Kaiser v. Burger, 1472.
| Citation | 10 A.2d 355 |
| Decision Date | 12 January 1940 |
| Docket Number | No. 1472.,1472. |
| Parties | KAISER et al. v. BURGER. |
| Court | United States State Supreme Court of Rhode Island |
Appeal from Superior Court, Providence and Bristol Counties; Patrick P. Curran, Judge.
Proceeding by Carl H. Kaiser and others against Johanna Burger for the appointment of a receiver of the rents and profits of certain real estate. From a decree for petitioners, respondent appealed. On petitioners' motion to dismiss the appeal.
Motion denied.
Forrest B. Morgan, of Providence, for complainants.
Charles R. Easton, and Ralph Rotondo, both of Providence, for respondent.
This is a proceeding under General Laws 1938, chapter 596, for the appointment of a receiver of the rents and profits of certain real estate which was owned by the petitioners and the respondent as tenants in common. In the superior court, after a hearing on the merits, a decree was entered granting all the relief prayed for in the petition and appointing a receiver for the rents and profits of the property in question. Within thirty days thereafter the respondent filed her notice and reasons of appeal from that decree and the cause is before us upon the motion of the petitioners to dismiss the respondent's appeal.
The petitioners contend that the proceeding under the statute is one of law and that no method of review is provided in the statute; that such a review, if possible, cannot be by appeal unless the cause may be considered as one following the course of equity; and that if this be so, the decree is not a final decree but merely interlocutory. The respondent, on the other hand, contends that the cause is one which plainly follows the course of equity and, therefore, is reviewable by appeal; and further that the decree is final and not interlocutory and therefore is appealable within thirty days from its entry, in accordance with the provisions of G.L. 1938, chap. 541, § 1.
We are of the opinion that the proceeding, although a petition under the statute, may be classified at least as one following the course of equity. The statute provides a specific relief that was not available by proceeding at common law. Its object or purpose, namely, the appointment of a receiver of rents and profits, is a form of relief usually associated with a proceeding in equity. The medium of granting or denying that relief under this statute is by entry of a decree, and such practice conforms more to ordinary proceedings in equity than to those in law.
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Wax v. Monks
...347; Lendzion v. Senstock, 300 Mich. 346, 1 N.W.2d 567; Forest City Investment Co. v. Haas, 110 Ohio St. 188, 143 N.E. 549; Kaiser v. Burger, 64 R.I. 83, 10 A.2d 355; Virginia Passenger & Power Co. v. Fisher, 104 Va. 121, 51 S.E. The bill in the present case was not a bill to reach and appl......
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Montaquila v. Montaquila, 2518
...proceeding and nothing remains but to execute the decree, it will be held to have elements of finality. See Kaiser v. Burger, 64 R.I. 83, at page 85, 10 A.2d 355, at page 356. The motion of the cotrustee Montaquila to dismiss Coen's appeal from the decree of February 7, 1956 is therefore We......
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