797, p. 516.

§ 5911. Forcible entry and detainer verdict.

Verdict in Entry and Detainer

STATE OF VERMONT, At a court of inquiry held at County, ss. , on the } day of A. D. 20 , before E. F. and G. H., Justices of the peace in and for the county of , aforesaid. A. B. of , complainant, against C. D. of , respondent. The jury find that the facts alleged in the said A. B.’s complaint are true, and that the said C. D. is guilty thereof, and that the said A. B. ought to have restitution of the premises therein described, without delay. () (the jury find that the facts alleged in the said A. B.’s complaint are not true, and that the said C. D. is not guilty.) If the jury do not find the allegations of the complainant proved, then after the word respondent insert N. W., Foreman.

Click to view

History

Source.

V.S. 1947, § 10,610, Form 18. P.L. § 9111, Form 18. G.L. § 7472, Form 18. P.S. § 6266, Form 18. R. 1906, § 6130, Form 18. V.S. § 5417, Form 17. R.L. § 4550, Form 12. G.S. 127, Form 12. R.S. 108, Form 12. R. 1797, p. 518.

§ 5912. Restitution.

Writ of Restitution in Case of Forcible Entry and Detainer

STATE OF VERMONT, To any sheriff or constable in County, ss. the State or to , } an indifferent person, Greeting: Whereas A. B. of, etc., at a court of inquiry of forcible entry and detainer, held at in the county of , on the day of A.D. 20 , before E. F. and G. H., justices of the peace in and for the county of , by the consideration of the said court recovered a judgment against C. D. of , to have restitution of () here describe the premises as in the complaint Therefore, by the authority of the State of Vermont, you are hereby commanded forthwith to remove the said C. D. from the premises, and to cause the said A. B. to have peaceable restitution thereof. You are also hereby commanded, that of the goods, chattels or lands of the said C. D., within your precinct, you cause to be levied, and, the same being disposed of according to law, paid and satisfied to the said A. B., the sum of dollars, being the costs taxed against the said C. D. for the said A. B., by the court aforesaid, together with cents for this writ, and thereof also satisfy yourself for your own fees. Fail not, but service and return make within days from the date hereof. Dated at in the county of , the day of A.D. 20 E. F., Justice of the Peace. G. H., Justice of the Peace.

Click to view

History

Source.

V.S. 1947, § 10,610, Form 19. P.L. § 9111, Form 19. G.L. § 7472, Form 19. P.S. § 6266, Form 19. R. 1906, § 6130, Form 19. V.S. § 5417, Form 18. R.L. § 4550, Form 13. G.S. 127, Form 13. R.S. 108, Form 13. R. 1797, p. 519.

§ 5913. Habeas corpus.

Writ of Habeas Corpus

(Commencement as in § 5903. )

To the sheriff of . . . . . . . . (or person having the custody of the prisoner,) ( to be designated by his or her name or name of office ) or to any sheriff in the State, or his or her deputy, ( as the case may be )

Greeting:

By the authority of the State of Vermont, you are hereby commanded that the body of A. B. of . . . . . . . . , in the prison in . . . . . . . . , in the county of . . . . . . . . , (or by you imprisoned and restrained of his or her liberty,) ( as the case may be ) together with the day and cause of his or her commitment (taking and detaining,) by whatsoever name the said A. B. shall be called or charged, you have forthwith before the . . . . . . . . court now sitting at, etc., or before me, at . . . . . . . . ( if issued by a Justice of the Supreme Court or a Superior judge ) to do and receive what the said court shall then and there consider concerning him or her in this behalf, and have you have this writ.

( in case of imprisonment or detention by any person not an officer of this State, or of the courts of the United States, insert as follows ) And you are hereby further commended to summon the said . . . . . . . . ( naming the person by whom such prisoner is restrained) to appear before said court or before me (as the case may be ) at the time and place aforesaid, and show the cause, if any he or she have, of the taking and of detaining said A. B.

Dated at . . . . . . . . in the county of . . . . . . . . , the . . . . . . . . day of . . . . . . . . A.D. 20 . . . . . . . .

Judge, etc., or Clerk.

History

Source.

V.S. 1947, § 10,610, Form 11. P.L. § 9111, Form 11. G.L. § 7472, Form 11. 1917, No. 254 , § 7244, Form 11. P.S. § 6266, Form 11. V.S. § 5417, Form 10. R.L. § 4550, Form 14. G.S. 127, Form 14. R.S. 108, Form 14. R. 1797, p. 521.

References in text.

The reference to “(Commencement as in § 5903.)” is obsolete. That section was repealed pursuant to 1979, No. 2 , § 2, eff. Feb. 14, 1979.

CROSS REFERENCES

Habeas corpus, see ch. 143 of this title.

§§ 5914-5923. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 5914-5923. Former §§ 5914-5923 related to replevin and scire facias.

Such sections are now covered by V.R.C.P. 4.1(e), 81(b), 84, Forms 1, 14.

Former § 5914 was derived from V.S. 1947, § 10,610, Form 6; P.L. § 9111, Form 6; G.L. § 7472, Form 6; 1917, No. 254 , § 7244, Form 6; P.S. § 6266, Form 6; R. 1906, § 6130, Form 6; V.S. § 5417, Form 5; R.L. § 4550, Form 7; G.S. 127, Form 7; R.S. 108, Form 7; R. 1797, p. 512; R. 1787, p. 168.

Former § 5915 was derived from V.S. 1947, § 10,610, Form 7; P.L. § 9111, Form 7; G.L. § 7472, Form 7; 1917, No. 254 , § 7244, Form 7; P.S. § 6266, form 7; V.S. § 5417, Form 6; 1894, No. 162 , § 5247, Form 6; R.L. § 767; G.S. 29, § 74; R.S. 24, § 44.

Former § 5916 was derived from V.S. 1947, § 10,610, Form 8; P.L. § 9111, Form 8; G.L. § 7472, Form 8; P.S. § 6266, Form 8; V.S. § 5417, Form 7; 1894, No. 162 , § 5247, Form 7; 1886, No. 65 , § 3.

Former § 5917 was derived from V.S. 1947, § 10,610, Form 12; P.L. § 9111, Form 12; G.L. § 7472, Form 12; 1917, No. 254 , § 7244, Form 12; P.S. § 6266, Form 12; V.S. § 5417, Form 11; 1894, No. 44 , § 1; 1892, No. 28 , § 10; R.L. § 4550, Form 41; G.S. 127, Form 40; R.S. 108, Form 39; R. 1797, p. 520; R. 1787, p. 166.

Former § 5918 was derived from V.S. 1947, § 10,610, Form 13; P.L. § 9111, Form 13; G.L. § 7472, Form 13; 1917, No. 254 , § 7244, Form 13; P.S. § 6266, Form 13; V.S. § 5417, Form 12; R.L. § 4550, Form 42; G.S. 127, Form 41; R.S. 108, Form 40; R. 1797, p. 523.

