Ludlow Savings Bank & Trust Co. v. Knight

The plaintiff brought a petition in chancery therein seeking to foreclose a mortgage covering premises on which defendant held a second mortgage. The defendant seasonably entered his appearance therein, but did not make answer or file an affidavit of defence. Ch. Rule 38. In due course, the petition was taken as confessed, and the sum due in equity was found by the clerk. From this assessment the defendant appealed to the chancellor. The assessment was sustained and a decree made accordingly. The defendant seasonably filed his motion for an appeal, but the chancellor did not grant permission therefor. The plaintiff files a motion to dismiss this attempted appeal.

Chancery appeals are a matter of statute, and it is only by force of the statute that such an appeal can be had. Gove v. Gove’s Adm’r, 87 Vt. 468, 89 Atl. 868. By the express terms of P. S. 1307, an appeal from a decree of foreclosure can only be had by permission of the court. And this is an appeal or at^ tempted appeal from a decree of foreclosure, though the only controversy is over the sum due in equity. But this fact does not change the character of the decree. To hold otherwise would be to nullify the plain and positive terms of the statute. The case is not here, but remains in the court of chancery. Abbott v. Sanders, 83 Vt. 165, 74 Atl. 1058; Tudor v. Kennett, 88 Vt. 291, 92 Atl. 213.

Appeal dismissed, with costs.