McLaughlin v. McLaughlin

• Decision Date: 06 July 1922
• Docket Number: No. 378.,378.
• Citation: 117 A. 649
• Parties: Mclaughlin v. Mclaughlin.
• Court: Rhode Island Supreme Court

117 A. 649

Mclaughlin

v. Mclaughlin.

No. 378.

Supreme Court of Rhode Island.

July 6, 1922.

Suit by Belle Stanton McLaughlin against James McLaughlin. Petition by plaintiff for writ of prohibition against granting a final decree of divorce. Writ granted.

James G. Connolly, of Pawtucket, for petitioner.

Lawrence F. Nolan, of Pawtucket, and Fitzgerald & Higgins, John J. Fitzgerald, aud William H. Camfield, all of Providence, for respondent.

SWEETLAND, C. J. This is a petition for a writ of prohibition in the above-entitled cause, which cause is a petition for divorce now pending in the superior court. The petitioner seeks to stay that court from entering a final decree dissolving the bond of marriage between the parties.

The petition as amended prayed for an absolute divorce. It was tried before a justice of the superior court, and on September 27, 1921, said justice rendered his decision for the petitioner, on the grounds that the respondent was guilty of extreme cruelty to the petitioner, and of neglect and refusal, being of sufficient ability, to furnish necessaries for the subsistence of the petitioner. In his decision said justice fixed the amount of alimony to be paid to the petitioner, and also the amount of an allowance to her for her support pendente lite. On March 22, 1922, before the expiration of six months after said decision, during which time, under our statute, a "final and operative decree" in the cause could not be entered, the petitioner filed notice in the clerk's office of the superior court of her withdrawal and discontinuance of the petition. That notice came before said justice, and he refused to permit the petitioner to discontinue. His refusal has not as yet been brought before us for review, and a consideration of its propriety is not involved in this proceeding. On March 28, 1922, after the expiration of six months from the entry of said decision, the respondent moved that a final decree be entered divorcing the parties from the bond of marriage. This motion was opposed by. the petitioner. After hearing, said justice announced that he should grant the motion and enter final decree, but that he would not do so until the petitioner should have had an opportunity to question, before this court, the propriety of his intended action. The petitioner thereupon commenced this proceeding, asking for a writ of prohibition against said justice.

The ordinary office of a writ of prohibition is to restrain an inferior tribunal from acting without jurisdiction or in excess of its jurisdiction. The position of this court has been that it would not grant the writ when it appeared that a petitioner had an adequate remedy by review, if such tribunal should so act. In this case the superior court has jurisdiction of the subject-matter and of the parties. The intended action of the superior court may be erroneous, but it cannot properly be said that the court is about to act without jurisdiction or in excess of its jurisdiction.

If, however, it would be error to enter a final decree, and the superior court should take that action, then, because of the peculiar nature of divorce proceedings, the petitioner might be left without adequate relief by the ordinary methods for review. In Fidler v. Fidler, 28 R. I. 102, 65 Atl. 609, 13 Ann. Cas. 835, this court has held that an appeal does not lie from a final decree for divorce; and in Thrift v. Thrift, 30 R. I. 357, 76 Atl. 105, it was held that in divorce an exception will not lie after the entry of final decree. If said justice should enter the final decree, as he has announced, the petitioner might bring such action before us upon certiorari, but after the entry of a final decree for divorce from the bond of marriage either party may marry again, and there would be the possibility that, before this petitioner could commence proceedings in certiorari and serve notice of a stay, the respondent might contract a new marriage and the rights of a third party arise, affecting the relief which would be given to this petitioner, even though the action of the superior court should be regarded as erroneous. Fidler v. Fidler, supra.

Under the provisions of section 2, chapter 272, General Laws 1909, carrying out the provisions of the Constitution, this court, among other things, has general supervision of all courts of inferior jurisdiction, to prevent and correct errors and abuses therein, when no other remedy is expressly provided, and may issue extraordinary and prerogative writs, including that of prohibition, necessary for the furtherance of justice and the due administration of the law. Under its authority to frame and issue such writs and processes as may be necessary or proper to carry into full effect all the powers and jurisdiction which shall be conferred upon it (section 6, chapter 274, General Laws 1909), this court has held that it is "not confined to any narrow, technical definition of the office of the extraordinary writs, but may use those writs in their accepted form when adopted to the purpose sought" Hyde v. Superior Court, 28 R. I. 204, 66 Atl. 292. Ordinarily this court will restrict the use of those writs to their generally recognized offices; but, in any situation, when no other remedy is provided, it...