Opinion
No. 51-74
Opinion Filed October 7, 1975
1. Appeal and Error — Appeal Before Final Judgment
Where no form of judgment was submitted to the court or executed by it, as required by rule as it then read, but the court entered judgment, appeal was an appeal before final judgment. V.R.C.P. 80.1(f).
2. Appeal and Error — Appeal Before Final Judgment
Appeal before final judgment would be dismissed where it was never requested or granted under rule and the requisite findings and order were never made. V.R.A.P. 5(b)(1).
Appeal before final judgment. Superior Court, Windsor County, Billings, Jr., J., presiding. Dismissed and remanded.
Edward R. Kiel, Esq., and Whitcomb, Clark Moeser, Springfield, for Plaintiff.
Sarah E. Vail of Ainsworth Richards, Springfield, for Defendant.
Present: Barney, C.J., Smith, Daley and Larrow, JJ. and Keyser, J. (Ret.) Specially Assigned
At a previous term of this Court, on the basis of an incomplete record, we remanded an attempted appeal in this foreclosure action because the permission for review required by 12 V.S.A. § 4601 had not been obtained. After further proceedings below, such permission was obtained, and notice of appeal filed by the defendant. We directed the filing of a supplemental printed case.
With the complete record now before us, it appears that this is an attempted appeal before final judgment, without compliance with V.R.A.P. 5(b)(1). It is an appeal before final judgment because, although the trial court entered judgment of foreclosure under then V.R.C.P. 80.1(e), no form of judgment (formerly called a foreclosure decree) was ever submitted to the court or executed by it, as required under then V.R.C.P. 80.1(f). No redemption time, or amount, has ever been set by the trial court.
Appeal before final judgment was never requested, or granted, under V.R.A.P. 5(b)(1), and the requisite findings and order were never made. The appeal must be dismissed.
Appeal dismissed and cause remanded.