Frappier v. Frappier, s. 8200, 8201.
| Decision Date | 08 January 1940 |
| Docket Number | Nos. 8200, 8201.,s. 8200, 8201. |
| Citation | 10 A.2d 340 |
| Parties | FRAPPIER v. FRAPPIER. DAIGLE et al. v. SAME. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties, Alberic A. Archambault, Judge.
Petition by Leona Frappier and petition by Eugene Daigle and another for the adoption of Muriel Frappier, which were originally filed in the Probate Court. From the decision on the petition of Leona Frappier, Muriel Frappier, by her uncle and next friend, Eugene Daigle, appeals and from the decision on the petition of Eugene Daigle and another, the petitioners appeal. The appeals were heard together in the superior court and the petitions are in the Supreme Court on exceptions of petitioner, Leona Frappier, to the rulings of the superior court.
Exceptions overruled and case remitted.
Edward F. Dwyer and Morris E. Yaraus, both of Woonsocket, for appellants Eugene Daigle et al.
Felix A. Toupin, of Woonsocket, for appellee Leona Frappier.
These are petitions for the adoption of Muriel Frappier, aged five years, who is the sole surviving child of Joseph Frappier and Virginia Frappier, late of the city of Woonsocket, deceased. The petitions are here on the exceptions of petitioner Leona Frappier to the rulings of the superior court. They were originally filed in the probate court of the city of Woonsocket and were brought to the superior court on the appeals of Muriel Frappier by her uncle and next friend, Eugene Daigle, and of the said Eugene Daigle and Violetta Daigle.
Leona Frappier is a sister of Joseph Frappier. Eugene Daigle is a brother of Virginia Frappier. He and his wife, Violetta Daigle, are the godparents of Muriel Frappier. Since the decease of her father and mother, and for a brief period prior thereto, Muriel has lived with her aunt Leona Frappier.
Leona Frappier filed her petition for the adoption of Muriel on June 7, 1938, first having obtained the written consent thereto of Muriel's father, Joseph Frappier. At that time he was confined in the state sanatorium at Wallum Lake, where he died on July 27, 1938. The consent of the mother, Virginia Frappier, was not requested because of a mental affliction which she was then suffering from and by reason of which, on June 9, 1938, she was adjudicated insane and committed to the state hospital for mental diseases, where she died on July 28, 1938.
In accordance with the provisions of General Laws 1938, chapter 420, § 5, the state department of public welfare was duly notified of the filing of this petition. Under that statute it is the duty of that department, upon receiving such notice, "to verify the allegations of the petition, and to make appropriate inquiry to determine whether the proposed foster home is a suitable home for the child."
However, since the mother of Muriel had not consented to the petition and was too ill to be interviewed, the department of public welfare suggested that the petition be continued until such time as the mother could be questioned concerning it. This was accordingly done, but the mother never recovered sufficiently to be interviewed. After the death of the mother, the petition was further continued from time to time until December 13, 1938, on which date it was heard and granted by the probate court. In the meantime, however, on September 2, 1938, the department of public welfare disapproved the petition and recommended that it be denied. This adverse recommendation was before the probate court of the city of Woonsocket when it heard and granted the petition.
On September 8, 1938, while the petition of Leona Frappier was still pending, Eugene Daigle and Violetta Daigle filed their petition for the adoption of Muriel. Notice of the filing of their petition was also duly given to the state department of public welfare and that department, by letter of September 30, 1938, advised the probate court that it had investigated these petitioners and had inspected their home, and that it recommended the granting of their petition. This report was filed with the probate court on October 3, 1938 and was, therefore, before that court when it considered the Frappier petition on December 13, 1938.
The record of the probate court shows that on the latter date these petitioners filed a motion in writing "that the court proceed with the hearing of their petition", and that this motion was then and there denied, apparently for the reason that the court had already granted the petition of Leona Frappier. The Daigles appear to have deemed this decision of their motion tantamount to a decree or order denying their petition, and the probate court apparently did likewise, since the petition is indorsed,— Accordingly, these petitioners filed a claim of appeal from this decision and they duly filed their reasons of appeal in the superior court.
Muriel Frappier, by her uncle and next friend, Eugene Daigle, filed a claim of appeal from the decree of the probate court, granting the petition of Leona Frappier, and duly prosecuted said appeal to the superior court. These appeals were heard together in the superior court without objection on the part of Leona Frappier. Inasmuch as no objection was made to the appeal from the decision of the probate court on the Daigles' motion to proceed with the hearing of their petition and inasmuch as the superior court undoubtedly, by virtue of the appeal of Muriel Frappier from the decree granting Leona Frappier's petition, had jurisdiction of the subject-matter before it,: namely, the adoption of Muriel Frappier, we shall consider that it was proper for it to entertain the appeal of the Daigles together with Muriel's appeal. In the superior court Leona Frappier was referred to as the appellee and she is sometimes hereinafter referred to as such.
At the trial in the superior court, the issue of adoption was left to the jury. They found that the petition of the Daigles should be granted and that the petition of Leona Frappier should be denied. The effect of the verdicts of the jury was a reversal of the action of the probate court in each case. Leona Frappier then moved, in the superior court, for a new trial on the grounds that the verdicts were against the law, against the evidence, against the law and the evidence and the weight thereof. The trial justice denied these motions and Leona Frappier duly excepted thereto. This exception is numbered 2 in her bills of exceptions and is the only exception in each bill that we may properly consider.
The only other exception is stated in each bill as follows: Manifestly this statement does not fulfill the requirements of G.L.1938, chap. 542, § 5, and the decisions of this court construing that section. It is provided by § 5 that a person or party who has taken exceptions and who has filed notice of his intention to prosecute a bill of exceptions to the supreme court, "shall file in the office of the clerk of the superior court his bill of exceptions, in which he shall state separately and clearly the exceptions relied upon." (italics ours)
This statute prescribing procedure in prosecuting a bill of exceptions to this court has been held to be jurisdictional. Labonte v. Alvernaz, 47 R.I. 226, 132 A. 732; ...
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