Former § 5919 was derived from V.S. 1947, § 10,610, form 14; P.L. § 9111, Form 14; G.L. § 7472, Form 14; 1917, No. 254 , § 7244, Form 14; P.S. § 6266, Form 14; V.S. § 5417, Form 13; R.L. § 4550, Form 43; G.S. 127, Form 42; R.S. 108, Form 41; R. 1797, p. 96, § 46.

Former § 5920 was derived from V.S. 1947, § 10,610, Form 15; P.L. § 9111, Form 15; G.L. § 7472, Form 15; P.S. § 6266, Form 15; V.S. § 5417, Form 14; R.L. § 4550, Form 44.

Former § 5921 was derived from V.S. 1947, § 10,610, Form 16; P.L. § 9111, Form 16; G.L. § 7472, Form 16; 1917, No. 254 , § 7244, Form 16; P.S. § 6266, Form 16; V.S. § 5417, Form 15; R.L. § 4550, Form 45; G.S. 127, Form 43; R.S. 108, Form 42.

Former § 5922 was derived from V.S. 1947, § 10,610, Form 9; P.L. § 9111, Form 9; G.L. § 7472, Form 9; 1917, No. 254 , § 7244, Form 9; P.S. § 6266, Form 9; V.S. § 5417, Form 8; 1894, No. 44 , § 1; R.L. § 4550, Form 8; G.S. 127, Form 8; R.S. 108, Form 8; R. 1797, p. 514; R. 1787, p. 169.

Former § 5923 was derived from V.S. 1947, § 10,610, Form 3; P.L. § 9111, Form 3; G.L. § 7472, Form 3; 1917, No. 254 , § 7244, Form 3; P.S. § 6266, Form 3; 1898, No. 137 , § 3; V.S. § 5417, Form 3; 1894, No. 44 , § 1; 1892, No. 28 , § 10; R.L. § 4550, Form 3; G.S. 127, Form 3; R.S. 108, Form 3; R. 1797, p. 509; R. 1787, p. 165.

§ 5924. Repealed. 1979, No. 2, § 2, eff. Feb. 14, 1979.

History

Former § 5924. Former § 5924, relating to summons before justice of the peace, was derived from V.S. § 10,610, Form 20; P.L. § 9111, Form 20; G.L. § 7472, Form 20; 1917, No. 254 , § 7244, Form 20; P.S. § 6266, Form 20; V.S. § 5417, Form 19; R.L. § 4550, Form 22; G.S. 127, Form 21; R.S. 108, Form 21; R. 1797, p. 534 and R. 1787, p. 170.

§ 5925. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 5925. Former § 5925, relating to trustee process, was derived from V.S. 1947, § 10,610, Form 23; P.L. § 9111, Form 23; G.L. § 7472, Form 23; P.S. § 6266, Form 23; V.S. § 5417, Form 22; R.L. § 4550, Form 46; G.S. 127, Form 44; R.S. 108, Form 43; R. 1797, p. 507, § 11.

Such section is now covered by V.R.C.P. 84, Forms 2A, 2B.

Subchapter 2. Forms for Pleadings and Trial

§§ 5961, 5962. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 961, 5962. Former §§ 5961, 5962 related to complaints, action on book account and ejectment.

Such sections are now covered by V.R.C.P. 8(a), 84, Form 4.

Former § 5961 was derived from V.S. 1947, § 10,610, Form 24; P.L. § 9111, Form 24; G.L. § 7472, Form 24; 1917, No. 254 , § 7244, Form 24; P.S. § 6266, Form 24; V.S. § 5417, Form 23; R.L. § 4550, Form 4; G.S. 127, Form 4; R.S. 108, Form 4; R. 1797, p. 515; R. 1787, p. 169.

Former § 5962 was derived from V.S. 1947, § 10,610, Form 25; P.L. § 9111, Form 25; G.L. § 7472, Form 25; 1917, No. 254 , § 7244, Form 25; P.S. § 6266, Form 25; V.S. § 5417, Form 24; R.L. § 4550, Form 6; G.S. 127, Form 6; R.S. 108, Form 6; R. 1797, p. 511; R. 1787, p. 167.

§ 5963. Writ and complaint—justice ejectment.

Writ and Complaint in Justice Ejectment

STATE OF VERMONT, To any sheriff or constable in County, ss. the State, or to } an indifferent person, Greeting: By the authority of the State of Vermont, you are hereby commanded to attach the goods, chattels, or estate of of , in the county of to the value of dollars, and notify thereof according to law, (and for want thereof take his or her body, if to be found within your precinct, and him or her safely keep so that you have him or her to appear before me) (and also notify to appear before me) at , on the day of at o’clock in the noon, then and there to answer to the complaint of of , in the county of . For that the said defendant, , is in the possession of certain lands (and tenements) situated in the town of , in the county of , described as follows: (which lands (and tenements) the said defendant holds unlawfully and against the right of the plaintiff, as it is said. insert a brief description) To the damage of the plaintiff dollars, to recover which and the quiet and peaceable possession of the premises, with just costs, the plaintiff brings this action. Fail not, but service and return make according to law. ( Conclude as in § 5903.)

Click to view

History

Source.

V.S. 1947, § 10,610, Form 26. P.L. § 9111, Form 26. G.L. § 7472, Form 26. 1917, No. 254 , § 7244, Form 26.

References in text.

The reference to “(Conclude as in § 5903.)” is obsolete. § 5903 was repealed pursuant to 1979, No. 2 , § 2, eff. Feb. 14, 1979.

CROSS REFERENCES

Justice ejectment, see § 4851 et seq. of this title.

ANNOTATIONS

Generally.

Declaration complied with section 4852 of this title and statutory form of action in justice ejectment by alleging that defendants are in possession of the premises in question, which land and tenements the defendants hold unlawfully and against the rights of plaintiff. Canfield v. Hall, 121 Vt. 479, 160 A.2d 768, 1960 Vt. LEXIS 147 (1960).

§ 5964. Repealed. 1979, No. 2, § 2, eff. Feb. 14, 1979.

History

Former § 5964. Former § 5964, relating to jurors for justice court, was derived from V.S. 1947, § 10,610, Form 27; P.L. § 9111, Form 27; G.L. § 7472, Form 27; P.S. § 6266, Form 26; V.S. § 5417, Form 25 and 1894, No. 162 , § 5247, Form 25.

§§ 5965, 5966. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 5965, 5966. Former §§ 5965, 5966 related to witnesses forms.

Former § 5965 was derived from V.S. 1947, § 10,610, Form 28; P.L. § 9111, Form 28; G.L. § 7422, Form 28; P.S. § 6266, Form 27; V.S. § 5417, Form 26; R.L. § 4550, Form 15; G.S. 127, Form 15; R.S. 108, Form 15; R. 1797, p. 521; R. 1787, p. 166.

