Summary
denying the plaintiff's appeal because such appeal was taken “from the trial justice's decision, rather than from a judgment as provided for by the rules”
Summary of this case from Palin v. PalinOpinion
May 21, 1968.
PRESENT: Roberts, C.J., Paolino, Powers, Joslin and Kelleher, JJ.
RULES OF CIVIL PROCEDURE. Prerequisites to Appeal. Entry of Judgment. Trial justice filed decision in action under Uniform Declaratory Judgments Act but, no judgment having been entered, the appeal claimed by plaintiff was not effective. R.C.P., rules 58 (a), 73 (a). G.L. 1956, c. 9-30.
CIVIL ACTION seeking a declaration of rights in proceeds received following foreclosure of second mortgage, before supreme court following decision by Perkins, J., of superior court, denying and dismissing the complaint without prejudice, heard and court holds appeal, failing on jurisdictional grounds, be denied and dismissed.
V. James Santaniello, for plaintiff.
Kirshenbaum Kirshenbaum, Alfred Factor, for defendants.
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.
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.