79 A. 960 | R.I. | 1911
This is an appeal from a decree of the Probate Court of the city of Pawtucket holding that a claim of Whitford, *393 Bartlett Co. against the estate of one Thomas Murray was barred by the statute of limitations and was tried by a justice of the Superior Court (jury trial being waived) on April 20, 1910. The record shows that on April 30, 1910, the court announced its decision, the conclusion of which is as follows: "The appeal is denied and dismissed and the decree of the Probate Court confirmed," and notice of said decision was mailed by the clerk of said court to the counsel for the respective parties on the same day. On May 2, 1910, the justice who heard the cause in said court recalled the rescript announcing said decision and on May 5, 1910, filed with the clerk a second decision reversing the former decision and concluding as follows: "We therefore feel obliged to sustain the appeal of the appellant." The appellee duly excepted to the second decision and the case is brought here on his bill of exceptions.
The exceptions must be dismissed for several reasons.
(1) Inasmuch as no transcript of evidence has ever been allowed by the justice who heard the cause and no petition to establish the truth of the transcript has ever been filed in this court, we are unable to consider his exceptions. Paull v.Paull,
(2) The exceptions are taken to the second decision rendered on May 5, 1910. In Ashaway National Bank v. Superior Court,
Among the papers in the case we find one entitled only as follows: "Superior Court, Providence, Sc. In Re Estate of Thomas Murray. It is hereby agreed and stipulated that the following statement is a true and proper statement of the testimony in said case." . . This paper purports to be signed by the counsel of record of the respective parties and appears by the filemark thereon to have been filed in the office of the clerk of the Superior Court for Providence County on April 20, 1910, but is not otherwise in any way authenticated. We are *394 consequently unable to determine its effect. If it is considered as a stipulation as to the evidence offered in the Probate Court of Pawtucket, we know of no provision of law giving jurisdiction to the Superior Court to decide a cause upon such an instrument. If it is an agreed statement of facts as provided for in sec. 4, cap. 298, Gen. Laws, 1909, — the provisions of said section are as follows: "Whenever a civil action, pending in a district court or in the Superior Court, is at issue on its merits, and the parties shall file in the clerk's office an agreed statement of the facts in such action, the court shall certify the action to the Supreme Court to be there heard and determined," and we know of no statutory authority for a decision of the cause in the Superior Court.
While appellee's bill of exceptions must be dismissed, the case must be remitted to the Superior Court for further proceedings.
