Vaill v. McPhail

• Decision Date: 02 July 1912
• Citation: 34 R.I. 361,83 A. 1075
• Parties: VAILL v. MCPHAIL et al.
• Court: Rhode Island Supreme Court

83 A. 1075

34 R.I. 361

VAILL

v. MCPHAIL et al.

Supreme Court of Rhode Island.

July 2, 1912.

Action by Julia M. Vaill against Donald T. McPhail and others. From a decree for complainant, defendants appeal, and complainant moves to dismiss. Motion denied.

William A. Spicer, Jr., Eugene A. Kingman, and Edwards & Angell, all of Providence, for complainant.

Willis B. Richardson and Frank H. Hammill, both of Providence, for respondents.

SWEETLAND, J. The cause is before us at this time upon the complainant's motion to dismiss the respondents' appeal from the final decree of the superior court on the ground that the respondents did not file a sufficient statement of their reasons of appeal as required by the statute.

The complainant in her bill of complaint seeks to have two mortgages upon her property in the town of New Shoreham, purporting to be executed by her and delivered to the respondent McPhail, delivered up to be canceled. She asks this relief on the ground that, if she did execute said mortgages, she did so unwittingly and without consideration, at the request of the respondent Barton, who was acting as her confidential agent, that she was influenced wholly by her implicit trust and confidence in said Barton, and that the respondent McPhail, at the time of the delivery of said mortgage to him, had full notice of these facts. At the conclusion of the hearing in the superior court upon the bill, answer, replication, and proof, the presiding justice gave an oral decision from the bench. He decided that a confidential relationship between the complainant and the respondent Barton was established, that the respondent McPhail had full knowledge of it, and the justice granted the prayer of the bill. Upon this decision a final decree was afterwards entered, in which it was decreed that said mortgages and a certain bond given by the complainant to the respondent McPhail be surrendered for cancellation, and that the same be canceled.

Within the time allowed by statute, the respondents filed in the clerk's office of the superior court a claim of appeal with a statement of their reasons therefor. The said reasons are as follows:

"First. That the decision of the justice upon which said final decree was based was erroneous, and against the evidence and the weight thereof.

"Second. That said decision of the justice upon which said final decree was based was erroneous and against the law.

"Third. That said final decree is against the evidence and the weight thereof.

"Fourth. That said final decree is against the law.

"Fifth. That the decision of the justice who heard and tried said cause is erroneous and against the evidence and against the law, and that said final decree based upon said erroneous decision is erroneous and against the evidence and the law."

The complainant's motion to dismiss is based upon her claim that the said reasons are indefinite, and that to give this court jurisdiction more specific reasons should have been assigned.