Former § 5966 was derived from V.S. 1947, § 10,610, Form 29; P.L. § 9111, Form 29; G.L. § 7472, Form 29; P.S. § 6266, Form 28; R. 1906, § 6130, Form 28.

§ 5967. Witness—subpoena for appearance before grand jury.

Subpoena for Witness Before Grand Jury

(Commencement and direction as in § 5903.)

By the authority of the State of Vermont, you are hereby commanded to summon of to appear before the grand jury of the county of , at the courthouse in , on the day of A.D. 20 , at o’clock in the noon, to give evidence of what they know relative to all matters of complaint pending and to be investigated before such grand jury; and this neither of them may omit, as they will answer their default under the pains and penalties of the law in such case made and provided. Fail not, but service and return make according to law. Dated at, etc. G. H., Clerk, Justice of the Peace, Notary Public

Click to view

History

Source.

V.S. 1947, § 10,610, Form 30. P.L. § 9111, Form 30. G.L. § 7472, Form 30. P.S. § 6266, Form 29. V.S. § 5417, Form 27. 1884, No. 98 , § 2.

References in text.

The reference to “(Commencement and direction as in § 5903.)” is obsolete. § 5903 was repealed pursuant to 1979, No. 2 , § 2, eff. Feb. 14, 1979.

CROSS REFERENCES

Penalty for failure to appear before grand jury, see 13 V.S.A. § 3003 .

§§ 5968-5971. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former §§ 5968-5971. Former §§ 5968-5971 related to depositions.

Former § 5968 was derived from V.S. 1947, § 10,610, Form 31; P.L. § 9111, Form 31; G.L. § 7472, Form 31; P.S. § 6266, Form 30; V.S. § 5417, Form 28; R.L. § 4550, Form 30; G.S. 127, Form 29; R.S. 108, Form 28; R. 1797, p. 113, § 81.

Former § 5969 was derived from V.S. 1947, § 10,610, Form 32; P.L. § 9111, Form 32; G.L. § 7472, Form 32; P.S. § 6266, Form 31; V.S. § 5417, Form 29; R.L. § 4550, Form 31; G.S. 127, Form 30; R.S. 108, Form 29; R. 1797, p. 115, § 82.

Former § 5970 was derived from V.S. 1947, § 10,610, Form 33; P.L. § 9111, Form 33; G.L. § 7472, Form 33; P.S. § 6266, Form 32; V.S. § 5417, Form 30; R.L. § 4550, Form 26; G.S. 127, Form 25; R.S. 108, Form 24; R. 1797, p. 536.

Former § 5971 was derived from V.S. 1947, § 10,610, Form 34; P.L. § 9111, Form 34; G.L. § 7472, Form 34; P.S. § 6266, Form 33; V.S. § 5417, Form 31; R.L. § 4550, Form 27; G.S. 127, Form 26; R.S. 108, Form 25; R. 1797, p. 537.

§ 5972. Repealed. 1979, No. 2, § 2, eff. Feb. 14, 1979.

History

Former § 5972. Former § 5972, relating to rule of reference by justice, was derived from V.S. 1947, § 10,610, Form 35; P.L. § 9111, Form 35; G.L. § 7472, Form 35; P.S. § 6266, Form 34; V.S. § 5417, Form 32; R.L. 4550, Form 29; G.S. 127, Form 28; R.S. 108, Form 27; R. 1797, p. 430, § 33 and 1794, p. 97.

Subchapter 3. Arrest, Bail, Bonds, and Recognizances

§ 6001. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 6001. Former § 6001, relating to bailpiece, was derived from V.S. 1947, § 10,610, Form 39; P.L. § 9111, Form 39; G.L. § 7472, Form 39; P.S. § 6266, Form 42; V.S. § 5417, Form 40; R.L. § 4550, Form 32; G.S. 127, Form 31; R.S. 108, Form 30; R. 1797, p. 88, § 32.

Such section is now covered by V.R.C.P. 4.3.

§ 6002. Bailpiece—surety in jail bond taken on execution.

Bailpiece to be Furnished a Surety in a Jail Bond Taken on an Execution

STATE OF VERMONT, On the day of County, ss. } A. D. 20 , A. B. of in the county of was bailed by C. D. of in the county of , to the liberties of the jail yard in in the county of , on an execution in favor of E. F. of in the county of , the sum of dollars damages, and dollars costs of action, with cents for such execution, and officers’ fees thereon to the amount of . G. R., Jailer.

Click to view

History

Source.

V.S. 1947, § 10,610, Form 40. P.L. § 9111, Form 40. G.L. § 7472, Form 40. P.S. § 6266, Form 43. V.S. § 5417, Form 41. R.L. § 4550, Form 33. G.S. 127, Form 32. R.S. 108, Form 31. 1812, p. 161.

§ 6003. Surety for person charged with being father of illegitimate child.

Bailpiece to be Furnished the Surety for Person Charged with Being the Father of an Illegitimate Child

STATE OF VERMONT, A. B. of in County, ss. } the county of is bailed by C. D. of in the county of , upon a recognizance in the sum of dollars, returnable to () at the instance of E. F.; the said C. D. having become surety for the appearance of the said A. B. before said court (or justice) at , on the day of insert name of court or justice and the time and place of session Given under my hand at , this day of A. D. 20 . Attest, G. H., Sheriff or Jailer. ( The warrant for arrest of principal may be as in § 6007, setting forth that the principal is charged with being the father of an illegitimate child, instead of with a crime.)

Click to view

History

Source.

V.S. 1947, § 10,610, Form 41. P.L. § 9111, Form 41. G.L. § 7472, Form 41. P.S. § 6266, Form 44. V.S. § 5417, Form 42. 1894, No. 162 , § 5247, Form 42.

§ 6004. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 6004. Former § 6004, related to warrant, bail against principal, was derived from V.S. 1947, § 10,610, Form 42; P.L. § 9111, Form 42; G.L. § 7472, Form 42; P.S. § 6266, Form 45; V.S. § 5417, Form 43; R.L. § 4550, Form 9; G.S. 127, Form 9; R.S. 108, Form 9; R. 1797, p. 515.

Such section is now covered by V.R.C.P. 4.3.

§ 6005. Warrant—issued on bailpiece furnished to surety in jail bond.

Warrant to be Issued on the Bailpiece Furnished to a Surety in Jail Bond

(Commencement and direction as in § 5903.)

