Thrift v. Thrift

• Decision Date: 03 March 1910
• Citation: 75 A. 484,30 R.I. 357
• Parties: THRIFT v. THRIFT.
• Court: Rhode Island Supreme Court

75 A. 484

30 R.I. 357

THRIFT

v. THRIFT.

Supreme Court of Rhode Island.

March 3, 1910.

Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

Petition by Georgia B. Thrift against Frederick W. Thrift. On petitioner's motion to dismiss respondent's bill of exceptions taken to a decision for petitioner. Motion denied.

Tillinghast & Collins and Charles R. Easton, for petitioner.

Bassett & Raymond (R. W. Richmond, of counsel), for respondent.

DUBOIS, C. J. This is a petition for divorce, alleging extreme cruelty on the part of the respondent towards the petitioner. The case was heard by one of the justices of the superior court, who rendered a decision in favor of the petitioner. The respondent thereupon filed his motion for a new trial, which was based upon the following grounds: That the decision is against the evidence and the weight thereof; that the court erred as a matter of law in not dismissing the petition on the evidence presented to it; that the court erred as a matter of law in deciding that the respondent had been guilty of extreme cruelty; that the court erred in awarding the custody of the minor child to the petitioner. The motion for a new trial was heard and denied, and to this denial the respondent excepted, and within the statutory period filed in the superior court his bill of exceptions, which has been duly certified and transmitted to this court with the other papers in the cause, including the petitioner's motion to dismiss the bill of exceptions.

The case was heard by this court solely upon the motion to dismiss, which is founded upon the reasons following: (1) Because a proceeding for divorce is purely a statutory proceeding, in which there is no statutory right to a bill of exceptions. (2) Because the bill of exceptions presented for allowance states no question of law raised during the trial and ruled upon by the Justice presiding unfavorably to the respondent. (3) Because said bill of exceptions states no question of law raised during the trial to which any exception was taken. (4) Because there was no issue of law Involved in the decision of said case. (5) Because the case is purely statutory, and the rights and remedies of the parties in such proceedings must be according to the course of equity. (6) Because a bill of exceptions under the laws of Rhode Island is not applicable to a divorce proceeding. (7) Because the Supreme Court has no jurisdiction in a divorce case to review on exception a decision of the superior court on a question of fact.

It is perfectly apparent, from a consideration of the first, fifth, and sixth grounds of the motion to dismiss, that the question whether there is a statutory right to a bill of exceptions in divorce proceedings is thereby raised. The statute relating to exceptions, in a case heard by the superior court without a jury, in force at the time of the trial, was Court and Practice Act, § 481, now Gen. Laws 1009, c. 298, § 8, which reads as follows: "Any person interested in a probate or other appeal, and any party to a civil action heard on its merits by the superior court without a jury, aggrieved by a ruling, decision or finding of the court upon any issue of fact or matter of law, or upon a motion for a new trial for newly discovered evidence, may except thereto." As it is evident that a divorce proceeding is neither a probate nor other appeal, and as we decided in Fidler v. Fidler, 28 R. I. 102, 65 Atl. 609, that an appeal did not lie from a final decree of the superior court in a petition for divorce, appeals may be eliminated from the present consideration.

It is therefore necessary to construe the words "civil action," in section 481 aforesaid, in order to determine whether the Legislature intended thereby to include suits for divorce. The Court and Practice Act, where of the above statute forms a part, is entitled: "An act revising the judicial system of the state to conform to article 12 of amendments to the Constitution." By the provisions of the first section of said article 12: "The Supreme Court shall have final revisory and appellate jurisdiction upon all questions of law and equity." The jurisdiction conferred upon the Supreme Court by this constitutional provision is undoubtedly broad enough to include questions of law arising in the trial of a divorce case. But it is manifest that the constitutional amendment is not self-executing, for by the fifth section thereof "the General Assembly shall provide by law for carrying this amendment into effect." As the Court and Practice Act is the law by which the General Assembly carried the amendment into effect, it is to be presumed that the Legislature thereby intended to furnish adequate instrumentalities for that purpose. Statutes in furtherance of the simple and convenient administration of justice are deemed remedial, and are to be liberally construed. Larkin v. Saffarans (C. C.) 15 Fed. 147; White County v. Key, 30 Ark. 603; Fisher v. Hervey, 6 Colo. 16; Willis v. Fincher, 68 Ga. 444; Heman v. McNamara, 77 Mo. App. 1; Quinn v. Fidelity Beneficial Assoc., 100 Pa. 382; Hassenplug's Appeal, 106 Pa. 527; Pearson v. Lovejoy, 53 Barb. (N. Y.) 407; Hoguet v. Wallace, 28 N.J.Law, 523.

