Corbett v. Penhall, 1314.
| Decision Date | 14 May 1937 |
| Docket Number | No. 1314.,1314. |
| Citation | 192 A. 171 |
| Parties | CORBETT v. PENHALL et al. |
| Court | Rhode Island Supreme Court |
Suit in equity by William J. Corbett against Lucinda C. Penhall, executrix, and others, wherein a final decree was entered denying and dismissing complainant's bill, and the complainant appealed. On complainant's motion that cause be assigned for hearing on question of sufficiency of transcript and on respondent's motion to dismiss complainant's appeal.
Respondent's motion granted, complainant's appeal dismissed, decree appealed from affirmed, and cause remanded for further proceedings.
William J. Brown, of Providence, for complainant. Remington, Thomas & Levy and Arthur J. Levy, all of Providence, for respondent.
This is a bill in equity brought by the complainant in the superior court originally for the construction of the will of Josephine B. Corbett, and for the determination of the ownership of certain funds, as between the parties named in said bill. Finally, after some contention about the pleadings, an amended bill was filed limiting the cause to the determination of the ownership of a joint savings bank account as between Lu cinda C. Penhall, individually, and as ex ecutrix under the will of the aforesaid Josephine B. Corbett.
The cause was thereupon duly heard by a justice of the superior court, and said justice, after a hearing, denied the prayer of the complainant and dismissed his bill. After a reargument allowed by said justice, at the request of the complainant, a final decree was entered denying and dismissing the complainant's bill. From this decree, the complainant has appealed and has prosecuted his appeal to this court.
The complainant, in taking his appeal in the superior court, did not file with the clerk of that court a transcript of the testimony taken orally in the cause, as required by General Laws 1923, c. 339, § 26, but did file a transcript of a portion of such testimony, which he claims is all the testimony in the cause bearing upon the question of the validity of the alleged gift inter vivos made by Josephine B. Corbett to Lucinda C. Penhall. After a hearing on the suffi ciency of this transcript, the justice of the superior court returned said transcript to the clerk of said court within the time re quired by statute, but without taking any action thereon allowing or disallowing the same. Thereupon, in accordance with G.L. 1923, c. 339, § 27, the clerk of the superior court certified the cause and all the papers therein to this court.
The complainant filed in this court a motion that the cause be assigned for hearing on the question of the sufficiency of the transcript, in accordance with the provisions of said section 27. The respondents thereupon moved to dismiss the complainant's appeal on the ground that the complainant had failed to comply with the requirements of said section 26, necessary to give this court jurisdiction of his appeal, this failure being neglect to file a transcript of the testimony taken orally in the cause. The parties were heard on both motions together, as they raised the same question for our decision.
Sections 25, 26, and 27, c. 339, G.L. 1923, deal with the mode of taking an appeal in equity and with the powers and duties of the superior court in the perfecting of said appeal to this court, but it is section 26 which particularly prescribes the duty imposed upon the appellant to file a transcript of the testimony. That duty is clearly set forth in the very first sentence of that section, as follows: "The party taking an appeal shall within such time as the court shall fix, whether by original fixing of the time, or by extension thereof, or by a new fixing after any expiration thereof, file with the clerk a transcript of the testimony taken orally in the cause, if any, or so much thereof as may be agreed by the parties." This language is mandatory. The obligation there imposed upon the party taking the appeal could not be stated more plainly or more explicitly. Moreover, we have recently construed this section and have held that: "In a cause in equity an appeal from a final decree that is based in whole or in part on oral testimony cannot be prosecuted in this court without a transcript of the...
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Merchants Mut. Ins. Co. v. Newport Hospital
...paid as a consequence of the reversed decree. It is well established that the right of appeal is statutory in nature. Corbett v. Penhall, 58 R.I. 185, 192 A. 171; Standard Oil Co. of New York v. Board of Purification of Waters, 43 R.I. 336, 111 A. Long ago in Littlefield v. Peckham, 1 R.I. ......
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Plouffe v. Taft-peirce Mfg. Co., 1786.
...so much thereof as may be agreed to by the parties. Purcell v. John Hancock Mutual Life Ins. Co., 56 R.I. 93, 183 A. 884; Corbett v. Penhall, 58 R.I. 185, 192 A. 171; Davis v. Perrino, 60 R.I. 145, 197 A. 393; Austin v. Newport Trust Co., 65 R.I. 87, 13 A.2d 682. The statute upon which thes......
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Davis v. Perrino, 1351.
...of testimony in an appeal in equity, is set out fully in the above case, and it is unnecessary to repeat it here. See, also, Corbett v. Penhall, R.I., 192 A. 171. While in the Purcell Case, supra, the appeal was from the entry of a final decree, and while the statute in question refers to a......
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Austin v. Newport Trust Co., 1443.
...an appeal to this court in an equity cause. Purcell v. John Hancock Mutual Life Insurance Co., 56 R.I. 93, 183 A. 884; and Corbett v. Penhall, 58 R.I. 185, 192 A. 171. Applying this law to the instant cause, the respondents have not satisfied the mandatory conditions of the above chapter. W......