In considering this motion we will first examine the nature of the appeal in equity causes from the superior court to the Supreme Court given by our statute. If the effect of such appeal is to transfer the whole cause to this court, here to be tried de novo, then the statement of the reasons of appeal may well be of a general character, simply setting forth in a formal way that the appellant is aggrieved, that he is dissatisfied with the decree entered in the superior court, and desires to have the cause retried in this court. If, however, the appeal removes nothing to this court except the errors appearing upon the record and complained of by the appellant, then the statement of the reasons of appeal should be specific, should be as full as the claim of the appellant, and must be regarded as the jurisdictional basis of the cause in this court, limiting all subsequent proceedings here. In determining this question, we get little, if any, assistance from the fact that the word "appeal" is used in the statute. Appeals are of civil law origin, early adopted into chancery procedure, and subjected the whole cause to retrial in the appellate court, differing from the common-law writ of error which removed only questions of law for re-examination. In equity proceedings in England appeals, by that name, have existed for centuries and are of two kinds. A party aggrieved by the order or decree of the Master of the Rolls or of a Vice Chancellor may appeal to the Lord Chancellor and the Lord Justices of the Court of Appeal in Chancery. This is known as an "appeal in chancery." Or the aggrieved party may appeal from the decree or order of the Court of Chancery or the Court of Appeal in Chancery to the House of Lords. While some of the qualities of each of these two kinds of appeal, the appeal in chancery and to the House of Lords, are similar, they are in many particulars quite unlike. Their differences in general terms are that the appeal in chancery conforms rather to the primary notion of an appeal. It provides a rehearing in the appellate court with the entry of a decree as upon a trial de novo. An appeal to the House of Lords must contain a summary of the reasons upon which the appellant relies, and it brings before the Lords the question of error in the order or decree complained of in the appellant's petition of appeal. 5 Bligh (N. S.) 714. After hearing, the Lords give judgment affirming, reversing, or varying said order or decree. It is the contention of the appellees that the equity appeal in this state in its main characteristics conforms to an appeal to the House of Lords. The term "appeal" has been largely used in the statutes of the various states of this country as a general term to designate the proceeding for the removal of causes from a lower to an appellate court for the purpose of review. In many instances it has been used indiscriminately with reference to the removal of suits at law as well as in equity. In some states the courts have endeavored in their interpretation of statutes to maintain the old distinction between appeal for equity and error for law review. In Horton v. Miller, 44 Pa. 256, as the relief sought was equitable, the court turned a writ of error into an appeal. In considering this matter the Supreme Court of Nebraska, in view of the uncertainty that attends an examination of the statutes and reports of the several states, said: "An examination of this question is attended with much confusion, owing to the fact that in some states all appellate proceedings are denominated appeals while in others the distinction between appeals in equity and review upon petition in error is strictly adhered to." State v. Doane, 35 Neb. 709, 53 N. W. 612. In many states cases at law are removed by appeal to appellate courts and there retried, as were appeals from justice and district courts with which we were long familiar in this state. In Mann v. Young, 1 Wash. T. 454, the court held that, under the civil practice act, it was intended "that a writ of error shall be so amplified in use as to bring up, not merely causes of common law, but also those of equity jurisdiction." In Parish v. Mining Co., 5 N. M. 234, 21 Pac. 82, the court held that under the statute a writ of error will lie to review a decree in equity as well as a judgment at law; while the court in Springer's Adm'r v. Springer et al., 43 Pa. 519, said: "But a writ of error cannot, without a change of its nature, become an adequate form of review of equitable remedies, because it brings up only what is properly record, in order to assign error in that. * * * It is by appeal that equity remedies are reviewed in a higher court, and that brings up the whole case, and not merely the record of it." There is a like diversity of statutes and decisions not only with regard to the kind of causes which are removed by appeal, but also as to the nature of the questions carried to the appellate court, the extent of the jurisdiction of the appellate court over the cause, and as to the procedure in that court.

Mason v. Alexander, 44 Ohio St. 327, 7 N. E. 438, was a suit at law, but we are now considering the nature of an appeal, as it exists in the various states, and the language of the court is as applicable to appeals in equity as to appeals in law. The court said: "The practice in Ohio is essentially different from the practice in other states in removing cases from general trial courts to appellate courts. While in many of the states and perhaps in all except in our own an appeal from a court of general jurisdiction is in the nature of a writ of error, whereby the appellate court passes upon the record, as to facts as well as law, does not hear additional or other evidence, but confines its adjudications to errors appearing upon the record, in Ohio the appeal itself vacates, without revisal, the whole proceeding as to findings of fact as well as law, and the case is heard upon the same or other pleadings, and upon such competent testimony as may be offered in that court. It takes up the subject of the action de novo, in respect to pleadings, necessary parties, trial and judgment, in like manner as if the cause had never been tried below."

In Pierce v. Wilson et al., 2 Iowa, 26, the court said: "But it must be borne in mind that this is an appeal in chancery, and in this court the facts as well as the law of the case are again reviewed and readjudicated. Stockwell v. David, 1 G. Greene, 115. Upon an examination of the whole case, this court will render such a decree as should have been entered in the first instance consistent with the case made by the bill and sustained by the proof."

In Durkee v. Stringham, 8 Wis. 1, it was held: "The first point that naturally presents itself is one of practice. Some of the appellees, or Taylor, at least, as well as the appellant, Joseph Stringham, were dissatisfied with the decree of the circuit court, but neglected to take their appeal, supposing the appeal which was...