Reporter’s Notes—2020 Amendment: Rule 62(a)(3)(A) is amended to delete a comma after the word “chattel” in the second line to eliminate an ambiguity. The 14-day limit applies to issuance of an order of possession as well as to commencement of enforcement proceedings, consistent with the original intent of paragraph (3) to provide “a single uniform procedure for final judgements in all possessory actions.” See Reporter’s Notes to 1996 amendment adding Rule 62(a)(3).
Reporter’s Notes—2018 Amendment: Rule 62(a)(3)(A)-(B) is amended to extend its 10-day and 20-day time periods to 14 and 21 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.
Reporter’s Notes—2010 Amendment: Rule 62(a) is amended for consistency with 12 V.S.A. § 4854, as amended by Act 176 of 2007 (Adj. Sess.), § 52. The statutory amendment provided that the writ of possession in action of ejectment under 12 V.S.A. §§ 4851-4856 should issue on the date of entry of judgment, rather than ten days thereafter as previously provided, unless a stay is ordered for good cause. The amendment also extends the date after which the sheriff is to put the plaintiff in possession from five to ten days after the writ is served. The amendment divides Rule 62(a)(3) into subparagraphs (A)-(C). For reasons outlined in the Reporter’s Notes to the 1996 addition of paragraph (3), subparagraph (A) preserves the language of the existing rule covering orders for possession of a chattel. Subparagraph (B) adapts the provisions of the amended statute to the structure of the rule, preserving the ten-day period after entry of judgment in which a motion for a stay may be made. Subparagraph (C) preserves the language of the present rule concerning the terms of a stay and the effect of a motion for judgments for possession of both real property and chattels.
Reporter’s Notes—2008 Amendment: Rule 62(a)(4) is added to make clear that, just as in original actions in the probate courts, there is no automatic stay of the listed orders when the decision of a probate appeal in the superior court is appealed to the Supreme Court. The new language is taken verbatim from V.R.P.P. 62(a). Cf. V.R.F.P. 12(a)(2)(A). These rules and new paragraph (4) reflect the concern that a disabled adult, a minor being adopted, or a child who is the subject of a custody decision should have the immediate protection of the order rather than remain potentially unprotected during the pendency of an appeal. Rule 62(a)(1) is amended to refer to the new paragraph.
Reporter’s Notes—1996 Amendment: Rules 62(a) and (d) are reorganized and amended to make clear the rules pertaining to stays prior to and pending appeal where judgment for possession of real estate or a chattel has been awarded. Because former Rule 62(e) has been incorporated in Rule 62(d), former subdivisions (f)-(h) have been redesignated (e)-(g). The apparent intent of the rule as drafted was that only injunction and receivership actions (and the domestic relations and other matters now covered in Family Rule 12) were excepted from the automatic stay provisions of Rule 62(a) and (e). See Reporter’s Notes to Rule 62(a); cf. 11 C. Wright and A. Miller, Federal Practice and Procedure § 2902 (1973). Confusion arises, however, because a number of statutory provisions governing actions for possession of real estate or chattels either indicate that there is no automatic stay, or are silent on the matter. See, e.g., 12 V.S.A. §§ 4528, 4601, and V.R.C.P. 80.1(m) (stay of judgment of foreclosure on filing of motion for permission to appeal); 12 V.S.A. § 4816 (writ of possession on judgment in ejectment stayed when defendant recovers on counterclaim for betterments unless plaintiff pays amount of recovery); § 4854 (writ of possession in lessor’s action of superior court ejectment to issue 10 days after entry of default or summary judgment for plaintiff unless court orders stay for good cause); § 4916 (writ of restitution to issue on judgment of guilty in forcible entry and detainer); § 4996 (writ of possession to issue on motion and notice after judgment of forfeiture of a grant); § 5401 (court orders for restoration of goods replevied); 9 V.S.A. § 2603 (repossession of mobile home). The amendment both clarifies and simplifies the rule. Amended Rule 62(a) applies exclusively to stays in all situations prior to the taking of an appeal. Amended Rule 62(d) covers stays in all situations when an appeal is taken. In each of those subdivisions, specific provision is made for three situations: (1) execution or other enforcement orders in all situations except (2) and (3); (2) interlocutory or final injunction and receivership orders and prejudgment orders for attachment, trustee process, and replevin; (3) orders for possession of real property or chattels after final judgment. The effect of Rule 62(a)(1) is to leave all actions