This is an action of tort to recover damages for the alienation of the affections of the plaintiff's wife, Margaret Fleming Fitzpatrick. A trial was had by jury at the April Term, 1924, of the Windham county court, resulting in a verdict for the plaintiff. During the trial and also after the verdict was rendered, exceptions were saved by the defendant to certain rulings of the court, and his bill of exceptions, signed by Superior Judge Moulton in the absence from the State of Superior Judge Fish who presided at the trial (G.L. 2261), was filed on August 8, 1924, subject to amendment within sixty days. By the exceptions so filed the transcript of the evidence is referred to and made to control.
The plaintiff, by his motion filed, asks that the exceptions be dismissed and the judgment affirmed on two grounds: (1) That the time for defendant to file his amended bill of exceptions expired October 23, 1924, and no date after the expiration of such time was fixed by the court for the filing of such amended bill, as provided by G.L. 2258; (2) that rule 5, § 1, of the amended rules of the Supreme Court, has not been complied with, in that the defendant has not prepared and deposited with the clerk of the court any printed copies of the case, the time for so doing having long since expired; and (3) that rule 6 has not been complied with, in that the defendant has not filed any printed briefs with said clerk, though more than thirty days have elapsed since a completed bill of exceptions can be treated as filed. *Page 218
It is enough to say of ground (1) that there is nothing on the face of the bill of exceptions showing that no date after October 23, 1924, was fixed by the court for the filing of the amended bill. The motion to dismiss reaches only such defects as are apparent on the face of the bill to dismiss which the motion is filed. Reynolds v. Conway, 61 Vt. 313, 17 A. 842; ChamplainRealty Co. v. Brattleboro, 97 Vt. 28, 121 A. 580.
As to grounds (2) and (3), the time of completing the bill of exceptions by filing the transcript, does not appear on the face of the bill sought, by the motion to have dismissed, and so non-compliance with the rules mentioned, is not there shown. By rule 6, § 1, when the bill of exceptions refers to the transcript and makes the same controlling, the filing of the transcript is deemed the completion of the exceptions, for the purposes of that and the preceding rule. Therefore as noncompliance with these rules in the respect asserted in the motion does not appear on the face of the bill of exceptions, the motion is unavailing for the same reason stated as to ground (1).
The defendant has filed in this Court an original petition for a new trial on the alleged ground of newly discovered evidence. Attached to the petition is the affidavit of the plaintiff's wife, Margaret Fleming Fitzpatrick, and the affidavit of Dr. B.E. White, showing the evidence on which the petition is based as newly discovered. It is asserted in the petition that the alleged newly discovered evidence tends to show collusion and conspiracy between the plaintiff and his said wife in the bringing and prosecution of said suit to obtain damages from the defendant, and that the latter will avail himself of such a defense if a new trial of said cause be granted. The plaintiff, by his motion, in effect admits the allegations of the petition, but sets forth five reasons why the petition should be dismissed. It is enough to say of the first, third, fourth, and fifth, of those reasons that no one of them appears on the face of the petition, and so, on the authorities already cited, none is reached by the motion.
The second reason set forth is, that "The evidence relied upon would be inadmissible because it would be a violation of marital confidence and is thus within the exception stated in Section 1894 of the General Laws."
By the provisions of that section it is the established general rule that husband and wife are competent witnesses for or *Page 219 against each other in all cases, one of the exceptions stated being that neither shall 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." It has been held that the court to which reference is there made is the trial court and its determination of the question is ordinarily not reviewable. State v. Nieburg, 86 Vt. 392, 85 A. 769; State v. Muzzy, 87 Vt. 267,88 A. 895. With the law standing thus, we are not disposed, in the circumstances of this case, to dismiss the petition on that ground of the motion, with no further information concerning the matter than is obtainable from the petition itself, beyond the face of which the motion does not reach. To what extent, if at all, this Court will inquire concerning that question when presented upon evidence bearing on the petition, we do not now consider.
The exceptions and the petition for a new trial will stand for hearing together.
The motion to dismiss the exceptions is denied, as is also themotion to dismiss the petition for a new trial.