City Bank & Trust v. Lyndonville Savings Bank & Trust Co.

Annotate this Case

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 91-332

                            OCTOBER TERM, 1991

City Bank & Trust                 }          APPEALED FROM:
     v.                           }          Caledonia Superior Court
Lyndonville Savings Bank          }
and Trust Company                 }          DOCKET NO. S158-89CaC

             In the above entitled cause the Clerk will enter:

     Appellant's motion for relief from the entry order of October 8, 1991
dismissing this matter is denied.  Timely filing of a notice of appeal is a
prerequisite to this Court's exercise of jurisdiction.  In re Stevens, 149
Vt. 199, 200-01, 542 A.2d 256, 257 (1987).  The notice of appeal "shall be
filed . . . within 30 days of the date of entry of the judgment."  V.R.A.P.
4.  The superior court upon motion may grant an extension of time for filing,
id., but no such motion was made herein.  If a notice of appeal mistakenly is
filed in this Court, the clerk "shall note thereon the date on which it was
received and transmit it to the clerk of the superior court . . . and it shall
be deemed filed in the superior court . . . on the date so noted."  Id.
(Emphasis added.)

     Appellant did not "file" its notice of appeal in the superior court by
mailing it on the 30th day after judgment.  "Timely filing means filing at
the designated place within the designated time,"  State Farm Mut. Auto Ins.
Co. v. Schultz, 281 Pa. Super. 212, 218, 421 A.2d 1224, 1227 (1980), and
"[t]o deposit in the custody or among the records of a court."  Black's Law
Dictionary 566 (5th ed. 1979).  Both the civil and appellate rules provide
exceptions to the rule that documents must be received on the date due, see
V.R.C.P. 6(e) (three extra days where party served by mail); V.R.A.P. 26(c)
(same); V.R.A.P. 25(a) (briefs and printed case dated as of mailing), but they
do not apply to the filing of a notice of appeal.

     Appellant's motion for relief from entry order is denied

                                   BY THE COURT:

                                   Frederic W. Allen, Chief Justice

                                   Ernest W. Gibson III, Associate Justice

                                   John A. Dooley, Associate Justice

[ ] Publish                        James L. Morse, Associate Justice

[ ] Do Not Publish                 _______________________________________
                                   Denise R. Johnson, Associate Justice