Cranston Loan Co. v. Byrne

• Decision Date: 11 March 1937
• Docket Number: No. 627.,627.
• Citation: 190 A. 464
• Parties: CRANSTON LOAN CO. v. BYRNE et al.
• Court: Rhode Island Supreme Court

190 A. 464

CRANSTON LOAN CO.

v. BYRNE et al.

No. 627.

Supreme Court of Rhode Island.

March 11, 1937.

Action by the Cranston Loan Company against Abby Byrne and John D. Enos and others. To review an order of the superior court granting plaintiff's motion that it be allowed to file an amended declaration, defendant Enos petitions for a writ of certiorari.

Writ of certiorari quashed, and record remitted.

Edward M. Sullivan and John J. Sullivan, both of Providence, for petitioner.

Frank W. Golemba and Philip Lieberman, both of Providence, for Cranston Loan Co.

BAKER, Justice.

This is a petition for a writ of certiorari, brought by John D. Enos, one of the defendants in the above-entitled case, to be directed to the superior court requiring it to certify the record in such case to this court, and praying us to order quashed a portion of such record wherein the superior court granted a motion of the plaintiff that it be allowed to file an amended declaration. The writ has been issued as requested, and the record and papers in the instant case have been duly certified to this court.

The plaintiff contends that the record herein shows that we should not grant the relief prayed for. This court frequently has had occasion to point out certain well-settled principles which regulate in this jurisdiction the granting of relief through the use of the writ of certiorari. In Cohen v. Superior Court, 39 R.I. 272, at page 275, 97 A. 794, 796, it is said: "The primary office of a writ of certiorari is to review the action of an inferior tribunal, taken without jurisdiction or in excess of the jurisdiction given to it; and such writ ordinarily does not lie to correct error in the exercise of jurisdiction." It has also been held that the issuance of the writ and the relief to be granted under it are discretionary. Brown v. Probate Court, 28 R.I. 370, 67 A. 527, 125 Am.St.Rep. 747; Parker v. Superior Court, 40 R.I. 214, 100 A. 305. The writ will not lie if there exists any other adequate remedy to review the questioned action of the inferior tribunal. Cohen v. Superior Court, supra; Chew v Superior Court, 43 R.I. 194, 110 A. 605; Bishop v. Superior Court, 50 R.I. 13, 144 A. 433. In Parker v. Superior Court, supra, 40 R.I. 214, at page 217, 100 A. 305, 306, the following language appears: "Ordinarily in certiorari this court will consider and correct final determinations merely, and those only in cases where no other remedy is expressly provided."

Occasionally, however, this court has permitted the use of the writ to correct determinations not strictly final, and to examine the action of an inferior tribunal to correct and prevent errors and abuses when no other remedy has been expressly provided. This procedure has been followed pursuant to the statute, General Laws 1923, c. 322, § 2, and in order to carry out fully and when necessary the final revisory and appellate jurisdiction placed in this court by the constitution. A comprehensive discussion of this subject appears in Hyde v. Superior Court, 28 R.I. 204, 66 A. 292, where, by reason of unusual facts and circumstances, the court issued its writ of certiorari and reviewed the entry of an interlocutory decree by the superior court.

Cases heretofore before this court, and dealing with the same general question as is raised in the case at bar, have been determined by the application of the general principles just referred to. In Rose v. Standard Oil Co. of New York, 56 R.I. 272, 185 A. 251, the record showed that the plaintiff moved for leave to file an amended declaration, after a substantial demurrer to a previous declaration had been sustained. The motion was denied by a justice of the superior court. This holding we reviewed by certiorari, there being no other remedy expressly available to the plaintiff, and the decision of the superior court being final in its effect, as the plaintiff could not proceed without the amendment.

Also, in Colitz v. Gilbert, 53 R.I. 319, 166 A. 685, this court reviewed by certiorari a ruling by the superior court permitting the plaintiff to amend his declaration prior to trial, and ordered that portion of the record quashed. The following facts appeared from the record in that case: The action was trespass on the case for negligence in the practice of dentistry. A demurrer had been sustained to the declaration and it had been agreed by the parties that the plaintiff could file an amended declaration by a day certain, but he took no steps to do so, and several years thereafter filed the motion to amend, which was granted by the superior court. In the meantime the defendant had died, and his executor had been made a party defendant. This court held in substance that, under these circumstances, the trial court had abused its discretion in...