Schott v. Baker, 212-72

• Decision Date: 01 October 1974
• Docket Number: No. 212-72,212-72
• Parties: Edward N. SCHOTT and Rosable V. Schott et al. v. Robert J. BAKER et al.
• Court: Vermont Supreme Court

Page 157

326 A.2d 157

132 Vt. 564

Edward N. SCHOTT and Rosable V. Schott et al. v. Robert J. BAKER et al.

No. 212-72.

Supreme Court of Vermont.

Oct. 1, 1974.

Dick, Hackel & Hull, Rutland, for plaintiffs.

Bloomer & Bloomer, Rutland, for Karl and Margaret Schiessl, petitioning intervenors.

Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.

BARNEY, Chief Justice.

The present appeal derives from a foreclosure action. The appealing parties are Karl and Margaret R. Schiessl, who sought to intervene below and had their petition to that end denied. It is their claim that they are creditors who commenced an action against the defendant Baker by attaching his property in Sherburne, Vermont. Counsel on appeal did not try the matter below.

To better understand the case, it is necessary to begin with the action for foreclosure commenced by the plaintiffs Schott against Baker in December, 1971. A number of creditors of record were joined, but the Schiessls were not. On September 22, 1972, a judgment of foreclosure was entered in Rutland County Court. September 29, 1972, was the last day upon which any named defendant could redeem the property. Two days before that time, September 27, the Schiessls filed their motion for permission to intervene.

The lower court had a hearing on September 29, and took judiciall notice of the record in the pending action of the Schiessls against Baker. The court found that the motion to intervene was not timely filed, that the intervenors failed to demonstrate sufficient interest in the property in question to justify granting intervention, and that denial of their motion would not be shown to impair or impede their ability to protect their interests. Upon those grounds, the court denied intervention.

At the time the court judicially noticed the record in Schiessl v. Baker, that record contained no writ of attachment. At no time during the hearing was the writ of attachment introduced into evidence. Nor was a certified copy tendered in lieu of the original as authorized by 4 V.S.A. §§ 732 or 733. Thus, the court was left without evidence to fulfill the requirement of V.R.C.P. 24(a), which required the Schiessls to demonstrate an interest relating to the property which is the subject of the action, in order to be allowed to intervene. This Court will not reverse a trial court on the basis of essential evidence which could have been, but was not, presented to it for consideration. Facts will not be here supplied,...