Whereas it has been made to appear to me, on application of C. D. of in the county of , that on the day of A.D. 20 , at in the county of , one A. B. of in the county of , then a prisoner in the common jail in in the county of , on an execution in favor of E. F. of in the county of , for the sum of dollars damages, and for the sum of dollars costs of action, and cents for such execution, and officer’s fees thereon to the amount of , was bailed to the liberties of the aforesaid jail yard by the said C. D.; and the said C. D. having prayed for a warrant to recommit the said A. B., agreeably to the statute in such case made and provided; Therefore, by the authority of the State of Vermont, you are hereby commanded to apprehend the body of the said A. B., and him or her safely keep until he or she pays the sums above mentioned, or is released from imprisonment by the creditor, or otherwise by order of law. (Conclusion and date as in § 5912.)

Click to view

J. I., Justice of the Peace.

History

Source.

V.S. 1947, § 10,610, Form 43. P.L. § 9111, Form 43. G.L. § 7472, Form 43. P.S. § 6266, Form 46. V.S. § 5417, Form 44. R.L. § 4550, Form 34. G.S. 127, Form 33. R.S. 108, Form 32. 1812, p. 162.

References in text.

The reference to “(Commencement and direction as in § 5903.)” is obsolete. § 5903 was repealed pursuant to 1979, No. 2 , § 2, eff. Feb. 14, 1979.

§ 6006. Request therefor for arrest of principal in relief of bail.

Request for a Warrant for the Arrest of a Principal in Relief of Bail

Whereas I, A. B., on day of A.D. 20 , became bail for C. D., in the sum of dollars, for his or her appearance before the Superior Court within and for the county of , on the day of next; the said C. D. being charged with the crime of ; I now request you to grant me a warrant, in due form of law, to apprehend the body of the said C. D., that I may commit him or her to jail in the county of , in discharge of my recognizance. Dated at, etc. A. B.

Click to view

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 10,610, Form 47. P.L. § 9111, Form 47. G.L. § 7472, Form 47. P.S. § 6266, Form 53. V.S. § 5417, Form 51. R.L. § 4550, Form 48. G.S. 124, § 19. 1858, No. 6 , § 4.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

§ 6007. Arrest of principal in relief of bail.

Warrant for Arrest of Principal in Relief of Bail

STATE OF VERMONT, To any sheriff or constable in County, ss. the State or to } an indifferent person, Greeting: Whereas A. B. of , on the day of A.D. 20 , became bail for the appearance of C. D. before the Superior Court next to be held at , within and for the county of , on the day of A.D. 20 , charged with the crime of , in the sum of dollars; and whereas the said A. B. has this day filed with me his or her application, in writing, praying for a warrant to arrest the said C. D., to commit him or her to jail in discharge of the recognizance of the said A. B.; Therefore, by the authority of the State of Vermont, you are hereby commanded to apprehend the body of the said C. D., and him or her commit to the keeper of the jail in the county of , within said jail, who is hereby commanded to receive the body of the said C. D., and him or her safely keep until he or she is discharged according to law. Fail not, but service and return make according to law. Dated at in the county of , the day of A.D. 20 . , Justice of the Peace, Judge, or Clerk.

Click to view

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 10,610, Form 48. P.L. § 9111, Form 48. G.L. § 7472, Form 48. P.S. § 6266, Form 54. V.S. § 5417, Form 52. R.L. § 4550, Form 49. G.S. 124, § 20. 1858, No. 6 , § 5.

References in text.

The reference to “Justice of the Peace” in the signature line is obsolete.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

§ 6008. Condition of jail bond.

Condition of a Jail Bond

The condition of the above obligation is such, that whereas the above bounden , now a prisoner in the common jail in in the county of and State of Vermont, by virtue of an execution in favor of of in the county of and State of , for the sum of dollars and cents debt (or damages) and costs, and for the sum of dollars and cents costs, with cents for such execution and the officer’s fees on the same, to the amount of , issued on a judgment recovered before () and signed by () now a prisoner in the common jail, etc., at the suit of of in the county of and State of , demanding in his or her writ, debt (or damages) to the amount of dollars. here set forth court, time, etc., here mention the authority signing the execution, or, when the bond is taken on mesne process, insert in the condition, Now, if the said faithfully and absolutely remains within the limits of such jail yard, and does not depart therefrom until he or she is lawfully discharged, without committing any escape before such discharge, or doing any act by which the sheriff, as aforesaid, is damnified, in consequence of admitting the said to the liberties of such jail yard; but at all times indemnifies and saves harmless the sheriff, in the premises; then this obligation to be void and of no effect, otherwise of force. Signed, sealed and (L.S.) delivered in presence of } (L.S.)

Click to view

History

Source.

V.S. 1947, § 10,610, Form 56. P.L. § 9111, Form 56. G.L. § 7472, Form 55. P.S. § 6266, Form 58. V.S. § 5417, Form 58. R.L. § 4550, Form 35. G.S. 127, Form 34. R.S. 108, Form 33. R. 1797, p. 321, § 10.

ANNOTATIONS

Defects.

Where in debt on jail bond wherein J. D. Abbott was surety, the condition of bond recited that principal was imprisoned in Caledonia County on execution issued on “a judgment recovered before Henry W. Adams, a justice of the peace for the County of Orange, and signed by the said J. D. Abbott, Justice of the Peace,” it was apparent on face of the bond that Abbott’s name was inserted for Adams’s by a clerical error, and that bond should be treated as though the error had not been made. Weed v. Abbott, 51 Vt. 609, 1879 Vt. LEXIS 134 (1879).

§ 6009. Poor debtor—oath.

Poor Debtor’s Oath

The oath to poor debtors shall be administered by the commissioners of jail delivery in the following form:

“You solemnly swear that you have not estate, real or personal, to the amount of $20.00, nor sufficient to satisfy the execution on which you are committed, except such as is exempt from execution; and that you have not, directly or indirectly, disposed of any part of your estate to defraud your creditors; and that you have not, since your commitment, disposed of any of your property to defraud the creditor on whose execution you are committed. So help you God.”

History

Source.

V.S. 1947, § 2273. P.L. § 2220. G.L. § 2409. P.S. § 2131. V.S. § 1775. R.L. § 1526. G.S. 121, § 49. R.S. 103, § 37. 1827, No. 7 , § 3. 1818, p. 81. 1811, p. 27. R. 1797, p. 323, § 12. R. 1787, p. 77.

CROSS REFERENCES

Form for poor debtor’s oath in bastardy prosecutions, see § 3689 of this title.

§ 6010. Commissioner’s certificate on admission to oath.

The certificate to be delivered by the commissioners to the prisoner admitted to the poor debtor’s oath shall be substantially as follows:

STATE OF VERMONT, To all whom it may concern, County, ss. } Greeting: , a prisoner confined in the jail in in the county of , on an execution in favor of of in the county of and State of , dated the day of , 20 , for dollars and cents damages (or debt) and dollars and cents cost, signed by , has this day been admitted to the poor debtor’s oath, and ought to be discharged. The creditor was (or was not) notified, and did (or did not) attend. Given under our hands at , this day of , 20 } Commissioners.

