Opinion
Opinion filed November 4, 1931.
Chancery Appeals — Necessity of Bill of Exceptions To Make Available Exceptions to Exclusion of Evidence — Questions Raised by Appeal Where No Bill of Exceptions Filed — Failure To Point Out Wherein Decree Is Unwarranted by Pleadings or Unsupported by Findings.
1. Exceptions to exclusion by chancellor of offered evidence are not brought to Supreme Court, where no bill of exceptions is signed and filed as required by statute, although so-called unsigned "bill of exceptions" was filed with appeal.
2. Only question brought to Supreme Court by appeal, where no bill of exceptions is signed and filled, is whether decree is warranted by pleadings and supported by findings.
3. Where defendant, on appeal only raising question whether decree is warranted by pleadings and supported by findings, fails to point out wherein decree is unwarranted or unsupported, no question is presented for review.
PETITION to foreclose mortgage, containing motion to shorten time, under which testimony was taken by both parties. Answer admitting allegations in petition essential to decree, but claiming allowance for certain alleged credits and asking for usual time to redeem. Heard on pleadings and testimony relating to shortening of time for redemption and findings of fact at the March Term, 1931, Bicknell, Chancellor. Decree for plaintiff, for full amount of mortgage debt and redemption. The defendant appealed. Affirmed.
W.C. Lindsay for the defendant.
Walter H. Cleary for the plaintiff.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
This is a petition to foreclose a mortgage. A motion to shorten the time of redemption is included in the petition, and testimony thereon was taken by both parties on depositions pursuant to section 6 of chancery rule 38. The defendant in his answer admits, in effect, the allegations of the petition, which are essential to entitle the plaintiff to a decree, but he claims allowance in the accounting for certain alleged credits, and also asks for the usual time of one year to redeem. Decree was for plaintiff, with shortened time of redemption, and the defendant appeals.
The chancellor found that "there are no offsets against the mortgage debt, as claimed by the defendant," and that "the mortgaged premises are inadequate security for the mortgage indebtedness." No exceptions to the findings were taken and filed under chancery rule 39. The defendant, on the trial before the chancellor, was allowed exceptions to the exclusion of certain evidence offered by him, and in his brief, he argues these exceptions as questions before us for consideration and review. But these exceptions are not before us. They are not brought up by the appeal for the reason that a bill of exceptions has not been signed and filed as required by statute. Fire District v. Graniteville Spring Water Co., 102 Vt. 511, 150 A. 459; Clifford v. West Hartford Creamery Co., 103 Vt. 229, 153 A. 205, 208; Stevens v. Flanders, 103 Vt. 434, 154 A. 673. A so-called "Bill of Exceptions" was filed with the appeal, but it is not signed by the chancellor. See G.L. 1511, 2258. In the absence of the required signature to the bill, we are without jurisdiction to pass upon trial exceptions. Hunt v. Paquette, 102 Vt. 403, 404, 148 A. 752; Tucker v. Yandow, 100 Vt. 169, 171, 135 A. 600.
The appeal, without a bill of exceptions duly signed and filed, brings up only the question whether the decree is warranted by the pleadings and supported by the findings. Stevens v. Flanders, supra, and cases there cited. Since the defendant does not point out wherein the decree is unwarranted or unsupported, the appeal presents no question for review.
Decree affirmed, and cause remanded. Let a new time of redemption be fixed below.