Burger v. Brindle, 739.

• Decision Date: 12 January 1940
• Docket Number: No. 739.,739.
• Citation: 10 A.2d 353
• Parties: BURGER v. BRINDLE.
• Court: Rhode Island Supreme Court

10 A.2d 353

BURGER

v. BRINDLE.

No. 739.

Supreme Court of Rhode Island.

Jan. 12, 1940.

Proceeding on petition of Harry Brindle for a writ of certiorari directed to the superior court, seeking to quash an amendment to a writ allowed in an action by Johanna Burger against Harry Brindle, executor.

Prayer of petition denied, writ quashed, and cause remanded with directions.

Charles R. Easton and Ralph Rotondo, both of Providence, for plaintiff.

Forrest B. Morgan, of Providence, for defendant, petitioner.

FLYNN, Chief Justice.

This is a petition for a writ of certiorari directed to the superior court. It seeks to quash as illegal the record and action of that court in permitting the plaintiff in a pending law action to amend her writ by striking out the signature of the clerk appearing thereon and writing in place thereof the name of that clerk's successor in office. No question is raised as to the propriety of certiorari as a remedy under the existing circumstances.

It appears from the petition and the record, which has been produced in response to the writ, that the defendant below, who is the petitioner here, was the duly appointed and qualified executor of the will of Herman F. Kaiser, deceased; that the plaintiff below, Johanna Burger, hereinafter called the plaintiff, commenced an action at law within the statutory period of limitations to recover upon a claim filed against the above estate which had been disallowed; that the writ, dated February 28, 1939, bore the signature of "Matthew M. McCormick, Clerk", whereas he had ceased to be such clerk on February 2, 1939; that the defendant filed his plea in abatement, setting out the fact that Harry M. Paine was the clerk of that court on February 28 and alleging that the writ without his signature was a nullity; that, without any replication by the plaintiff and before any determination upon the plea in abatement, the court granted the plaintiff's motion to amend her writ "by allowance of the proper name of the clerk of said court in place of that of the former clerk to be written in by the present clerk" that the defendant under the circumstances was left without any adequate remedy to have this alleged error in the exercise of jurisdiction reviewed, except by certiorari.

The petitioner does not question the presence or genuineness of the seal of the court upon, the writ; nor that the clerk, who signed the writ authenticating that seal, was actually the clerk of that court prior to February 2, 1939 and evidently when the writ was delivered by the clerk to the plaintiff's attorney. Nor is it denied that the writ, without any change, would have satisfied all requirements of law if another clerk had not been appointed before February 28 to take the place of the one who signed the writ.

The petitioner's sole complaint is that Harry M. Paine, on February 28, 1939, the date of the writ, was in fact the clerk of the court; that the statute required his signature upon the writ; that the absence of such signature rendered the writ a nullity from the beginning; and that therefore the court was without jurisdiction to amend this substantial defect. The controlling question, therefore, is whether the defect in the writ rendered it void ab initio and not amendable under our statutes, or whether such defect rendered it merely voidable, and amendable in the discretion of the court under the provisions of General Laws 1938, chap. 519, §§ 1 and 2.

The statutory requirements of a writ are stated in § 1, chap. 514, G.L. 1938, as follows: "Writs issuing from any court shall issue in the name of the State of Rhode Island and Providence Plantations, shall be under the seal of the court from which they issue, and shall be signed by the clerk or by one of the justices thereof." The verb "to issue" may have different meanings depending on its context; but in this section of the statute, the ordinary and natural meaning seems to be "to be given out officially; to be published * * * to deliver, or give out, as for use; to send out officially; to deliver by authority; to publish or utter; to emit; as, to issue an order, a writ." See Webster's New International Dictionary (2d Ed.) p. 1319. If so construed, the provisions of the statute would seem to have been satisfied in this...