Calcagni v. Cirino, 1450.
| Decision Date | 19 July 1939 |
| Docket Number | No. 1450.,1450. |
| Citation | 7 A.2d 691 |
| Parties | CALCAGNI et al. v. CIRINO et al. |
| Court | Rhode Island Supreme Court |
Appeal from Superior Court, Providence and Bristol Counties; Herbert L. Carpenter, Judge.
Bill of review by Levia Calcagni and others against Antonio Cirino and others to obtain a reversal of a final decree entered in Calcagni against Cirino, —— R.I. ——, 2 A.2d 889, on ground of newly discovered evidence. From a decree sustaining the respondents' demurrer, the complainants appeal.
Appeal denied, decree sustained, and cause remanded for further proceedings.
J. Raymond Dubee, of Providence, for appellants.
Benjamin Cianciarulo, Angelo Cianciarulo, and Edward A. Capomacchio, all of Providence, for respondents.
This is a bill of review brought by the complainants to obtain a reversal of a final decree entered in Calcagni v. Cirino, R.I., 2 A.2d 889. The bill is based solely on the ground of newly-discovered evidence which allegedly was not available to complainants, in the exercise of due diligence, until after the hearing of the original cause on its merits.
Leave to file the bill of review was obtained first from a justice of the superior court by the complainants, ex parte, upon their separate petition, which included affidavits that set forth the evidence upon which they ultimately rely. The respondents received no notice of the filing or allowance of that petition for leave to file the bill of review, and later they filed a substantial demurrer to the bill.
The demurrer stated first, that the bill alleged no grounds for the interposition of a court of equity; and second, that the original bill in equity, described in the bill of review, had gone to final adjudication; and "for divers other good causes of demurrer appearing in the said Bill of Review" prayed the judgment of the court that the bill be dismissed. The matter was heard by another justice of the superior court upon the respondents' demurrer and a decree was entered, overruling it on the first ground but sustaining it on the second ground thereof. The cause is before us upon the complainants' appeal from that decree.
The original bill in equity was brought by these complainants to have the respondent Antonio Cirino declared to be holder of one-half of certain real estate as trustee for the complainants, on the ground that his father, Liberato Cirino, had expressly agreed with Annie Cirino Calcagni and respondent Antonio Cirino to make a will devising that real estate to said Annie Cirino Calcagni and Antonio Cirino, share and share alike, if they first released their interests in certain other property, which was done. Annie Cirino Calcagni, daughter of Liberato Cirino, was the mother of complainant children and wife of complainant Peter Calcagni. No representative of the estate of Liberato Cirino, the father, was ever made a party to the bill, notwithstanding that the fundamental agreement allegedly was induced and made by the father.
The original cause was tried before a justice of the superior court, who found that complainants' evidence failed to establish the making of any agreement by Liberato Cirino, the father, with Annie Cirino Calcagni and Antonio Cirino, as complainants alleged; and he therefore denied the relief prayed for as to the property at 108 Vinton street, the improved parcel then in question.
After the entry of the final decree, certain affidavits of witnesses containing alleged newly-discovered evidence were presented as a part of the complainants' petition to this court "for a new trial" under General Laws 1923, chapter 347, sec. 3. They were then considered by us in connection with contentions by the respondent Antonio Cirino that, even if complainants were properly before the court under chap. 347, sec. 3, the alleged newly-discovered evidence was available to the complainants at the trial if they had exercised reasonable diligence, and that such evidence was insufficient in fact to bind the respondent Antonio Cirino to any alleged agreement or to merit any retrial of the cause. In that case we said that we agreed with the contentions of said respondent, although...
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Calcagni v. Cirino, 1514.
...superior court; and a demurrer thereto was sustained by that court in a decree, which was affirmed in this court on appeal. Calcagni v. Cirino, R.I., 7 A.2d 691. Thereafter, by a decree of the superior court, the cause was referred to a member of the bar of this state, as a special master-i......