Sundlun v. Volpe
| Decision Date | 16 December 1938 |
| Docket Number | No. 1396.,1396. |
| Citation | 2 A.2d 875 |
| Parties | SUNDLUN v. VOLPE et al. |
| Court | Rhode Island Supreme Court |
Appeal from Superior Court, Providence and Bristol Counties; Alberic A. Archambault, Judge.
Suit in equity by Walter I. Sundlun against Louis Volpe and others to set aside a deed of real estate, to nullify a mortgage of the real estate, and to have the real estate declared to be the property of Louis Volpe and to be subject to the levy of an execution against him in favor of the complainant. From a decree dismissing the bill of complaint, the complainant appeals.
Reversed and remanded.
Sigmund W. Fischer, Jr., and Baker & Spicer, all of Providence, for complainant.
Waldman & Waldman, of Providence, for respondents.
This is a bill in equity brought by a judgment creditor of Louis Volpe, one of the respondents, to set aside a deed of real estate executed by Annie Volpe, another respondent, to Bernard Abedon, a third respondent; and also to nullify a certain mortgage of that real estate executed by the latter to another respondent, all on the ground that these conveyances were made without consideration and to hinder and defeat the rights of the judgment creditor against the debtor Louis Volpe. The bill also seeks to have such real estate declared to be the property of Louis Volpe and to be subject to the levy of an execution against him in favor of the complainant. The cause was heard upon bill, answer, replication and proof before a justice of the superior court.
At the conclusion of the evidence for the complainant the respondents' attorney without offering any evidence for them and without formally closing their case, moved "that the bill be denied and dismissed." Thereupon the trial justice, without insisting upon a formal closing of the respondents' case, proceeded to decide the merits solely upon the complainant's evidence. On such evidence he made certain findings of fact and also found that the complainant had failed to prove certain material facts which he held were necessary for the complainant to prevail upon the allegations of the bill of complaint. A decree accordingly was entered, denying the relief prayed for and dismissing the bill of complaint; and the cause is before us upon the complainant's appeal from this decree.
Nothing in the transcript of evidence shows that the respondents had closed, or intended to close, their case without the introduction of evidence in their behalf. Indeed, at the hearing before us the respondents' attorney expressly argued that they had a good defense and wanted an opportunity to present it, if this appeal were to be decided adversely to them. The attorney for the complainant argued substantially, if not entirely, for a completion of the hearing below rather than for a final determination, on this appeal, of the merits of the cause upon the evidence in the transcript.
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