Bowles v. Dannin

• Decision Date: 05 December 1938
• Docket Number: No. 699.,699.
• Citation: 2 A.2d 892
• Parties: BOWLES v. DANNIN, Judge of Probate.
• Court: Rhode Island Supreme Court

2 A.2d 892

BOWLES

v. DANNIN, Judge of Probate.

No. 699.

Supreme Court of Rhode Island.

Dec. 5, 1938.

Appeal from Superior Court, Newport County; Herbert L. Carpenter and Philip C. Joslin, Judges.

Proceeding for writ of mandamus by William A. Bowles against Robert M. Dannin, Judge of Probate, to require the respondent to issue a citation to William Greenough and others to deliver to the probate court the last will and testament of Lucy Wortham James, deceased, Judgment for petitioner, and the respondent appeals. On motions to dismiss appeal and to dismiss respondent's appeal from another order of the superior court appointing a temporary receiver.

Motions granted, judgment affirmed, and cause remanded for further proceedings.

Cornelius C. Moore and Charles H. Drummey, both of Newport, for petitioner.

Francis I. McCanna, of Providence, for respondent.

Sheffield & Harvey and William R. Harvey, all of Newport, and Tillinghast, Collins & Tanner, of Providence, amici curiae.

CONDON, Justice.

This is an appeal by Robert M. Dannin, judge of the probate court of the city of Newport, from a judgment of the superior court, on a petition for a writ of mandamus, commanding the appellant as judge of the probate court to issue forthwith a citation to William Greenough and others to deliver to the probate court the last will and testament of Lucy Wortham James, late of Newport, deceased.

The appellee, William A. Bowles, has argued that said appeal be dismissed on the ground that the appellant is not an aggrieved party within the meaning of general laws 1923, chapter 339, sec. 25, and therefore he has no right of appeal. The appellant contends that as a party respondent to the petition for mandamus he must necessarily be entitled to appeal. He contends further that since he, as probate judge of the city of Newport, is charged with the responsibility of faithfully conducting the duties of his office in strict conformity with the law, he is deeply concerned that his decision be sustained as being in accordance with law, and hence he is an aggrieved party within the meaning of sec. 25.

We cannot agree with either of these contentions of the appellant. They rest upon a mistaken belief that a judge has a legal interest in having his decisions upheld on appeal. We say this is a mistaken belief, because as a matter of law it is of no concern to him whether the appellate court agrees or disagrees with his decision. He has no duty either to himself or to the public to persuade the appellate court that his decision is correct. He has discharged his full duty when he has carefully and conscientiously considered the matter presented to him and has decided it according to his knowledge of the law. If a party is aggrieved by the decision made by the judge in the exercise of his judicial functions, such party, by taking proper proceedings, may have the decision reviewed by the appellate court.

In the instant case it is true that it is not a decree of the probate judge which he is seeking to have sustained on appeal. Rather he is appealing from a judgment of the superior court, commanding him to perform a certain act which that court has determined is incumbent upon him under the statute, G.L.1923, chap. 361, sec. 5. Prior to the bringing of the petition for mandamus in the superior court by the appellee, the appellant had decided, in another proceeding brought by the appellee for the same purpose in the probate court, that the appellee had no right to have the citation issued to William Greenough and others to deliver the will of Lucy Wortham James into court. And the appellant now desires to contend on this appeal that his decision in that proceeding was correct and that the superior court was in error in issuing its writ of mandamus commanding him to do that which he had previously decided he would not do. Essentially, therefore, the appellant's position is the same as if he were defending his decision on an appeal therefrom to the superior court. The fact that he is named as a party respondent in the mandamus petition does not give him a right to appeal. He must be a party aggrieved, either personally or in an official capacity as a representative of the public.

We have found no case in which a judge has been recognized as an appellant in a matter involving the exercise of his judicial functions. However, certain cases have been cited to us by the appellant upon which he relies in support of his right of appeal. Burke v. Gullege, 184 Ark. 366, 42 S.W.2d 397; Moore v. Muse, 47 Tex. 210; Kenney v. Prendergast, 153 App.Div. 325, 137 N.Y.S. 1097; State ex rel. Durner v. Huegin, 110 Wis. 189, 219, 223, 85 N.W. 1046, 62 L.R.A. 700; State ex rel. Kelly v. Justices of Moore County, 24 N.C. 430.

After careful consideration of these cases, we are clearly of the opinion that none of them are in point here. Insofar as they may seem to touch the instant case in some particulars, it is apparent that they either rest on the existence of a personal or representative interest in the appellant or on some construction of the term interest, which is too broad to come within the meaning which this court has given to the term "aggrieved party" under our statute. Tillinghast v. Brown University, 24 R.I. 179, 52 A. 891.

On the other hand, there are a number of cases where a judge, or a quasi-judicial tribunal in the performance of quasi-judicial functions has been expressly denied the right of appeal under circumstances more nearly similar to the instant case. Onion, Justice of the Peace, v. Cain, Tex. Civ.App., 64 S.W.2d 418; People ex rel. Breslin v. Lawrence, Justice, 107 N.Y. 607, 15 N.E. 187; McCloskey v. Renfro, 47 Ariz. 534, 57 P.2d 1140; Kirchoff v. Board of County Commissioners, 189 Minn. 226, 248 N.W. 817; Lansdowne Borough Board of Adjustment's Appeal, 313 Pa. 523, 170 A. 867.

In Onion, Justice of the Peace, v. Cain, supra, the Texas Court of Civil Appeals on its own motion held that an appeal by a justice of the peace did not lie from an order of the district court in mandamus commanding him to include certain costs in the bill of costs of a case brought before him by a constable of another precinct, which costs the appellant had held to be unlawful. "Obviously," the court said, "appellant can have no material interest in the judgment here appealed from since it cannot affect or prejudice his rights. * * * Appellant's only interest, therefore, as admitted in his brief, is in the abstract question of law sought to be determined by the appeal. Such interest alone does not give him the right of appeal."

The New York court of appeals, in People ex rel. Breslin v. Lawrence, Justice, supra, held that a justice of the supreme court had no right of appeal from an order of the general term reversing his decision in a habeas corpus proceeding remanding the relator to custody, for the reason that the reversal of his decision affected no substantial right of the justice or of any person of whom he was the personal representative. And in a later case, People ex rel. Burnham v. Jones, 110 N.Y. 509, 18 N.E. 432, the same court, upon its attention being called to the Breslin Case, distinguished it from the case then before it by observing [page 433]: "There Judge Lawrence simply decided that the relator was not illegally detained...