for money damages and other forms of relief that are not covered in paragraphs (2) and (3) (e.g., actions for an accounting) subject to the present procedure for an automatic stay while the time for appeal is running, unless the court orders immediate execution under subdivision (c). Rule 62(a)(2) carries forward the present provision of the rule allowing a stay prior to appeal in injunction and receivership actions only by order of the court. The amendment eliminates references to stays or other relief pending appeal in light of the reorganization of the rule; these matters are now covered exclusively in Rule 62(d)(2). (Note that, by virtue of Rule 81(b), “injunction” includes mandatory or prohibitory relief in the nature of that formerly available by extraordinary writ.) Rule 62(a)(2) applies the same procedure to any interlocutory order (including writs of attachment, trustee process, and replevin) during the period in which an interlocutory appeal may be sought under V.R.A.P. 5 or 5.1. Rule 62(a)(3) is new. It provides a single uniform procedure for final judgments in all possessory actions, including those statutory proceedings listed above. In the new rule, “order for possession” is intended to include writs of possession, replevin, and restitution and any other order for possession of real property or chattels issued after final judgment other than an injunction or receivership order. The provision for an automatic 10-day stay after entry of judgment encompasses the period during which post-judgment motions may be made under Rules 50(b), 52(b), and 59(b) in any action, as well as the 10-day stay on a default or summary judgment in superior court ejectment under 12 V.S.A. § 4854 and the period for motion for appeal by permission from a judgment of foreclosure under Rule 80.1(m). (Note that, because “judgment” includes an order denying permission to appeal under Rule 80.1(m), a new 10-day period begins to run with the entry of such an order.) The rule permits the court on motion to grant a further stay for up to the total period during which an appeal may be taken and provides that the writ is to be stayed until any motion for stay has been determined. Cf. Rule 80.1(m). The stay is to be on such terms, which may include bond or other security, that the court may deem necessary to protect any party. Rule 62(c) is amended to make clear its application in light of the amendments to Rule 62(a). Amended Rule 62(d) governs stays pending appeal when an appeal has been taken in the three categories of action delineated in Rule 62(a). Rule 62(d)(1) carries forward former Rule 62(e), but makes clear that in any action for which Rule 62(a)(1) provides an automatic stay prior to appeal, execution continues to be stayed automatically pending appeal without the need for any bond or security. Rule 62(d)(2) carries forward former Rule 62(d) and, like amended Rule 62(a)(2), now applies to interlocutory appeals, whether taken under V.R.A.P. 5 or 5.1. Cf. V.R.A.P. 5.1(a). Rule 62(d)(3) provides that, in an action for possession of real estate or a chattel, if the property is still in the possession of the party against whom final judgment has been rendered, the court may grant a stay pending appeal of any order for possession, as defined above, including an order denying permission to appeal under Rule 80.1(m). The stay may be on appropriate terms, including bond or other security. This provision is consistent with 12 V.S.A. § 4854 and Rule 80.1(m).
Reporter’s Notes—1991 Amendment: Civil Rule 62 is amended to reflect the adoption of Family Court Rules. Those provisions of Rule 62 which govern proceedings now within the jurisdiction of the family court are covered by new Family Court Rule 12.
Reporter’s Notes—1989 Amendment: Rules 62(a) and (d) are revised to reflect concurrent amendments to Rule 80. Rule 80 now governs parentage actions as well as civil actions for divorce, legal separation, desertion and nonsupport. See Reporter’s Notes, Rule 80—1989 Amendment. Rules 62(a) and (d) therefore now refer to actions under Rule 80 rather than to divorce actions. The result of these changes is to eliminate uncertainty as to the enforceability of orders for custody and support pending appeal. Whether issued as part of a parentage action or some other action under Rule 80, such orders are not stayed pending appeal unless the court specifically issues a stay. By the same token, such order may be the subject of motions to enforce or modify pending appeal. V.R.C.P. 62(d). Rule 80 also is modified to refer to “parental rights and responsibilities” rather than “custody.” This change is founded upon recent statutory revisions. See Reporter’s Notes, Rule 80—1989 Amendment. Rule 62 conforms to this change as well, by replacing the words “care” and “custody” with the term now found in Rule 80.