Click to view

History

Source.

V.S. 1947, § 2275. P.L. § 2222. G.L. § 2411. P.S. § 2133. V.S. § 1777. R.L. § 1528. G.S. 121, § 51. R.S. 103, § 39. R. 1797, p. 323, § 12.

ANNOTATIONS

Generally.

If jail commissioners certify in one certificate that creditors did attend, and in the other that they did not, this will not render the discharge irregular. Carter v. Miller, 12 Vt. 513, 1840 Vt. LEXIS 79 (1840).

When commissioners of jail delivery certify that creditor is duly notified, their certificate is conclusive. Allen v. Hall, 8 Vt. 34, 1836 Vt. LEXIS 6 (1836).

The effect of jail commissioners’ decision is the same, when they certify the manner of notice, if they also adjudge and certify that creditor was duly notified. Allen v. Hall, 8 Vt. 34, 1836 Vt. LEXIS 6 (1836).

Defects.

Certificate of jail commissioners, setting forth execution for sum different from that on which debtor is committed, will not authorize his discharge, although proper oath may have been administered to him. Holbrook, Bowman & Co. v. Pearce, 15 Vt. 616, 1843 Vt. LEXIS 95 (1843).

§ 6011. Treasurer’s bond.

Know all men by these presents, that I, A. B. of in the county of , as principal, and we, C. D. and E. F. of in the county of , as sureties, acknowledge ourselves jointly and severally indebted to the , in the penal sum of dollars, current money of the United States, for the payment of which, well and truly to be made, we jointly and severally bind ourselves, our and each of our heirs, executors and administrators, firmly by these presents. Signed with our hands, sealed with our seals and dated this day of A.D. 20 . The condition of the above obligation is such that if the said A. B. well and faithfully executes the office of for the ensuing, and at all times well and faithfully accounts for all the monies and other matters and things which come into his or her hands and possession by virtue of his or her office, and well and faithfully performs all and singular the other duties and requirements thereof according to law, then this obligation to be void, otherwise of force. Signed, sealed and A.B. (L.S.) delivered in presence C.D. (L.S.) of } E.F. (L.S.)

Click to view

History

Source.

V.S. 1947, § 10,610, Form 57. P.L. § 9111, Form 57. G.L. § 7472, Form 56. P.S. § 6266, Form 59. V.S. § 5417, Form 59. R.L. § 4550, Form 36. 1870, No. 67 . G.S. 127, Form 35. R.S. 108, Form 34. R. 1797, p. 485, § 15.

Subchapter 4. Indictments and Presentments

§ 6041. Indictment—perjury before court or tribunal.

Indictment Against a Person for Committing Perjury Before a Court or Tribunal

STATE OF VERMONT, Be it remembered that at a County, ss. } term of the Superior Court begun and held at within and for the county of , aforesaid, on the day of A.D. 20 , the grand jurors within and for such county of , upon their oath present, that A. B. of in the county of , at in such county of , on the day of A.D. 20 , appeared as a witness in a proceeding in which C.D. and E.F. were parties, then and there being heard before a tribunal of competent jurisdiction, () and committed the crime of perjury, by testifying in substance as follows: () which such testimony was material to the issue then and there pending in such proceeding, against the peace and dignity of the State. here specify the matter under consideration here set out the matter sworn to and alleged to be false

Click to view

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 10,610, Form 44. P.L. § 9111, Form 44. G.L. § 7472, Form 44. P.S. § 6266, Form 50. R. 1906, § 6130, Form 50. V.S. § 5417, Form 48. 1890, No. 29 , § 1.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

CROSS REFERENCES

Indictments for perjury, see 13 V.S.A. § 2906 .

ANNOTATIONS

Defects.

While perjury may be assigned by reciting false testimony relied on, an indictment is bad for uncertainty which recites testimony in course of which false testimony is alleged to be found, but which fails to point out in what specific answers alleged perjury is contained. State v. Rowell, 72 Vt. 28, 47 A. 111 (1899), same case (1898) 70 Vt. 405, 41 A. 430.

Sufficiency.

Count of information for perjury which followed statutory form, was insufficient. State v. Bissell, 106 Vt. 80, 170 A. 102, 1934 Vt. LEXIS 146 (1934).

Indictment for perjury in form prescribed by this section is sufficient, although it fails to allege by what court, magistrate, or person the oath to respondent was administered on occasion when crime is alleged to have been committed. State v. Sargood, 80 Vt. 415, 68 A. 49, 1907 Vt. LEXIS 122 (1907).

Indictment in accordance with this section, § 6042, or § 6043, is sufficient. State v. Camley, 67 Vt. 322, 31 A. 840, 1894 Vt. LEXIS 54 (1894).

§ 6042. Perjury before person or board authorized to examine witnesses.

Indictment Against a Person for Committing Perjury Before a Person, or Board Consisting of More Than One Person, Authorized by Law to Examine Witnesses Under Oath

STATE OF VERMONT, Be it remembered that at a County, ss. } term of the Superior Court begun and held at , within and for the county of , aforesaid, on the day of A.D. 20, the grand jurors within and for the county of , upon their oath present that of in the county of on the day of A.D. 20, before () the said () then and there having authority to examine said () under oath () committed the crime of perjury, by testifying in substance as follows: () which said testimony was material in said proceeding, against the peace and dignity of the State. here insert the name of the person or board before whom the perjury was committed here insert the name of the person or board before whom the perjury was committed here insert name of respondent here specify the matter then under consideration here insert the matter claimed to be false

Click to view

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 10,610, Form 45. P.L. § 9111, Form 45. G.L. § 7473, Form 45. P.S. § 6266, Form 51. R. 1906, § 6130, Form 51. V.S. § 5417, Form 49. 1890, No. 29 , § 3.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

ANNOTATIONS

Scope.

Form prescribed in this section is properly used in indictment charging commission of perjury in disclosure proceedings before justice of the peace after conviction for intoxication. State v. Baker, 64 Vt. 355, 24 A. 98, 1892 Vt. LEXIS 47 (1892).

Sufficiency.

Indictment for perjury in form prescribed by this section, which avers that respondent “committed the crime of perjury,” sufficiently alleged that he was sworn by a person legally qualified to administer the oath; for the word “perjury” implies an oath lawfully administered. State v. Webber, 78 Vt. 463, 62 A. 1018, 1906 Vt. LEXIS 175 (1906).

Indictment in form prescribed by this section, charging perjury before grand jury, which did not allege subject matter of investigation then being pursued by grand jury, did not meet requirement of constitution, ch. I, art. 10, guaranteeing to accused right to demand cause and nature of accusation against him. State v. Webber, 78 Vt. 463, 62 A. 1018, 1906 Vt. LEXIS 175 (1906).

