Hemenway v. Hemenway

Decision Date02 November 1906
Citation65 A. 607,28 R.I. 85
PartiesHEMENWAY v. HEMENWAY.
CourtRhode Island Supreme Court

Appeal from Superior Court, Providence County.

Petition by Alice M. Hemenway against Herbert L. Hemenway for the production of documents under section 402 of the court and practice act. From a decree granting petitioner's prayer, defendant appeals. Dismissed.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Edwards & Angell, for petitioner. Comstock & Canning and Patrick P. Curran, for respondent.

JOHNSON, J. This is an appeal from a decree of the superior court, in the above-entitled cause, ordering the production of documents.

Alice M. Hemenway, in her petition for divorce pending in the superior court in the county of Providence, had prayed for the custody of her two minor children, and for an allowance out of the estate of the respondent Herbert L. Hemenway, for her separate maintenance, and for the education, maintenance, and support of her said children. On the 27th day of February, 1906, she filed in said court a petition for the production of documents, under section 402 (page 116) of the court and practice act of 1905, for the purpose of proving the amount to which she would be entitled for her separate maintenance and for the support of her said children. On the 21st day of July, 1906, a decree was entered in said superior court ordering such production of documents at the office of the firm of Horton & Hemenway, of which the respondent is a partner, at Boston, Mass., for examination by petitioner's counsel and an expert accountant, at certain specified times on and after the 1st day of August, 1906, to the last day of October, 1906. From this decree the respondent appealed.

The first question which presents itself for our consideration is whether an appeal will lie from such a decree. Section 304 (page 88) of the court and practice act of 1905 provides: "All petitions for the enforcement of mechanics' liens, petitions for divorce, and statutory proceedings so prescribed by statute, shall follow the course of equity so far as the same is applicable." By section 328 (page 95) of the court and practice act of 1905 an appeal to the Supreme Court is given to "any party aggrieved by a final decree of the superior court in any cause in equity or proceeding following the course of equity." The right of appeal is only given to the party aggrieved by a final decree.

The respondent argues that the decree in question is a final decree, and cites Arnold v. Pawtuxet Valley Water Company, 18 R. I, 189, 26 Atl. 55, 19 L. R. A. 602, where Mr. Justice Tillinghast, speaking of this statute (then Pub. St. 1882, c. 214, § 45), said (page 194 of 18 R. I., page 57 of 26 Atl. ): "The application provided for by said statute, which statute is merely declaratory of the common law upon the subject (Ely v. Mowry, 12 R. I. 570, 572), is evidently intended as a substitute for the more...

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4 cases
  • McAuslan v. McAuslan
    • United States
    • Rhode Island Supreme Court
    • July 6, 1912
    ...decree granting or continuing an injunction, appointing a receiver, or ordering a sale of real or personal property. Hemenway v. Hemenway, 28 R. I. 85, 65 Atl. 608. What constitutes a final decree is a question not easily determined in every case. The decisions of the courts are far from un......
  • Rosenfeld v. Rosenfeld
    • United States
    • Rhode Island Supreme Court
    • June 10, 1931
    ...in equity and in causes following the course of equity are regulated by statute. Gen. Laws 1923, c. 339, §§ 25, 34. In Hemenway v. Hemenway, 28 R. I. 85, 65 A. 608, the court said: "The right of appeal is only given to the party aggrieved by a final decree. * * * Not only is the right of ap......
  • Lederer v. Rosen
    • United States
    • Rhode Island Supreme Court
    • December 30, 1920
    ...Finishing Co. v. Greenville Finishing Co., 111 Atl. 721 (December 13, 1920). See, also, Hammond v. Hammond, 85 Atl. 937; Hemenway v. Hemenway, 28 R. I. 85, 65 Atl. 608. Tested by the rule laid down in these cases, the court is of the opinion that the decree appealed from is not a final decr......
  • In re Guild
    • United States
    • Rhode Island Supreme Court
    • November 7, 1906

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