Rabinowitz v. Bayliss, 943
| Decision Date | 29 March 1950 |
| Docket Number | No. 943,943 |
| Citation | 76 R.I. 479,72 A.2d 668 |
| Parties | RABINOWITZ v. BAYLISS. M. P. |
| Court | Rhode Island Supreme Court |
Carroll & Dwyer, John G. Carroll, Providence, for petitioner, George D. Bayliss.
Samson Nathanson, Providence, for Minna B. Rabinowitz.
This is a petition for certiorari directed to the superior court to certify a certain record relating to an order vacating a dedimus potestatem, hereinafter called a commission, to take the deposition of a party in the above-entitled case to the end that all or so much of said record as is deemed illegal may be quashed by this court. The writ was issued and the superior court has duly complied therewith.
The record shows that George D. Bayliss, of the city of Richmond, Virginia, the petitioner here, is the defendant in an action of trespass on the case for negligence which was commenced by writ of attachment of his property because of nonresidence in this state. The action is for personal injuries to Minna B. Rabinowitz, the plaintiff, as the result of an accident between two automobiles in the city of Garys-burg, North Carolina, on December 8, 1945. A general appearance was entered on behalf of the defendant and pleas of the general issue and statute of limitations were thereafter filed.
When the case was ready for assignment for trial on the merits the defendant filed a petition for a commission to take his own deposition in Richmond, Virginia, which petition was granted by a judge of the superior court, and the commission was issued. Shortly thereafter the plaintiff filed a motion to vacate and quash the order allowing the commission, which motion was heard and granted by another judge of the superior court. The present petition seeks to quash that order.
The petitioner makes two contentions: first, that it was reversible error for one judge to vacate and quash the order of another judge of the same court; and secondly that, contrary to the ruling of the second judge, a party in an action at law is entitled as of right to a commission authorizing the taking of his own deposition. Addressing ourselves to the first contention and without attempting to discuss at length the important question of procedure thus raised, because in the circumstances of this case such question does not affect any fundamental right of the plaintiff that could not otherwise be raised again at the trial in the same court and be reviewed ultimately by appellate proceeding in this court, we are of the opinion that the ruling under consideration was contrary to and does violence to our heretofore unquestioned practice in similar situations.
The order of the first judge was at best interlocutory in character. It could have been re-examined under our practice at the trial of the case upon timely objection by the plaintiff to the introduction in evidence of the deposition and, in the event of an adverse ruling, the matter could have been brought to this court at the proper time for final determination by a bill of exceptions. The mere taking of the deposition did not bind the defendant to use it as he remained free to abandon it and testify in person at the trial. Neither party can be compelled to use a deposition even if properly taken, although either one may use it at the appropriate time if necessary or desirable. Brody v. Cooper, 45 R.I. 453, 457, 124 A. 2. Assuming, without deciding, that a judge has the power to vacate in the same case a prior decision or order of another judge of coordinate jurisdiction, it would seem that such power should be exercised only in unusual circumstances and for the most cogent reasons. See Peterson v. Hopson, 306 Mass. 597, 29 N.E.2d 140, 132 A.L.R. 1. For a pertinent and comprehensive note, see 132 A.L.R. 14.
Petitioner's second contention, which raises the controlling question in this case, involves the construction of General Laws 1938, chapter 539, §§...
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