Blanding v. Sayles

45 A. 148, 21 R.I. 512, 1900 R.I. LEXIS 6

Opinion

Matteson, C. J.

(1) A majority of the court thinks the plaintiff’s petition is premature. Unless the decision of the Common Pleas Division of June 18, 1898, was a final one, which the com’t did not decide in its former opinion (21 R. I. 211), as the plaintiff assumes, the orders of the Common Pleas Division vacating that decision and assigning the case for hearing on the defendant’s exceptions to the auditor’s report were merely interlocutory, and a petition for new trial cannot be properly filed until a final decision has been reached in that Division. Taylor v. Loomis, 21 R. I. 277.

Should the court be of the opinion, on consideration of the present petition, that the Common Pleas Division had authority to vacate its decision of June 18, 1898, then its decision on the present petition would be a mere dictum, the petition not being properly before it.

It may be that when the Common Pleas Division has heard the exceptions, it will overrule them ; in which event there will be no occasion to pass on the questions raised by the present petition. If, on the other hand, that Division sustains the exceptions in whole or in part, the plaintiff, having excepted to the ruling vacating the decision of June 18, 1898, ■ will then have his remedy by petition for new trial to have the questions presented by this petition determined.

Petition denied, and case remitted to the Common Pleas Division for further proceedings.