Opinion
No. 372-80
Opinion Filed September 1, 1981
1. Courts — Assistant Judges — Equity
A suit in equity should be heard alone and exclusively by the presiding superior judge; assistant judges should have no role in such matters, and their presence is improper.
2. Courts — Assistant Judges — Equity
Where assistant judges sat at hearing and participated in making findings of fact and conclusions of law in action for specific performance and damages in superior court, court was improperly constituted as result of participation of assistant judges, whose presence is improper in cases sounding in equity.
Appeal from judgment requiring defendant to convey real property and pay damages. Franklin Superior Court, Gibson, J., presiding. Reversed and remanded.
David M. Yarnell and Daniel J. Lynch of John Kissane Associates, St. Albans, for Plaintiffs.
James L. Levy and Michael Rose, Law Offices of James L. Levy, St. Albans, for Defendant.
Present: Barney, C.J., Larrow, Billings, Hill and Underwood, JJ.
Plaintiffs brought an action for specific performance and damages. Defendant answered and counterclaimed for damages. The action was heard by a court consisting of a presiding judge and two assistant judges.
The court ordered defendant to convey the real property at issue to the Machias and pay damages to the Machias and Maskell. It was further ordered that Maskell pay defendant one dollar on his counterclaim. From this order, defendant appeals. We reverse.
In Pockette v. LaDuke, 139 Vt. 625, 432 A.2d 1191 (1981), we held that a suit in equity should be heard alone and exclusively by the presiding superior judge. Assistant judges have no role in these matters, and their presence is improper. The record in this case reveals that the assistant judges not only sat at the hearing but participated in making the findings of fact and conclusions of law.
As this case sounds in equity and as the assistant judges participated in the hearing, we hold that this court was improperly constituted. Since this circumstance clearly affected the eventual result, we remand for retrial on all matters still at issue.
Reversed and remanded.