Lord v. McGuire

This is a negligence action which was commenced in the Superior Court on July 12, 1965. A stipulation signed by counsel for both parties was filed on September 8, 1965 whereby the defendant’s plea in abatement was sustained. The jacket of the case shows that on September 23, 1965 judgment was entered for [836] the defendant and on September 29, 1965, the earlier judgment for the defendant was vacated. Within the requisite time provided by statute, the defendant, in his effort to obtain a judicial review of the vacating of the September 23, 1965 judgment, filed his notice of intention to prosecute a bill of exceptions to this court. The trial justice fixed November 1, 1965 as the last day in which the defendant could file the bill of exceptions and the transcript. The defendant’s bill was filed in the clerk’s office on October 5, 1965. The case remained dormant for over four years until 'December 9, 1969 when the clerk of the Superior Court certified the cause and the papers therein to this court. Thereafter, on December 29, 1969, the defendant filed a motion which in substance seeks to establish the truth of his exceptions. The plaintiff has objected to the granting of the defendant’s motion. Bernard F. McSally, for plaintiff-appellee. Aram K. Berberian, for defendant-appellant. Although the defendant filed a notice of intention to prosecute a bill of exceptions and made deposit for the estimated cost of the transcript in accordance with G. L. 1956, §9-24-17, there is no evidence in the record to show that the bill was submitted to or allowed by any justice of the Superior Court as required by §9-24-20. The record also discloses that the requested transcript has not been filed or has it been allowed in accordance with the requirements of the statute. In these circumstances, the certification of this cause by the clerk of the Superior Court was premature. The defendant has not complied with the statutes cited herein and this court is without jurisdiction to entertain his appeal. Maioli v. Roderick, 104 R. I. 608, 247 A.2d 856. The defendant’s motion is denied and the cause and the papers previously certified are remanded to the Superior Court for further proceedings.