Indictment in accordance with this section, § 6041, or § 6043, is sufficient. State v. Camley, 67 Vt. 322, 31 A. 840, 1894 Vt. LEXIS 54 (1894).

§ 6043. Perjury in swearing to material matter in relation to which oath is authorized.

Indictment Against a Person for Committing Perjury in Swearing or Affirming to a Material Matter in a Writing in Relation to Which an Oath or Affirmation is Authorized by Law

STATE OF VERMONT, Be it remembered that at a term County, ss. } of the Superior Court begun and held at , within and for the county of , aforesaid, on the day of A.D. 20 , the grand jurors within and for such county of , upon their oath present, that A. B. of in the county of , at in such county, on the day of A.D. 20 , before G. H., then and there having competent authority to administer oaths, committed the crime of perjury, by falsely swearing (or affirming) to material matter in writing required by law to be sworn to ) signed by said A. B., which material matter is in substance as follows: () against the peace and dignity of the State. (here insert substance of writing here set out the matter in such writing claimed to be false

Click to view

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 10,610, Form 46. P.L. § 9111, Form 46. G.L. § 7472, Form 46. P.S. § 6266, Form 52. R. 1906, § 6130, Form 52. V.S. § 5417, Form 50. 1890, No. 29 , § 2.

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

ANNOTATIONS

Generally.

Legislature, in prescribing simpler form of indictment for perjury, did not intend to dispense with necessity of alleging enough to show cause and nature of accusation. State v. Rowell, 70 Vt. 405, 41 A. 430 (1898), same case (1899) 72 Vt. 28, 47 A. 111.

Sufficiency.

For knowingly swearing to false statement in proof of loss to fire insurance company, with intent to defraud, which failed to allege that policy existed or that such proof was required by law to be under oath, was insufficient. State v. Dow, 74 Vt. 119, 52 A. 419, 1902 Vt. LEXIS 112 (1902).

Indictment for perjury in violating law in regard to grand list, following statutory form but omitting to aver that writing was one which law required to be verified by oath, or to state it in substance that court might see for itself, but merely quoting statement claimed to be false, is bad on demurrer. State v. Rowell, 70 Vt. 405, 41 A. 430 (1898), same case (1899) 72 Vt. 28, 47 A. 111.

Indictment for perjury in making of affidavit to chattel mortgage, alleging that affidavit falsely stated that debt was just and that mortgage was given to secure it, but failing to set forth condition of mortgage and to describe any debt purporting to be due from mortgagor to respondent, was insufficient. State v. Estabrooks, 70 Vt. 412, 41 A. 499, 1898 Vt. LEXIS 54 (1898).

Indictment for perjury in making of affidavit to chattel mortgage, alleging that affidavit falsely stated that debt was just and that mortgage was given to secure it, but failing to allege that affidavit was appended, or made to be appended, to mortgage; failing to allege that property was of kind and in situation to be the subject of chattel mortgage; and failing to set forth mortgage or to aver that it was one which law required to be verified by oath, was insufficient. State v. Estabrooks, 70 Vt. 412, 41 A. 499, 1898 Vt. LEXIS 54 (1898).

Indictment in accordance with this section, § 6041, or § 6042, is sufficient. State v. Camley, 67 Vt. 322, 31 A. 840, 1894 Vt. LEXIS 54 (1894).

§ 6044. Presentments for intoxication, breach of peace, and tramping.

The presentments for intoxication, breach of the peace, and tramping, as provided for in 13 V.S.A. § 5507 , shall be in substance as follows:

STATE OF VERMONT County, ss. } (INTOXICATION) To the (name of court) comes sheriff, constable, police officer (as the case may be) and upon his or her oath of office makes complaint that of in the county of at on the day of A. D. 20 , , contrary to the form of the statute, in such case made and provided, and against the peace and dignity of the State. became and was found intoxicated Dated at in the county of , this day of , A.D. 20

Click to view

(BREACH OF THE PEACE.)

Same as intoxication to italics, then in place of italics: “did disturb and break the public peace by tumultuous and offensive carriage, by threatening, quarreling, assaulting, beating, and striking (name of person assaulted).” Then continue as in intoxication after italics.

(TRAMPING.)

Same as intoxication to italics, then in place of italics: “was a transient person roving from place to place begging and living without labor or visible means of support.” Then continue as in intoxication after italics.

(TRAMPING.)

Same as intoxication to italics, then in place of italics: “did ride or attempt to ride on a railroad freight train and engine without to consent of the persons in charge thereof.” Then continue as in intoxication after italics.

History

Source.

V.S. 1947, § 10,610, Form 58. P.L. § 9111, Form 58. G.L. § 7472, Form 57. 1917, No. 254 , § 7245. 1910, No. 91 , § 12.

References in text.

The reference to “ 13 V.S.A. § 5507 ” is obsolete. That section was repealed in 1973 pursuant to 1973, No. 118 , § 25.

Subchapter 5. Mittimus

§§ 6071-6078. Repealed. 1971, No. 199 (Adj. Sess.), § 22, eff. July 1, 1972.

History

Former §§ 6071-6078. Former §§ 6071-6078 related to mittimus.

Former § 6071 was derived from V.S. 1947, § 10,610, Form 50; P.L. § 9111, Form 50; G.L. § 7472, Form 50; 1917, No. 254 , § 7344, Form 50.

Former § 6072 was derived from V.S. 1947, § 10,610, Form 51; P.L. § 9111, Form 51; G.L. § 7472, Form 51; 1917, No. 254 , § 7244, Form 51.

Former § 6073 was derived from V.S. 1947, § 10,610, Form 52; P.L. § 9111, Form 52; 1923, No. 141 , § 17; 1919, No. 200 , § 12, Form 52.

Former § 6074 was derived from V.S. 1947, § 10,610, Form 53; P.L. § 9111, Form 53; 1923, No. 141 , § 17; 1919, No. 200 , § 12, form 52.

Former § 6075 was derived from V.S. 1947, § 10,610, Form 54; P.L. § 9111, Form 54; G.L. § 7472, Form 53; 1917, No. 254 , § 7244, Form 53; P.S. § 6266, Form 57; V.S. § 5417, Form 57; R.L. § 4381; 1870, No. 101 , § 2; 1866, No. 10 , § 13.

Former § 6076 was derived from V.S. 1947, § 10,610, Form 55; P.L. § 9111, Form 55; G.L. § 7472, Form 54; 1917, No. 254 , § 7244, Form 54.

Former § 6077 was derived from V.S. 1947, § 10,610, Form 59; 1947, No. 202 , § 10,398; 1941, No. 36 , § 2.

Former § 6078 was derived from V.S. 1947, § 10,610, Form 60; 1947, No. 202 , § 10,398; 1941, No. 36 , § 2.

§ 6079. Repealed. 1977, No. 252 (Adj. Sess.), § 36.

