Mellen v. Battey
| Decision Date | 08 February 1901 |
| Citation | 48 A. 141,22 R.I. 395 |
| Parties | MELLEN v. BATTEY. |
| Court | Rhode Island Supreme Court |
Action by Josephine Mellen against Charles H. Battey. Motion to dissolve an attachment denied, and defendant petitions for new trial. Petition dismissed.
Clark H. Johnson, for plaintiff.
Ezra K. Parker and Job S. Carpenter, for defendant.
This case is not properly before us. It is an action of assumpsit for breach of promise of marriage, and is now pending for trial in the common pleas division. A motion was made by the defendant in that division that the attachment of his real estate be dissolved on the ground that it was not liable to attachment in such an action. This motion was denied, and the defendant excepted thereto. He thereupon filed a bill of exceptions, which was allowed by the justice presiding; and the case was sent to this court on the defendant's petition for a new trial, based upon an alleged erroneous ruling in refusing to dissolve said attachment. This court cannot entertain a petition for new trial until the case has been tried or in some way disposed of by the common pleas division. In other words, a case cannot be brought here piecemeal. It must come as a whole, and only after final adjudication upon some question which for the time being, at any rate, is decisive of the rights of the parties, so far as the common pleas division is concerned. Taylor v. Loomis, 21 R. I. 277, 43 Atl. 180. Until some final decision is rendered by that division a party to the suit cannot be said to be "aggrieved by any direction, ruling or decision" therein, within the meaning of the statute relating to petitions for new trial (Gen. Laws R. I. c. 251, § 5), so as to give him a standing in this court. Were it otherwise, any interlocutory ruling in that division might bring the case here, and thus indefinitely prolong the litigation, to the great and unnecessary expense of the parties, and also to the great and unnecessary annoyance of the court. It would also raise many questions for decision which would finally be found to have been wholly immaterial. Under our well-settled practice, no such proceeding is or ever has been allowable. The contention of the defendant's counsel that this court has jurisdiction in the premises because two writs are really incorporated in one (that is, a writ of attachment and also a writ of summons), and that they are practically separate and independent proceedings, is wholly untenable. Every original writ of...
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Washington Trust Co. v. Bishop
...dual aspect of the writ is 'to warrant the officer in serving it in both methods, and not to make two writs out of one.' Mellen v. Battey, 22 R.I. 395, 48 A. 141, 142. Therefore the invalidity of the writ as to the attachment does not make it invalid as a writ of summons provided service is......
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Everett v. Cutler Mills
...real estate is properly made, the court has no authority to annul the attachment. Wood v. Watson, 20 R. I. 223, 37 A. 1030; Mellen v. Battey, 22 R. I. 395, 48 A. 141. If the defendant in a writ complains to the court from which the writ issued that the damages alleged are excessive, or that......
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Seiler Coal Co., Inc. v. Superior Court
...jurisdiction to release an attachment regularly and properly made on real estate. Wood v. Watson, 20 R. I. 223, 37 A. 1030; Mellen v. Battey, 22 R. I. 395, 48 A. 141. There is no suggestion as to irregularity in making the attachment. See Silva v. Superior Court (R. I.) 128 A. 212. Said sec......