Opinion
Opinion filed January 14, 1930.
Mortgages — Appeal from Foreclosure Decree — Power of Chancellor under G.L. 1561 To Prescribe Reasonable Conditions — Effect of Failure To Comply with Conditions Fixed by Chancellor.
1. Under G.L. 1561, providing that appeal in foreclosure proceeding may be taken only by permission of chancellor and in his discretion, in exercise of such discretion he has authority to impose reasonable conditions.
2. Where in proceeding to foreclose a mortgage, plaintiff had decree, and one of defendants asked leave to appeal, and request was granted upon condition that he file bond in specified sum within time fixed, held that, bond not having been filed, appeal was not perfected, and case was not in Supreme Court.
APPEAL IN CHANCERY. From a decree for plaintiff in foreclosure proceeding, heard at the April Term, 1929, Windham County, Buttles, Chancellor, one of defendants asked leave to appeal, which was granted upon condition that bond in a specified sum be filed within a time fixed. Appeal was filed without bond being furnished. In Supreme Court, plaintiff's objection to appeal was treated as a motion to dismiss appeal. Appeal dismissed.
Carpenter Clawson for the defendant.
Frank E. Barber for the plaintiff.
Present: WATSON, C.J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.
This is a proceeding to foreclose a mortgage upon real estate. The plaintiff had a decree and one of the defendants asked leave to appeal to this Court. Leave was granted by the chancellor upon condition that the appellant file, within a time fixed, a bond for $5,000, conditioned to indemnify and save harmless the plaintiff from all loss or damage that he may suffer by reason of said appeal. The appeal was filed without furnishing the required bond.
The defendant contends that the court was without authority in imposing such a condition. Motion to dismiss the appeal was not filed, but we treat the plaintiff's oral objection to the same as equivalent to such a motion.
By G.L. 1561, appeals in proceedings of this character can be taken only by permission of the chancellor and in his discretion. In the exercise of such discretion he has the authority to impose reasonable conditions.
We cannot say that the bond required in this case is an unreasonable condition, and whether or not it was an abuse of discretion to order it, we do not decide, that question not being before us. The bond not having been filed the appeal was not perfected. The appeal was, therefore, unauthorized and the case is not in this Court. Appeal dismissed.
NOTE. — WATSON, C.J., sat in the hearing of this case, but by reason of his death, did not take part in its decision.