Walsh v. Cole , 97 Vt. 459 ( 1924 )

This is a petition for a new trial brought by defendant in Cole v. Walsh, 97 Vt. 256, 122 A. 664, who lost the benefit of his exceptions as therein stated. From the evidence before us we find that the petitioner's failure to file his bill of exceptions in that case within the time limited by statute was due solely to the reliance of counsel, to whom was committed the entire care, management, and responsibility of the defendant's case, upon rule 5 of the county court rules, which required the clerk to notify him of the entry of the judgment therein. This the clerk failed to do. Had he done so, we are satisfied that the bill of exceptions would have been prepared, signed, and filed in due season, and that the failure to do so was without the fault of defendant or his counsel.

The statute under which the petition is brought (G.L. 2296) is remedial in nature, and should and does receive a liberal construction. Nelson v. Marshall, 77 Vt. 44, 58 A. 793; Webb v.State, 90 Vt. 65, 96 A. 599. Lack of diligence of the petitioner or his counsel, will, to be sure, defeat the application (Webb v. State, supra), but this charge cannot be made against one who rightly relies upon the rules of the court. The provisions of the rule are mandatory, and defendant's counsel had a right to rely upon them. Hotel Vermont v. Cosgriff, 89 Vt. 173, 94 A. 496. It is said in In Re Ketchum, 92 Vt. 280, 102 A. 1032, "that every petition for a new trial, brought conformably to law, must fail or prevail according to the strength of the appeal it makes to the judgment and conscience of the court." This case does not essentially differ from Nelson v.Marshall, supra, where the loss of the exceptions was due solely to accident or the mistake of the presiding judge; or from HotelVermont v. Cosgriff, supra, where the loss of the exceptions was, as here, due solely to the fault of the clerk of the court; or from Reynolds v. Romano, 96 Vt. 222, 118 A. 810, where the loss of the exceptions was due solely to the fault of the court reporter.

The constitutional question raised need not be considered.

Judgment reversed, verdict set aside, and new trial granted.