Melechinsky v. Laurie

386 A.2d 1121, 119 R.I. 944, 1978 R.I. LEXIS 792

Opinion

This is a petition for habeas corpus in which the petitioner, who was President of Tivian Laboratories Inc., challenged the legality of a January 20, 1977 District Court order committing the petitioner to the Adult Correctional Institutions. We issued the writ and in Melechinsky v. Laurie, 119 R.I. 708, 382 A.2d 1316 (1978), quashed the commitment order. This litigation was precipitated by the alleged failure of the responsible corporate officials to furnish the Division of Taxation’s Field Audit Section with certain financial records.

On January, 21, 1977, Tivian Laboratories, Inc. filed a stipulation in a certain District Court proceeding indicating that it “being grieved of the judgment rendered 20 January 1977 in the amount of $3,300, appeals to the Providence County Superior Court.” A year later, in January 1978, the Division of Taxation filed in this proceeding a motion asking that we dismiss Tivian’s appeal and pointing out that pursuant to G.L. 1956 (1970 Reenactment) §44-19-27.4 as amended by P.L. 1976, ch. 140, sec. 27, Tivian should have taken its appeal from the District Court judgment directly to this court. Tivian concedes the soundness of the Division of Taxation’s position but asks that we consider its January 1977 stipulation as an appeal to this court.

Aram K. Berberian, for petitioner. Julius C. Michaelson, Attorney General, Allen P. Rubine, Assistant Attorney General, for respondent.

Both the Division’s motion to dismiss and Tivian’s request are out of order for the simple reason that the motion and request are not properly before us, since the above-entitled case, as noted before, is a habeas corpus proceeding and not one where we are sitting in review of the monetary judgment entered in the Superior Court. Consequently, considering Tivian’s request as a motion, it is obvious that both the Division’s motion and Tivian’s motion must be denied pro forma because neither one is properly before us in this proceeding.