Bannon v. Bannon, 5711.
| Decision Date | 18 December 1922 |
| Docket Number | No. 5711.,5711. |
| Citation | 119 A. 56 |
| Parties | BANNON et al. v. BANNON. |
| Court | Rhode Island Supreme Court |
Decree of probate court in favor of Annie M. B. Bannon was confirmed by the superior court, and John F. Bannon and others prosecute a bill of exceptions. Motion to dismiss bill of exceptions denied.
Nathan W. Littlefield and Charles W. Littlefield, both of Providence, for appellants.
Cooney & Cooney, of Providence, for appellee.
The above-entitled cause is an appeal from a decree of the probate court of Central Falls, setting off to the appellee, in addition to her dower, certain real estate of which her husband, Peter Bannon, late of Central Falls, died seized and possessed. The said Peter Bannon died testate. His will was duly probated in the probate court of Central Falls, and the appellant, John F. Bannon, was appointed and has qualified as executor thereof.
The appeal was beard before a justice of the superior court sitting without a jury. No testimony was introduced, but counsel for the appellee stated to the court the needs of the widow and the amount and condition of the testator's estate. Counsel for the appellants did not question the truth of these statements, and admitted that the decree of the probate court should be confirmed if an allowance to a widow whose husband died testate was warranted under the provision of section 9, chapter 313, General Laws 1909. After hearing, said justice confirmed the decree of the probate court. The appellants duly excepted to this decision, and filed their bill of exceptions, which was allowed by said justice. The cause is now before us upon the motion of the appellee that the bill of exceptions be dismissed on the ground that the appellants are without standing here because they did not file with their bill of exceptions a transcript of the evidence and have said transcript allowed. It might be urged that, as no evidence was presented before the superior court, no transcript of evidence could be obtained. If, however, we should treat the statement made by counsel for the appellee at the hearing in the superior court and assented to by counsel for the appellants as the evidential facts in the case upon which the superior court acted; and it should also appear that a written statement of such facts allowed by the judge could have been filed here, nevertheless the failure of these appellants to do so would not warrant us in dismissing their exception at this time.
In their bill the appellants intend the following as a statement of their exception:
"Said appellants aver that the decision of said court rendered for the appellee as appears in the papers in said cause was erroneous, and as grounds therefor say that the decision is contrary to law, and that appellants aver that the decision of said justice was wrong and erroneous and ought to be reversed, and the exception of these appellants thereto should be sustained and judgment rendered for the appellants."
This is open to the criticism that it is an averment of error in the decision of the superior court, rather than the statement of an exception thereto, and in that respect does not comply with the practice in drawing bills of exceptions adopted by this court in Blake v. Atlantic National Bank, 33 R. I. 109, SO Atl. 181, and in Dunn Worsted Mills v. Allendale Worsted Mills, 33 R. I. 115, 80 Atl. 591. In the...
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Sormanti v. Deacutis
...deprive them of the right to prosecute the bills if the errors of law complained of sufficiently appear of record. See Bannon v. Bannon, 44 R. I. 468, 119 A. 56. As a matter of fact, at the hearing on the present motions to dismiss, defendants disclaimed the need of a transcript properly to......
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State v. Amaral
...33 R. I. 115; Beaule v. Acme Finishing Co., 89 A. 73, 36 R. I. 74 at 76; Nichols v. Mason & Co., 115 A. 113, 44 R. I. 43; Bannon v. Bannon, 119 A. 56, 44 R. I. 468; Fainardi v. Pausata, 123 A. 689, 45 R. I. The respondent's bill of exceptions, as presented to the justice for allowance, offe......
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Dubee v. Feinstein
...from it. In the instant case we are of the opinion that the defendant has in effect complied with these requirements. Bannon v. Bannon, 44 R.I. 468, 119 A. 56. He has gone further than necessary and has set out the grounds of his exception as exceptions. But it is clear that his exception i......
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Kominsky v. Durand, 8199.
...not contained in the papers, such as the construction of a statute, a transcript of the evidence is entirely unnecessary. Bannon v. Bannon, 44 R.I. 468, 119 A. 56. For the reasons above stated, plaintiff s exception to the ruling of the justice of the superior court on defendant's demurrer ......