Perry v. Whitney
Supreme Court of Vermont
Book Account. This action was originally brought before a justice of the peace by the plaintiff and his wife, to recover for the services of the latter before her marriage. The wife testified at the trial before the justice, but died after the appeal and the entry of the case in the county court, and her death was suggested on the record prior to the hearing before the auditor.
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Book Account. This action was originally brought before a justice of the peace by the plaintiff and his wife, to recover for the services of the latter before her marriage. The wife testified at the trial before the justice, but died after the appeal and the entry of the case in the county court, and her death was suggested on the record prior to the hearing before the auditor. The defendant objected before the auditor that the plaintiff had no right to prosecute the suit after the death of his wife; but the auditor decided that this was not a proper question for his consideration, and…
1Opinion of the Court
The opinion of the court was delivered by
Pierpoint, J.
It appears from this case, that on the trial before the auditor, it was insisted that in consequence of the death of the wife of the plaintiff, who was originally a party plaintiff (the action having been brought to recover for her services before *392marriage), the plaintiff had no right further to prosecute this suit.
The auditor decided, and we think correctly, that this question was not one for him to decide.
This question should have been brought before the county court, on a proper motion for that purpose.
It does not appear from this case,…
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