Reporter’s Notes—1987 Amendment: Rule 62 is amended to clarify the status pending appeal of orders of involuntary treatment, nonhospitalization and hospitalization pursuant to 18 V.S.A. §§ 7611-7623. Under subdivision (a) such orders will join the category of cases in which trial court judgments go into effect upon issuance and remain in effect notwithstanding the pendency of an appeal, unless the trial court orders otherwise. Under subdivision (d), as amended, these orders may be modified, continued or terminated by the trial court during the pendency of the appeal. The rule adopts the procedures and grounds for such orders found in 18 V.S.A. §§ 7611-7623. As with other orders issued under subdivision (d) these rulings must be certified forthwith to the Supreme Court.
Reporter’s Notes—1984 Amendment: Rule 62(b) is amended to create a more workable system to determine when execution may be issued on a default judgment. The former language prohibited issuing execution on a default judgment “against an absent defendant who has no actual notice thereof” for a year. The one year stay was adopted in the rules as a “compromise” with former procedure. See Reporter’s Notes to Rule 60. The compromise has proven not to be workable. Execution is issued by the clerk. See Rule 69. However, the clerk has no way to determine whether a defendant is “absent” or whether the defendant has “actual notice” of the judgment. The amendment adopts the more workable system of requiring that all default judgments be served, with the return of service showing notice to the defendant. Personal service under Rule 4(d) can be used. Alternatively, plaintiff can serve by mail under Rule 4(f) as if the judgment were a summons and complaint being served outside the state. If neither of these methods is available, service can be made by publication. The original intent of Rule 62(b) was to give the defendant a year to move to reopen. See Childs v. Hart, 131 Vt. 241, 303 A.2d 139 (1973). For similar purposes, the amended rule stays execution while the defendant has pending a motion to reopen the default. Thus, if the defendant first learns of the judgment when it is served, he will be able to seek that it be set aside without fear of enforcement in the interim. The amendment will also apply in District Court under D.C.C.R. 62.
Reporter’s Notes—1979 Amendment: Rule 62(a) is amended by deleting specific reference to “the wife” in the provisions concerning proceedings for support or personal liberty, and by adding orders relating to the dissolution of a marriage to the list of orders not automatically stayed during the time for appeal and pending appeal. The purpose of the first amendment is to conform the rule to present reality. The purpose of the second change is to make clear the status of a decree nisi during the pendency of an appeal. The decree continues to run during the appeal period, unless the court stays it. A stay should, of course, be granted if the appeal challenges the grant of divorce. Rule 62(f) is amended to clear up an anomaly in the rule as promulgated. Rule 62(b) provides that a default judgment against an absent defendant shall not be executed upon until one year after entry of judgment. Under Rule 62(f) in its original form, however, an attachment continues during the time for appeal but expires 60 days after the end of the appeal period if no appeal is taken. While it might have been possible to read the rule as extending the appeal period for the year during which execution is automatically stayed by Rule 62(b), the present amendment eliminates any doubt. The amendment provides expressly that an attachment shall continue during any period of stay of execution of the judgment, including one arising by operation of the rule, which includes the one- year stay under Rule 62(b). The amendment further provides that an attachment shall continue for 60 days beyond the expiration of any applicable stay or the issuance of an order for immediate execution under Rule 62(c), which has the same effect as the expiration of a stay.
