East Providence Credit Union v. Brown

242 A.2d 428, 104 R.I. 92, 1968 R.I. LEXIS 619

• Court: Supreme Court of Rhode Island
• Decided: May 21, 1968
• Docket: 331-Appeal
• Status: Published

Opinion

Joslin, J.

In this civil action brought in the superior court under the Uniform Declaratory Judgments Act, G. L. 1956, chap. 30 of title 9, the plaintiff, formerly the holder of both the first and second mortgages on a parcel of real estate heretofore owned by the defendants, sought a declaration of its rights relative to the proceeds it received when, in foreclosing its second mortgage on defendants’ property, it purported to sell free and clear of the first mortgage. Following a hearing on the merits, the trial justice reserved decision and thereafter filed a written opinion denying and dismissing the complaint without prejudice.

The plaintiff’s appeal fails because the superior court rules of civil procedure relative to appeals have not been satisfied. Rule 73 (a) permits an appeal from an entry of a judgment, while rule 58(a) says that a judgment must be set forth on a separate document and that it shall not be effective or deemed entered unless so set forth and signed by the clerk. Notwithstanding these requirements, the appeal here was from the trial justice’s decision, rather than from a judgment as provided for by the rules. Inasmuch as a jurisdictional prerequisite has not been satisfied, the appeal cannot be entertained.

V. James Santaniello, for plaintiff. Kirshenbaum & Kirshenbaum, Alfred Factor, for defendants.

If we had reached the trial justice’s decision, it is highly unlikely that we would have found that he abused his discretion by refusing to declare rights when to have done so might have materially affected the interests of persons who were not parties to the proceedings — the purchaser of the property which was sold at the foreclosure sale as well as his grantee, the present owner.

The plaintiff’s appeal is denied and dismissed.