The second section of the Court and Practice Act reads as follows: "The Supreme Court shall have general supervision of all courts of inferior jurisdiction to correct and prevent errors and abuses therein when no other remedy is expressly provided; it may issue writs of habeas corpus, of error, certiorari, mandamus, prohibition, quo warranto, and all other extraordinary and prerogative writs and processes necessary for the furtherance of justice and the due administration of the law; it may entertain informations in the nature of quo warranto and petitions in equity to determine title to any office; it shall have jurisdiction of petitions for trials and new trials as provided by law, bills of exceptions, appeals, and certifications to the Supreme Court, and special cases in which parties having adversary interests concur in stating questions for the opinion of the court as provided by law, and shall by general or special rules regulate the admission of attorneys to practice in all the courts of the state." The scope of this section was considered in Hyde v. Superior Court, 28 R. I. 210, 66 Atl. 295, as follows: "it is plain that the 'final revisory and appellate jurisdiction' of this court applies to 'all questions of law and equity,' and no form of words could confer broader and more complete powers of 'supervision of all courts of inferior jurisdiction to correct and prevent errors and abuses therein where no other remedy is expressly provided.'"

As we pointed out in the case of Fidler v. Fidler, supra, remedies to be applied after final decree in divorce cases are inappropriate, because under the provisions of Gen. Laws, c. 195, as amended by Pub. Laws, c. 971, passed April 2, 1902, § 19, now Gen. Laws, 1909, c. 247, § 19, "After final decree for divorce from the bond of marriage either party may marry again," and where either party has so remarried the rights of a third party have intervened. This consideration, therefore, would exclude the use of such remedies as appeal, error, certiorari, or of any prerogative or extraordinary writ for the purpose of reversing the final decree in a divorce case. Furthermore, under the provisions of Court and Practice Act, § 2, aforesaid, jurisdiction over bills of exceptions is conferred upon this court. This method of presenting questions of law for determination, being familiar and simple, when available, should be preferred to extraordinary and more complicated ways of reaching the same result. A careful examination of the Court and Practice Act discloses that the only specific provision therein made, whereby a party can bring a question of law before this court, is by a bill of exceptions. Unless parties in divorce cases are clearly excluded from the benefit of this provision, they should be permitted to participate therein.

The petitioner, however, contends that there never has been any statutory provision for an appeal or review in divorce cases in this state, and in support of such contention quotes from the case of Banigan v. Banigan, 26 R. I. 454, 59 Atl. 313 (1904), as follows: "Under Pub. Laws R. I. c. 649, any one justice of the Supreme Court assigned to the Appellate Division is a quorum for the trial of all petitions for divorce, whether contested or uncontested; and, this being so, all incidental questions arising in connection with the trial of such cases are within the jurisdiction and subject to the final decision of such justices. The petition by the master for instruction and advice above referred to was therefore clearly within the jurisdiction of Mr. Justice Dubois, and, he having passed thereon, there is no authority in this court either to reverse or review his finding." It is pertinent to observe that, although the foregoing case was decided after the adoption of article 12 of amendments to the Constitution, the decision preceded the passage of the Court and Practice Act and the reconstruction of the courts thereunder. By the provisions of section 1 of said Court and Practice Act "the Supreme Court shall consist of a Chief Justice and four Associate Justices," and under section 1 of said article 12, a majority of the judges of the Supreme Court shall always be necessary to constitute a quorum, and in the absence of a quorum the justices in attendance may adjourn. Court and Practice Act, § 44.

The petitioner also calls attention to the case of Fidler v. Fidler, supra, wherein this court decided that there was no appeal from a final decree of the superior court in a petition for divorce, and argues that, while that case was brought up under a different section of the Court and Practice Act than the present case, nevertheless the reasons for the decision set forth in the opinion are equally...