Reporter’s Notes—1977 Amendment: Rule 62(a) and (d) are amended to make clear the power of the trial court to enter an order under Rule 80(j) modifying or enforcing a divorce judgment while an appeal is pending. Related changes are made in Rule 80(j) and Appellate Rule 8(a). The amendment to Rule 62(a) is intended simply to conform the reference to Rule 62(d) with the amendment to that subdivision. A sentence is added to Rule 62(d) providing expressly for the grant or denial of modification and enforcement orders pending appeal. Presently, the Supreme Court is remanding such actions on motion in that court for decision below by analogy to the practice under Rule 60(b) laid out in Kotz v. Kotz, 134 Vt. 36, 349 A.2d 882 (1975). The amendment also provides that the decision of the trial court on any motion under Rule 62(d), whether for an order under Rule 80(j) or for relief from an injunction, is to be certified “forthwith” to the Supreme Court. This change will obviate the kind of technical difficulty that arose in McDonough v. Snow, 131 Vt. 436, 447-48, 306 A.2d 119 (1973), in which a motion for reargument was based in part on a stipulation embodied in an unappealed contempt order entered below under Rule 62(d) pending appeal.
Reporter’s Notes: In view of the differences between Vermont and federal practice, this rule follows Maine Rule 62, which varies from the federal rule in several pertinent respects. Rule 62(a) is essentially in accord with prior Vermont practice. Stay of execution for 30 days or until the time for appeal as extended under Appellate Rule 4(a) by motion or for excusable neglect has expired is comparable to the provision of 12 V.S.A. § 2387 (now superseded) for a stay pending the time of filing notice of appeal. See also former Chancery Rule 37.3. The federal rule makes a stay automatic only during the 10-day period for filing post- judgment motions, although under Federal Rule 62(b) the court has discretion to order a stay when such a motion is made. Cf. 12 V.S.A. §§ 2363, 2364 (now superseded). The second sentence of Rule 62(a), also found in the federal rule, providing that a stay prior to or during the pendency of an appeal in an equity or domestic relations matter may be had only if ordered by the court, is contrary to the interpretation of 12 V.S.A. § 2387 (now superseded) in Walker v. Walker, 123 Vt. 430, 192 A.2d 460 (1963). Rule 62(b) is intended to give the absent defendant against whom a default judgment has been entered time to move for the setting aside of the default under Rule 60(b). It is a modification of the former procedure under 12 V.S.A. §§ 917-921 (now superseded). See Reporter’s Notes to Rule 60. Rule 62(c) permits immediate execution to issue in the court’s discretion in a proper case. While this procedure undercuts the automatic stay provision, it is of obvious value in the large number of routine collection and similar cases in which an appeal is highly unlikely. The provision for bond if execution is denied is consistent with prior practice. See In re Marineau, 118 Vt. 261, 108 A.2d 402 (1954). For further provisions as to bond, see Appellate Rule 8(b). Rule 62(d), identical to the first sentence of Federal Rule 62(c), incorporates the inherent equity power to preserve the status quo. It is comparable to 12 V.S.A. § 4602 (now superseded), insofar as it gives the trial court continuing jurisdiction for such purposes after the filing of a notice of appeal. Rule 62(e), providing for automatic stay without bond upon the taking of appeal except as provided in Rules 62(a), (c), and (d), is consistent with 12 V.S.A. § 2387 (now superseded). The rule is the converse of Federal Rule 62(d), which permits a stay on appeal only upon the giving of a supersedeas bond. Federal Rule 62(e), relieving the United States of the necessity of furnishing a supersedeas bond, is thus unnecessary. Rule 62(f), providing for the continuance of an attachment on appeal, makes clear for all forms of mesne process what was the effect of 12 V.S.A. §§ 2387, 2685 and 2687 (now superseded). Note that real estate is now held for only sixty days after judgment is final, in contrast to the five months allowed under the statute. On an appeal, the sixty days begins to run from the date of the Supreme Court’s mandate. See Appellate Rule 41(c). Rule 62(g), which is similar to Federal Rule 62(g), is the equivalent of 12 V.S.A. § 4604 (now superseded), giving the Supreme Court chancery powers for purposes of interlocutory relief in cases pending on appeal. Rule 62(h), like Federal Rule 62(h), is necessary for the functioning of Rule 54(b), permitting the rendition of judgment as to less than all the claims in suit. A typical example of its use would be stay of judgment on plaintiff’s claim when a counterclaim is still in suit.