Lyons v. Ross

196 A.2d 576 (1963)

Mildred LYONS v. James C. ROSS.

No. 302.

Supreme Court of Vermont. Chittenden.

December 19, 1963.

*577 Joseph S. Wool, Burlington, for plaintiff.

A. Pearley Feen, Burlington, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and SYLVESTER, JJ.

PER CURIAM.

A verdict for the defendant was set aside and a new trial ordered. From this order the defendant seasonably requested permission of the court to appeal before final judgment by presenting an instrument for the trial court's signature, which would have granted permission to take an appeal under the provisions of 12 V.S.A. § 2386. Whereupon, this docket entry was made, "the court refused to sign."

On August 12, 1963 the defendant filed a notice of appeal from both the order setting aside the verdict, and from the refusal of the trial court to grant permission to take an appeal before final judgment. The plaintiff has moved to dismiss the appeals.

Appeals before final judgment can only be taken by permission of the court whose order is sought to be reviewed. Without such permission there is no appellate jurisdiction. 12 V.S.A. § 2386. Murphy Motor Sales v. First National Bank of Johnsbury, 121 Vt. 404, 405, 159 A.2d 94; Roy v. Roy, 123 Vt. 92, 182 A.2d 337; Brown v. Brown, 121 Vt. 283, 284, 155 A.2d 748.

Our relinquishment of this case for jurisdictional reasons is not to be regarded as an approval of the method adopted by the trial court in disposing of the questions which the defendant seeks to have reviewed. To the contrary, the procedure followed was inconsistent with the orderly and impartial administration of justice. We think the defendant was entitled to an indication from the trial court as to its reasons for setting aside the verdict and ordering a new trial. See Grow v. Wolcott, 123 Vt. 490, 194 A.2d 403, 407 (1963). Furthermore, the defendant should have been granted a hearing on his request for permission to appeal before final judgment, and the court should have stated the reasons why permission was denied.

The defendant's appeal is dismissed.