History

Former § 6079. Former § 6079, relating to Commissioner of Mental Health, was derived from 1967, No. 305 (Adj. Sess.), § 3.

Chapter 215. Voluntary Arbitration

History

Contingent amendment—1991 (Adj. Sess.). 1991, No. 160 (Adj. Sess.), §§ 46-49, amended the chapter heading by substituting “Medical Malpractice” for “Voluntary”; and amended §§ 7001-7006 and 7008 and enacted section 7009 of this chapter to provide for mandatory arbitration in medical malpractice cases and admission of practice guidelines. Section 50 provided that the amendments would take effect on the effective date of a universal access health care system enacted by the General Assembly. Such a system has not yet been enacted; the text as amended by 1991, No. 160 (Adj. Sess.) is set out as notes under the sections affected. The text set out below does not include those amendments, as they have not become effective.

Amendments

—1997 (Adj. Sess.). 1991, No. 160 (Adj. Sess.), § 49, substituted “Medical Malpractice” for “Voluntary” in the chapter heading.

Subchapter 1. Voluntary Arbitration

§§ 7001-7009. Repealed. 2019, No. 167 (Adj. Sess.), § 24.

History

Former §§ 7001-7009. Former § 7001, relating to lists established, was derived from 1975, No. 248 (Adj. Sess.), § 1 and amended by 1991, No. 160 (Adj. Sess.), § 46.

Former § 7002, relating to claims; arbitration panels; notification, was derived from 1975, No. 248 (Adj. Sess.), § 1 and amended by 1991, No. 160 (Adj. Sess.), § 46.

Former § 7003, relating to procedures of arbitration panel, was derived from 1975, No. 248 (Adj. Sess.), § 1 and amended by 1991, No. 160 (Adj. Sess.), § 46.

Former § 7004, relating to decision of arbitration panel, was derived from 1975, No. 248 (Adj. Sess.), § 1 and amended by 1991, No. 160 (Adj. Sess.), § 46.

Former § 7005, relating to proceedings subsequent to arbitration panel decisions, was derived from 1975, No. 248 (Adj. Sess.), § 1 and amended by 1991, No. 160 (Adj. Sess.), § 46.

Former § 7006, relating to necessity of expert witnesses, was derived from 1975, No. 248 (Adj. Sess.), § 1 and amended by 1991, No. 160 (Adj. Sess.), § 46.

Former § 7007, relating to rules of court, was derived from 1975, No. 248 (Adj. Sess.), § 1.

Former § 7008, relating to statute of limitations, was derived from 1975, No. 248 (Adj. Sess.), § 1 and amended by 1991, No. 160 (Adj. Sess.), § 46.

Former § 7009, relating to enforcement of awards, was derived from 1991, No. 160 (Adj. Sess.), § 48.

Subchapter 2. Mediation Prior to Filing a Complaint of Malpractice

History

Repeal of subchapter. 2015, No. 54 , § 61(b) provides that this subchapter (consisting of §§ 7011-7015) be repealed on July 1, 2020. This subchapter was previously repealed by 2011, No. 171 (Adj. Sess.), § 24d and was reenacted by 2015, No. 54 , § 29.

§§ 7011-7015. Repealed. 2015, No. 54, § 61(b).

History

Former §§ 7011-7015. Former § 7011, relating to the purpose of mediation prior to filing a complaint of malpractice, was derived from 2015, No. 54 , § 29. These sections were previously repealed by 2011, No. 171 (Adj. Sess.), § 24d.

Former § 7012, relating to presuit mediation and service, was derived from 2015, No. 54 , § 29.

Former § 7013, relating to mediation response, was derived from 2015, No. 54 , § 29.

Former § 7014, relating to process; time frames, was derived from 2015, No. 54 , § 29.

Former § 7015, relating to confidentiality, was derived from 2015, No. 54 , § 29.

Chapter 216. Windsor County Youth Court

§§ 7101-7111. Repealed. 2017, No. 28, § 8, eff. May 10, 2017.

History

Former §§ 7101-7111. Former §§ 701-7111, relating to Windsor County youth court, were derived from 1995, No. 18 , § 1. Section 7112 was previously repealed by 2001, No. 70 , § 1.

§ 7112. Repealed. 2001, No. 70, § 1, effective June 16, 2001.

History

Former § 7112. Former § 7112, relating to the termination of Windsor County youth court, was derived from 1995, No. 18 , § 1 and amended by 1999, No. 54 , § 3.

Chapter 217. Emancipation of Minors

§ 7151. Emancipated minor; definition; criteria.

  1. As used in this chapter:
    1. “Emancipated minor” means a minor who:
      1. has entered into a valid civil marriage, whether or not such civil marriage was terminated by dissolution;
      2. is on active duty with any of the Armed Forces of the United States of America; or
      3. has been ordered emancipated pursuant to section 7155 of this title.
    2. “Risk of harm” means a significant danger that a child will suffer serious harm other than by accidental means, which would be likely to cause physical injury, neglect, emotional maltreatment, or sexual abuse.
  2. In order to become an emancipated minor by court order under this chapter, a minor at the time of the order must be a person who:
    1. Is 16 years of age or older but under the age of majority.
    2. Has lived separate and apart from his or her parents, custodian, or legal guardian for three months or longer.
    3. Is managing his or her own financial affairs.
    4. Has demonstrated the ability to be self-sufficient in his or her financial and personal affairs, including proof of employment or his or her other means of support. “Other means of support” does not include general assistance, Reach Up financial assistance, or relying on the financial resources of another person who is receiving such assistance or aid.
    5. Holds a high school diploma or its equivalent or is earning passing grades in an educational program approved by the court and directed toward the earning of a high school diploma or its equivalent.
    6. Is not under a legal guardianship or in the custody of the Commissioner for Children and Families.
    7. Is not under the supervision or in the custody of the Commissioner of Corrections.

HISTORY: Added 1995, No. 145 (Adj. Sess.), § 1; amended 2013, No. 131 (Adj. Sess.), § 104.

History

Revision note

—2009. In subdiv. (a)(1)(A), substituted “civil marriage” for “marriage” in two places in accordance with 2009, No. 3 , § 12a.

Amendments

—2013 (Adj. Sess.). Substituted “, Reach Up financial assistance” for “or Aid to Needy Families with Children” following “general assistance” in subdiv. (b)(4), “toward” for “towards” following “and directed” in subdiv. (b)(5), and deleted “or guardianship” following “in the custody” in subdiv. (6).

§ 7152. Jurisdiction.

The Probate Division of the Superior Court shall have exclusive jurisdiction over all proceedings concerning the emancipation of minors.

HISTORY: Added 1995, No. 145 (Adj. Sess.), § 1; amended 2009, No. 154 (Adj. Sess.), § 91, eff. Feb. 1, 2011.

