Opinion
APPEAL No. 75-279.
December 3, 1975.
Higgins, Cavanagh Cooney, Gerald C. DeMaria, for plaintiff.
Lovett Linder, Ltd., Stephen G. Linder, for defendant.
The defendant is before the court on a motion which seeks to vacate a Superior Court order dismissing his appeal.
An examination of the record discloses that the transcript had been filed in the Superior Court within the time allotted under Sup. Ct. R. 11(a), but that the case was not certified to this court by the clerk of the Superior Court within the time set forth in Sup. Ct. R. 11(b). The record further discloses that at the time the trial justice entertained the motion to dismiss defendant's appeal, the case was properly docketed in this court. For that reason, the trial justice was without jurisdiction to grant the motion to dismiss. Devereaux v. McGarry's, Inc., 107 R.I. 325, 266 A.2d 908 (1970). Also, see Hattie Carnegie Industries, Inc. v. Lopreato, 114 R.I. 319, 333 A.2d 145 (1975). Accordingly, defendant's motion is granted. Doris, J. did not participate.