Opinion
October 4, 1899.
PRESENT: Matteson, C.J., Stiness and Tillinghast, JJ.
(1) Appeal from Town Council. Time Allowed to Perfect Appeal. Effect of Depositing in Mails. It is essential to the validity of an appeal from an order of a town council establishing an highway under the provisions of Gen. Laws R.I. cap. 71, § 11, and cap. 248, § 1, that the bond required by said statutes reach the town clerk within the period prescribed by law. The time of depositing such papers in the mail, as shown by the postmark thereon, is not material. Semble, under the circumstances the appellant's remedy is under Gen. Laws R.I. cap. 251, § 3.
APPEAL FROM AN ORDER OF A TOWN COUNCIL, establishing an highway. The town council of New Shoreham ordered a highway to be established and laid out in that town. From this decree an appeal was claimed by the present appellant. The notice of appeal, bond, and claim for jury trial were forwarded by registered mail to the town clerk of New Shoreham. They reached the latter place shortly before midnight on the last of the forty days within which an appeal could be claimed, but were not received by the town clerk until five days later. The appellant entered his reasons of appeal in the Common Pleas Division, and filed a petition praying for the removal of the cause to the United States Circuit Court. This motion was granted, whereupon the appellee excepted and filed a motion for a new trial. Heard on petition of appellee for a new trial upon the question of removal, and new trial granted.
Edwards Angell, for appellant.
C.E. Champlin, for appellee.
Our opinion is that, as the appeal bond failed to reach the clerk within the period prescribed by law, the appeal was not complete. As the failure was apparently due to accident, we think the appellant's remedy is by petition for new trial under the statute. We think that the order of removal made by the Common Pleas Division was erroneous.
Appellee's petition for new trial granted, and case remitted to the Common Pleas Division with direction to vacate its order of removal and to dismiss the proceeding.