History

Amendments

—2009 (Adj. Sess.) Inserted “division of the superior” preceding “court”.

§ 7153. Petition; contents.

  1. A minor may petition the Probate Division of the Superior Court in the probate district in which the minor resides at the time of the filing for an order of emancipation. The petition shall state:
    1. the minor’s name and date of birth;
    2. the minor’s address;
    3. the names and addresses, if known, of the minor’s parents;
    4. the names and addresses of any guardians or custodians, including the Commissioner for Children and Families, appointed for the minor, if appropriate;
    5. specific facts in support of the emancipation criteria in subsection 7151(b) of this chapter; and
    6. specific facts as to the reasons why emancipation is sought.
  2. A minor may not file a petition under subsection (a) of this section unless the minor has lived in Vermont for three months or longer.

HISTORY: Added 1995, No. 145 (Adj. Sess.), § 1; amended 2009, No. 154 (Adj. Sess.), § 92, eff. Feb. 1, 2011.

History

Amendments

—2009 (Adj. Sess.) Subsec. (a): Inserted “division of the superior” preceding “court” in the introductory paragraph, and substituted “for children and families” for “of social and rehabilitation services” following “commissioner” in subdiv. (4).

§ 7154. Hearing; parties; notice.

  1. Upon the filing of the petition, the court shall schedule a hearing.
  2. The minor’s parents, guardian, or other person charged with the custody of the minor shall be parties to the proceedings and shall be given an opportunity to be heard.
  3. At least 30 days prior to the hearing, notice shall be given to the minor’s parents, guardian, or other person charged with the custody of the minor, unless the court finds that their addresses are unknown, or that there are other reasons notice cannot be given.
  4. If the minor has been committed to the custody or guardianship of the Commissioner for Children and Families, or a petition has been filed to commit the minor to the custody of the Commissioner, the Commissioner shall be a party to the action under this chapter.
  5. Any action under this chapter may be consolidated with any other action in the Probate Division of the Superior Court involving the interest or welfare of the minor.
  6. The burden of proving facts necessary to sustain the petition shall be on the minor and shall be by a preponderance of the evidence.

HISTORY: Added 1995, No. 145 (Adj. Sess.), § 1; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments

—2009 (Adj. Sess.) Substituted “probate division of the superior court” for “probate court” in subsec. (e).

§ 7155. Findings; order of emancipation.

  1. After completion of the hearing and consideration of the record, the court shall make findings and issue its order. If the court finds that the minor meets the criteria in subsection 7151(b) of this chapter and that emancipation would be in the best interests of the minor, the court shall forthwith issue an order of emancipation.
  2. At the time of the hearing under this section, the court shall consider the best interests of the minor in accordance with the following criteria:
    1. emancipation will not create a risk of harm to the minor;
    2. the likelihood the minor will be able to assume adult responsibilities;
    3. the minor’s adjustment to living separate and apart from his or her parents, guardian, or custodian; and
    4. the opinion and recommendations of the minor’s parents, guardian, or custodian.
  3. In ascertaining the best interests of the minor under this section, the court shall consider the appointment of a guardian ad litem.
  4. Any order of guardianship or custody shall be vacated before the court may issue an order of emancipation. Other orders of any division of the Superior Court may be vacated, modified, or continued in this proceeding if such action is necessary to effectuate the order of emancipation. Child support orders relating to the support of the minor shall be vacated, except for the duty to make past-due payments for child support, which, under all circumstances, shall remain enforceable.
  5. The court may require an emancipated minor to report periodically to the court or to another person specified by the court, regarding the minor’s compliance with the provisions of subsection 7151(b) of this title. Failure to report as required may result in the emancipation order being vacated upon notice to the parties.
  6. An order of emancipation shall be conclusive evidence that the minor is emancipated.

HISTORY: Added 1995, No. 145 (Adj. Sess.), § 1; amended 2009, No. 154 (Adj. Sess.), § 93.

History

Amendments

—2009 (Adj. Sess.) Subsec. (d): Substituted “orders of any division of the superior court” for “orders of the family or probate court” and made minor changes in punctuation in the second sentence.

§ 7156. Effect of emancipation.

  1. The order of emancipation shall recognize the minor as an adult for all purposes that result from reaching the age of majority, including:
    1. entering into a binding contract;
    2. litigation and settlement of controversies, including the ability to sue and be sued;
    3. buying or selling real property;
    4. establishing a residence except that an emancipation order may not be used for the purpose of obtaining residency and in-state tuition or benefits at the University of Vermont or the Vermont State Colleges;
    5. being prosecuted as an adult under the criminal laws of the State;
    6. terminating parental support and control of the minor and their rights to the minor’s income;
    7. terminating parental tort liability for minor; and
    8. indicating the minor’s emancipated status on driver’s license or identification card issued by the State.
  2. The order of emancipation shall not affect the status of the minor in the applicability of any provision of law which requires specific age requirements under the State or federal constitution or any State or federal law, including laws that prohibit the sale, purchase, or consumption of alcoholic beverages to or by a person under 21 years of age.

HISTORY: Added 1995, No. 145 (Adj. Sess.), § 1; amended 2017, No. 83 , § 145.

History

Amendments

—2017. Subsec. (b): Substituted “alcoholic beverages” for “intoxicating liquors”.

§ 7157. Recognition of out-of-state emancipation orders.

A minor who is emancipated by the lawful procedure of another state shall retain that status in this State and shall enjoy the benefits of this chapter while in this State.

HISTORY: Added 1995, No. 145 (Adj. Sess.), § 1.

§ 7158. Order of emancipation obtained by fraud or withholding material information; voidability; effect on rights and obligations; commencement of proceeding.

  1. An order of emancipation obtained by fraud or by the withholding of material information shall be voidable. The voiding of any such order pursuant to this section shall not alter any contractual obligations or rights or any property rights or interest which arose during the period that the order was in effect. However, any such obligation, right, or interest, which benefits a person who caused or participated in the fraud or withholding of material information, may be canceled by the minor.
  2. A proceeding under this section may be commenced by any person or by any public or private agency. Notice of the commencement of the proceeding shall be consistent with the requirements of the initial hearing as required by this chapter.

HISTORY: Added 1995, No. 145 (Adj. Sess.), § 1.

§ 7159. Legislative intent; minimum expense; forms.

It is the intent of the General Assembly that proceedings under this chapter shall be as simple, informal, and inexpensive as possible as these terms are used in subsection 5531(a) of this title, and to that end, the Court Administrator shall prepare and distribute to the clerks of the Probate Division of the Superior Court appropriate forms for the proceedings which are suitable for use by minors appearing on their own behalf.

HISTORY: Added 1995, No. 145 (Adj. Sess.), § 1; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments

—2009 (Adj. Sess.) Substituted “probate division of the superior court” for “probate court” wherever it appears.