The Vermont Statutes Online

Title 12: Court Procedure

Chapter 101: New Trials; Appeals for Fraud, Accident, or Mistake

• §§ 2351-2356. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• § 2357. Appeals in probate proceedings—Fraud, accident, or mistake

  When the petitioner has been prevented from taking or entering an appeal in a probate proceeding by fraud, accident, or mistake, on petition and proof thereof, the Supreme or Superior Court in its discretion may grant leave to file a notice of appeal from an order, sentence, decree, or denial of the Probate Division of the Superior Court or from a determination of commissioners on the estate of a deceased person in those cases which are by law appealable. (Amended 1959, No. 261, § 55; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 73, eff. Feb. 1, 2011.)

• § 2358. Service of petition; time limitation

  The petition shall be filed and served on the adverse party like a summons and complaint. The adverse party shall file and serve an answer. The petition shall not be sustained unless it is preferred within two years after the alleged fraud, accident, or mistake happened, provided that the petition shall be brought before the estate is fully settled in the Probate Division of the Superior Court. (Amended 1971, No. 185 (Adj. Sess.), § 52, eff. March 29, 1972; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

• §§ 2359-2361. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

• § 2362. Recognizance on petition to enter an appeal

  A petition to enter an appeal shall not issue until a Justice of the Supreme Court, the presiding judge, or a district judge of the court having jurisdiction of the same, as the case may be, has taken sufficient security by way of recognizance to the adverse party, which shall be minuted on the summons or petition, conditioned that, if the petitioner fails to prosecute his or her petition to effect or finally to recover in the action, he or she will pay the adverse party the intervening damages and costs accruing to him or her by reason of such petition. (Amended 1971, No. 185 (Adj. Sess.), § 54, eff. March 29, 1972.)

• § 2363. Stay of proceedings; bail and liens not affected

  In his or her discretion, a justice or judge of the court having jurisdiction of such petition, by an order signed by him or her, may direct a stay of proceedings on the judgment, whether execution has issued or not, until a final decision is made upon such petition. Such stay of proceedings shall not operate to discharge or release bail or extinguish or prevent the perfecting of a lien which the petitionee has acquired upon the property of the petitioner by attachment or levy of execution.

• § 2364. Repealed. 1971, No. 185 (Adj. Sess.), § 237 eff. March 29, 1972.

• § 2365. Copy of process and recognizance to be filed

  The magistrate ordering a stay of proceedings shall take a copy of the process and recognizance, and file the same in the office of the clerk of the court to which the petition is made returnable or with the judge of the court, if it has no clerk.

• § 2366. Failure to prosecute petition

  If the petition is not served or filed within such time as the Supreme Court may by rule provide for the service or filing of the complaint in a civil action in a Superior Court, the action may be dismissed on motion and notice. The Court shall thereupon render judgment for the petitionee to recover his or her costs, and, if the Court is of opinion that the petition was brought to delay the collection of an execution, it shall award to the original creditor 12 percent interest on the original debt, with double costs. (Amended 1971, No. 185 (Adj. Sess.), § 55, eff. March 29, 1972.)