William M. Osgood v. William E. Brown

• Decision Date: 04 May 1937
• Citation: 192 A. 26,109 Vt. 34
• Parties: WILLIAM M. OSGOOD v. WILLIAM E. BROWN
• Court: Vermont Supreme Court

192 A. 26

109 Vt. 34

WILLIAM M. OSGOOD v. WILLIAM E. BROWN

Supreme Court of Vermont

May 4, 1937

February Term, 1937.

Petition Raising Question Determined in Prior Foreclosure Suit---Not Within P. L. 1331 re Amendments in Chancery Suits.

1. Where decree of foreclosure had been affirmed in Supreme Court without consideration of questions which defendant sought to raise because of his failure to file bill of exceptions, and on appeal taken in subsequent proceedings to ascertain damages and costs occasioned by first appeal Supreme Court had held that question, which defendant attempted to raise for first time in such proceedings, as to whether proceeds of fire insurance policy had been properly applied by mortgagee, was covered by foreclosure decree, on appeal from dismissal of defendant's petition denying that with proper application of insurance money there was anything due mortgagee, denying that mortgagee was entitled to decree and praying that he be ordered to deliver premises to defendant and that an accounting be had, held that such petition was for sole purpose of getting rehearing on questions that were, or should have been, determined in foreclosure suit, that there was no justification for such rehearing and that petition was properly dismissed.

2. Petition filed by defendant after decree in foreclosure proceedings had been affirmed, denying that there was anything due plaintiff when decree was rendered and that he was entitled to decree, and praying that he be ordered to deliver possession to the defendant and that an accounting be had, was not a petition for leave to amend the exceptions or pleadings in the foreclosure suit within the terms of P. L 1331, but was a new and independent suit.

APPEAL IN CHANCERY. Petition by defendant in prior foreclosure proceedings praying that mortgagee be ordered to deliver mortgaged premises to him and for an accounting. The petitionee moved to dismiss the petition. Heard on motion to dismiss at the September Term, 1936, Caledonia County Shields, Chancellor. Petition dismissed. The petitioner excepted. The opinion states the case. See, also, 104 Vt. 87 156 A. 876, and 107 Vt. 407, 180 A. 888.

Decree dismissing the petition affirmed and cause remanded.

W. C. Lindsay for the petitioner.

Hubert S. Pierce for the petitionee.

Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

SLACK

In December, 1930, Brown brought suit against Osgood to foreclose a real estate mortgage. Osgood appeared and such proceedings were had that findings of fact by the chancellor were filed April 11, 1931. By written consent of the parties supplemental findings were filed May 11, 1931, which showed that Brown had received $ 800, the insurance on the house on said premises that burned shortly before such suit was commenced, which was to be applied on the mortgage debt. It was found, too, that the premises were inadequate security for such debt. On May 12, 1931, a decree was entered for Brown, with a short time of redemption, from which Osgood appealed. The only questions he sought to have reviewed were raised by exceptions taken to the rulings of the chancellor on the hearing before him. But, since no bill of exceptions was signed and filed as required by statute, G. L. 1511, 2258 (P. L. 1269, 2068); Stevens v. Flanders 103 Vt. 434, 154 A. 673, and cases cited, his appeal availed him nothing, and the decree was affirmed and cause remanded, with directions that a new time of redemption be fixed. See Brown v. Osgood, 104 Vt. 87, 156 A. 876. Under the time of redemption so fixed, the decree became absolute November 18, 1931, whereupon Brown took possession of the premises. When the appeal was taken, Osgood was ordered to, and did, file a bond to secure the payment of intervening damages and costs occasioned thereby. On May 21, 1934, a hearing was had before the chancellor to ascertain the amount of such damages and costs. Osgood appeared by his solicitor, and moved to "abate" the hearing on the ground that there was nothing due Brown on...