Scolardi v. Scolardi
| Decision Date | 28 January 1920 |
| Docket Number | No. 5334.,5334. |
| Citation | 108 A. 651 |
| Parties | SCOLARDI v. SCOLARDI. |
| Court | Rhode Island Supreme Court |
Action by Antonio Scolardi against Elisabetta Scolardi, in which plaintiff obtained a decree of divorce. Petition by defendant to vacate the final decree, and to grant new trial. Petition denied and dismissed.
Benjamin Cianciarulo, of Providence, for petitioner.
Pettine & De Pasquale, of Providence, for respondent.
This is a petition filed in this court to vacate a final decree entered in a divorce case and to grant a trial.
This respondent tiled in the superior court his petition, divorce No. 9750, Antonio Scolardi v. Elisabetta Scolardi, for a divorce from this petitioner. Citation in the original divorce proceeding was duly served upon the respondent, this petitioner, in Italy. No appearance being entered for the respondent, the case was heard as an uncontested petition, and the petition was granted on September 21, 1918, on the ground of extreme cruelty. A final decree of divorce was entered March 24, 1910.
On November 11, 1919, the respondent in the original proceeding filed this petition, seeking to vacate said final decree and to obtain a trial upon the petition for divorce, and alleges that she was in Italy with her husband's consent; that at the time the petition was served on her she was unable, by reason of the war, to leave Italy and come to Rhode Island to defend the petition; and that on her first opportunity she came to Rhode Island and filed this petition which is based on sections 1 and 3, of chapter 297, General Laws 1909.
Said section 1 reads as follows:
"A party or garnishee in any action or proceeding in the superior court or in any district court wherein no trial has been had, against whom a judgment has been rendered on nonsuit, default, or report of referees, by reason of accident, mistake, or unforeseen cause, may, within one year after such judgment, petition the Supreme Court for a trial; and the Supreme Court may order a trial in the action or proceeding in the court in which such judgment was entered, upon such terms as the Supreme Court shall prescribe."
This section affords no relief to the petitioner as no judgment has been entered against her. No judgment can be entered in a divorce case. Divorces in this state are purely statutory and follow the course of equity so far as the same is applicable. In equity and divorce causes the decision of the court is embodied in a decree and the petitioner is asking that a decree and not a judgment be vacated.
Said section 3 reads as follows:
"When any person is aggrieved by any order, decree, decision, or judgment of the superior court or of any probate court or town council, and from accident, mistake, unforeseen cause, or lack of evidence newly discovered, has failed to claim or prosecute his appeal, or to file or prosecute a bill of exceptions, or motion, or petition for a new trial, the Supreme Court, if it appears that justice requires a revision of the case, may, upon petition filed within one year after the entry of such order, decree, decision, or judgment, allow an appeal to be taken and prosecuted, or a bill of exceptions or a motion for a new trial to be filed and prosecuted, upon such terms and conditions as the court may prescribe."
Has the petitioner, "from accident, mistake, unforeseen cause, or lack of evidence newly discovered * * * failed to claim or prosecute" her "appeal, or to file or prosecute a bill of exceptions, or motion, or petition for a new trial"?
It cannot be said that "from accident, mistake," or "unforeseen cause" she has failed to claim or prosecute her appeal, because there is no appeal from a decision in a divorce case. See Fidler v. Fidler, 28 R. I. 102, 65 Atl. 609, 13 Ann. Cas. 835. A motion for a new trial is an inappropriate procedure in a divorce case. Divorces are heard by a justice sitting without a jury. The action of a justice sitting...
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Smith v. Smith
...of the trial. See Fidler v. Fidler, 28 R, I. 102, 65 A. 609, 13 Ann. Cas. 835; Thrift v. Thrift, 30 R. I. 357, 75 A. 484; Scolardi v. Scolardi, 42 R. I. 456, 108 A. 651; Camire v. Cam ire, 43 R. I. 489, 113 A. 748; Roy v. Roy, 44 R. I. 160, 116 A. 283; Grant v. Grant, 44 R. I. 169, 116 A. 4......
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Raymond v. Raymond, 1298-A
......4 An example of this type of exactitude can be seen in Scolardi v. Scolardi, 42 R.I. 456, 108 A. 651 (1920). There this court was presented with a petition to vacate a final decree entered in a divorce case. One ......
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Carvalho v. Carvalho
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...divorce causes just as in those in equity a decision of the court such as we here review should be embodied in a decree. Scolardi v. Scolardi, 42 R.I. 456, 108 A. 651. Because equity speaks only through decrees, it is only after the entry thereof that a cause in equity can come to this cour......