Murphy v. Bocchio, s. 73-259-M

• Decision Date: 27 May 1975
• Docket Number: Nos. 73-259-M,s. 73-259-M
• Citation: 338 A.2d 519,114 R.I. 679
• Parties: Margaret MURPHY et al. v. Fred R. BOCCHIO et al. P., 73-279-M.P.
• Court: Rhode Island Supreme Court

Page 519

338 A.2d 519

114 R.I. 679

Margaret MURPHY et al. v. Fred R. BOCCHIO et al.

Nos. 73-259-M.P., 73-279-M.P.

Supreme Court of Rhode Island.

May 27, 1975.

[114 R.I. 686] Anthony S. DelGiudice, Providence, for plaintiffs.

Keenan, Rice, Dolan, Reardon & Kiernan, Roderick A. J. Cavanagh, Providence, for defendant Fred R. Bocchio.

Lynch, Walsh & Cobleigh, Michael A. Higgins, Warwick, for defendant Everett M. Chase.

OPINION

KELLEHER, Justice.

At the request of the defendants in each of the above cases we have issued writs of certiorari to review the vacating of certain judgments that were entered against the plaintiffs in the Superior Court during April 1972. We have consolidated the writs for hearing purposes.

The record indicates that the litigants were involved in a series of rear end motor vehicle collisions that occurred in Warwick on May 4, 1969. The plaintiffs are Margaret Murphy, her husband Cornelius, and her sister, Anna Broadbent. The trio were riding in an automobile which was owned by the husband but which was being driven by his spouse. The Murphy vehicle was struck in the rear by an automobile that was owned and operated by defendant Fred R. Bocchio, seconds later the other defendant Everett M. Chase struck the Bocchio vehicle in the rear.

Almost 2 years after the incident, the Murphys and Broadbent instituted suit. Thereafter, each defendant filed an answer and a request for replies to detailed interrogatories which were submitted to each plaintiff. The requests for replies to the interrogatories fell on deaf ears, so Chase and Bocchio filed several motions to compel plaintiffs to supply the necessary information. On September 23, 1971, an order was entered directing plaintiffs to file answers to the interrogatories posed by Bocchio within the next 30 days. Nothing happened, so on October 29, 1971, Bocchio filed a motion to dismiss plaintiffs' suit because of their failure to file the replies. On November 11, 1971, an order was entered dismissing plaintiffs' suit unless they furnished the answers to Bocchio within the next 30 days. No responses were forthcoming, and Bocchio filed a series of motions seeking an entry of judgment because of plaintiffs' failure to comply with the November 11, 1971 order. On March 15, 1972, another order was entered calling for an entry of judgment on April 16, 1972, in favor of Bocchio unless plaintiffs complied with the November 11, 1971 order on or before April 15, 1972. On May 1, 1972, a judgment was entered in favor of Bocchio.

During the time this suit was pending in the Superior Court, two separate orders were entered calling for the entry of judgment for Chase unless the requisite information was supplied. One order called for plaintiffs to file their replies within 30 days from November 10, 1971. The second conditional order was entered on March 29, 1972, and ordered judgment to enter on April 30, 1972.

These various orders evoked no immediate response from plaintiffs. However, on March 26, 1973, they filed a motion to vacate the 'April 16 and April 30, 1972' judgments. The plaintiffs relied on the provisions of Super.R.Civ.P. 60(b) and asserted that the judgments should be vacated 'because of mistake, inadvertence or excusable neglect.' This motion came before a justice of the Superior Court, and on April 9, 1973, an order was entered denying the motion without prejudice.

Some 3 weeks later, on April 30, 1973, plaintiffs filed a second motion to vacate the same judgments. The second motion to vacate was subsequently heard by another justice of the Superior Court who paid no heed to allegations set forth both in the motion and in an affidavit executed by plaintiffs' attorney. Rather, the trial justice, in granting the motion, remarked that he took such a course of action because '* * * it is a grave responsibility to throw a person out of court before he has a chance to have a hearing on the merits.' An order granting plaintiffs' motion was entered on June 5, 1973. It directed plaintiffs to file their replies to the unanswered interrogatories within a week. The husband's and wife's replies were filed. To this date, no reply has ever been filed for Broadbent.

Our issuance of certiorari was limited to the question of whether the trial justice on May 10, 1974 had the jurisdiction, because of the time period involved, the vacate the orders previously entered in the cause and give plaintiffs still another opportunity to supply the information sought by defendants. We will not pass upon the question of whether plaintiffs have presented evidence of 'mistake,' 'inadvertence,' or 'excusable neglect.'

A close examination of the first portion of Super.R.Civ.P. 60(b) discloses that it is applicable only in instances where relief is sought from a final judgment, order, or proceeding. Thus a trial justice still retains the inherent power to modify any interlocutory judgment or order prior to final judgment. See 11 Wright & Miller, Federal Practice & Procedure § 2852 at 145 (1973); 7 Moore, Federal Practice 60.20 at 242 (2d ed. 1974).

In seeking to determine just what constitutes a final judgment or order, we shall first allude to Coen v. Corr, 90 R.I. 185, 156 A.2d 406 (1959), where this court defined a 'final decree' as one which terminates the litigation of the parties on the merits of the case so that if a decree is affirmed on appeal, there is nothing to do but execute it. A decree, we stated, cannot be described as being final when a person in whose favor the decree runs must return to court for further assistance.

The Supreme Court in Jung v. K. & D. Mining Co., 356 U.S. 335, 78 S.Ct. 764, 2 L.Ed.2d 806 (1958), spoke about the finality of orders. In considering the appealability of an order granting a defendant's motion for dismissal with leave to the plaintiff to file an amended complaint within a 20-day period, ruled that such an order was not final and consequently was not appealable. What was required the Court said was a second order containing an 'absolute dismissal' of the suit which should have been entered once the period for filing the amended complaint had expired. The plaintiff's appeal had been filed almost 2 years after the entry of the conditional dismissal order, and the defendant sought a dismissal of the appeal on the grounds...