Manekofsky v. Manekofsky, 7854.

• Decision Date: 01 March 1938
• Docket Number: No. 7854.,7854.
• Citation: 197 A. 450
• Parties: MANEKOFSKY v. MANEKOFSKY.
• Court: Rhode Island Supreme Court

197 A. 450

MANEKOFSKY

v. MANEKOFSKY.

No. 7854.

Supreme Court of Rhode Island.

March 1, 1938.

Suit for divorce by Samuel Manekofsky against Martha Manekofsky.Decree for the plaintiff, and, from a denial of a motion to set aside and vacate decree, and reinstate case for trial on its merits, defendant brings exceptions.On motion to dismissbill of exceptions.

Motion denied without prejudice.

Benjamin M. McLyman, of Providence, for petitioner.Harold S. Moskol, of Providence, for respondent.

MOSS, Justice.

This case is now before us on the petitioner's motion to dismissthe respondent's bill of exceptions, on the ground that the decision by the superior court, which the respondent seeks to have reviewed by this court, is not reviewable on a bill of exceptions, but only on an appeal.

The case is a proceeding for a divorce, which was heard on its merits in the superior court on September 20, 1935, the result being a decision that the petitioner was entitled to a divorce.On this a final decree of divorce was entered on April 25, 1936.On August 29, 1936, the respondent filed a motion that the final decree and the decision be set aside and vacated, and that the case be reinstated for trial on its merits.When this motion came on for hearing in the superior court, it was denied and the respondent took an exception to the denial.The bill of exceptions now before us states only that exception.

The petitioner's sole contention in support of his motion to dismiss is that, under decisions by this court, the only correct procedure for bringing such a ruling before this court for review is by an appeal.He cites in support of this contention Sherman v. Sherman, R.I., 178 A. 462.In that case, the bill of exceptions before us was brought by the petitioner in a divorce case, to have us review a decision by the superior court denying his motion for the allowance of additional counsel fees after a decision denying his petition for a divorce.We sustained a motion by the respondent to dismiss that bill of exceptions on the ground that such a decision was only reviewable on appeal.

But in that case the decision by the superior court was only on a supplementary proceeding, not affecting the merits of the case.We expressed no opinion as to the proper procedure for a review of a decision on a motion directly attacking the decision of the case on its merits, or the final decree of divorce, but only as to the proper procedure for reviewing orders and decrees relating to alimony and to allowances and counsel fees.

In Johnston v. Johnston, 37 R.I. 362, 92 A. 983, after a careful review of the previous opinions of this court bearing on the question now before us, this court held that a bill of exceptions is the proper procedure for obtaining a review by this court of a decision by the superior court denying a petition to vacate, for fraud practiced on the court, a final decree in a divorce case.It stated that, though that petition had been filed, numbered and docketed as if it were a part of the divorce case, it was in the nature of a new action brought in the same court, not to have the divorce case reopened and retried, but to vacate the decree by having the whole procedure annulled for want of jurisdiction.

It is true that in that case, as stated in the opinion, the petition to vacate the decree charged fraud practiced on the court and contained allegations of fact to support the charge, while in the instant case there was a motion to vacate the decree and decision and to reinstate the case for trial, and that motion set forth no reason why they should be vacated, and contained no allegations of fact.But no objection was made by the petitioner in the case to the legal sufficiency of the motion itself, and, when it came on for hearing before a justice of the superior court, the respondent's counsel stated that it was based on fraud, practiced by the petitioner on the court and the respondent, and he offered to produce evidence of such fraud, which the justice held to be insufficient and denied the motion.Therefore it seems to us that the differences between the petition in the earlier case and the motion in the instant case bear rather on the question whether the motion was properly denied than on the question whether the denial is reviewable on a bill of exceptions.

In Berger v. Berger, 44 R.I. 295, 117 A. 361, where the facts were much like those in the instant case except that a petition was involved, this court held: "The petition to vacate a final decree in divorce is an independent petition, and in effect is a new and original proceeding.The objection to the decision of the superior court thereon is properly raised in this court by a bill of exceptions."Johnston v. Johnston, supra, was cited and relied upon.

The petitioner in the instant case relies principally on the opinion...