Fiske v. Vaughn

72 A. 530, 29 R.I. 465, 1909 R.I. LEXIS 42

• Court: Supreme Court of Rhode Island
• Decided: April 23, 1909
• Status: Published

Opinion

Blodgett, J.

This is a petition for a writ of mandamus against the respondent, a former town clerk of West Greenwich, to require the respondent to record in the proper record book of said town the proceedings of a financial town meeting of said town, alleged to have been held on December 22, 1906.

The petition was denied by the Superior Court, and the petitioners excepted to such denial and have brought their exceptions to this court, where the respondent has moved to dismiss the bill of exceptions on the ground that the petitioner’s remedy is by appeal and not by bill of exceptions, and relies upon the provisions of C. P. A., § 328, as follows: “Any party aggrieved by a final decree of the superior court in any cause in equity or proceeding following the course of equity may, within thirty days after the entry thereof, and any party aggrieved by a final judgment in any proceeding in, or in the nature of, a prerogative writ, except habeas corpus, may, within five days after entry of such judgment, appeal to the supreme court.” . . .

We are of the opinion that the motion to dismiss must be granted. The section in question is a special provision governing “ any proceeding in, or in the nature of, a prerogative writ, except habeas corpus,” as well as equity causes or proceedings following the course of equity,, and it is no more permissible to prefer a bill of exceptions in one of these classes of cases than in another. In each of them an appeal is the statutory method of bringing such case before this court for review.

Samuel W. K. Allen, for petitioner. P. Henry Quinn, for respondent.

It follows that the case is not properly before this court, and that the motion to dismiss the bill of exceptions must be granted.