[5] The fourth point raises the question whether the action was properly brought by the administrator of the deceased. As to Action by James J. Conners, administrator, | requires at this time either a reversal or against the Public Service Electric Company, modification of the judgment below. for workman's compensation. On certiorari to review a judgment of the court of common pleas for plaintiff. Judgment affirmed. Argued February term, 1916, before PARK-this counsel relies on section 19 of the act, ER, MINTURN, and KALISCH, JJ. Leonard J. Tynan, of Newark, for prosecutor. Charles M. Egan, of Jersey City, for petitioner. PARKER, J. This is a workman's compensation case. The suit is brought for the benefit of the father, mother, and sister of the deceased, all of whom claim to be dependents. [1, 2] The first point made is that the court had no evidence before it to justify a finding that the wages of the deceased were $11.94 a week. This which provides that, where no executor or administrator is qualified, the judge shall by order direct payment to be made to such person as would be appointed administrator of the estate of such deceased, etc. provision of the act plainly contemplates the institution of the proceeding by the executor or administrator of the deceased, where there is an executor or administrator, and, if there is none, by such person as would be entitled to administration. There is an administrator in the present case, and plainly the suit was properly brought by him. See McFarland v. Central R. R. Co., 84 N. J. Law, 435, 87 Atl. 144. There was such evidence in the shape of a letter written by an au[6, 7] The next point raises the question thorized agent of the defendant company whether the father and mother and sister stating that fact. In addition to this, it ap- of the deceased were actual dependents in peared that the deceased had been taken on in one department at $1.75 a day, and work- the sense intended by the statute. The trial ed for six days a week in that department, court held that they were actual dependents, and that he was afterwards transferred to relying on the case of Havey v. Erie R. R. another department where he worked seven Co., 87 N. J. Law, 444, 95 Atl. 124, decided by this court. That case was governed by days a week at the same rate of $1.75, or $12.25 a week if he worked steadily. Coun- the act as it stood before the amendment of sel seems to rely on the provision in the stat-1913, was reversed in the Court of Errors and Appeals (96 Atl. 995), and differs on the ute with relation to weekly wages being taken to be six times the average daily earn- facts. It is necessary, therefore, to examine ings for a working day of ordinary length, excluding overtime; but this provision is confined to cases where the rate of wages is fixed by the output of the employé, and does not refer to cases where he received a fixed wage per day. [3] The next point is that there was error in the determination requiring the compensation to begin at the time of the death of the deceased, in view of the provision of section 13 of the act that compensation shall not begin until two weeks after the injury. This section is to be read in connection with section 14, which relates to the furnishing of medical attention and medicines, and in our judgment is confined to cases where death does not occur. In the present case the deceased was killed instantly, and so the provision of holding up the compensation for two weeks has, as we think, no application. [4] The third point is that there was error in providing that the weekly payments should be made on Saturday of each and every week commencing with the 11th day of December. We know of no provision in the statute which authorizes the court to require payments to be made upon a specific day of the week, but this question is comparatively unimportant. If it were made to appear that such a requirement gave inconvenience or trouble to the defendant in view of its system of making payments, an application to the trial court would no doubt dis these differences with care. In both the act of 1911 and in the amendment of 1913, para graph 12 begins thus: "In case of death compensation shall be com puted, but not distributed, on the following bas- They proceed respectively thus: "If orphan or orphans, (Amendment of 1913.) "For one dependent, 35 per cent. of wages. "For two dependents, 45 "If widow alone, 25 per per cent. of wages," and cent. clude any or all of the • Provided, sisters: * The facts in the Havey Case were that deceased was a minor, and so his father, the petitioner, was legally entitled to his wages and bound to furnish support; that there were several minor brothers and sisters, This court held that mostly of tender age. actual dependency was a question of fact, and in applying paragraph 12 of the act of 1911 relied the clause providing for "minor or incapacitated brothers and sisters." Koven v. Stanley, 84 N. J. Law, 447, on Errors went upon the ground, as we under- We also went on to say that there was evidence justifying the finding of that fact of the trial court, and that is also the situation in this case. [10] It is true that the father himself worked and made $26.40 a week, and the mother and sister also worked. That does not alter the situation that the earnings of the deceased went to the general support of the family, and that the amount he contributed, as found by the court (and the finding was supported by evidence), was more than his board and lodging and other expenses amounted to. The father testified that deceased gave all his money, every week to his mother, and that it was more than the cost of his keep, so that it was a legitimate inference that the family was deriving substantial benefit from the fact that he remain wages into the common fund. The other points made are covered by what has just been said. The facts in the present case are quite different, as well as the statute. Instead of specific percentages applied to specific groups of dependent relatives, we have percentages based on the varying number of actual dependents within the degrees of consanguin-ed living there and voluntarily gave all his ity or limits of affinity set out in the act. In the case at bar there is no question about the relationship, but only as to actual dependency. The clause of 1911 about minor brothers and sisters is gone, so the question of minority vel non of the sister of deceased, who was working as a stenographer, and as to whose age there seems to be no proof, is out of the case. There is a clause in the act of 1913 (P. L. pp. 302, 306) relating to (Supreme Court of Rhode Island. "orphans or other children," but this manifestly relates to children of the deceased and not to brothers or sisters. [8] As to the facts, we note that the deceased was over age, and therefore entitled to his own wages; that as a voluntary matter he turned his wages into the family fund; and there was evidence justifying a finding that the sister, whether an adult or a minor, received substantial benefit therefrom, of which she has been deprived since his death. This in turn justified a finding that she was an actual dependent. We do not understand the decision of the Court of Errors in the Havey Case to mean that a minor sister cannot be classed as a dependent of a deceased adult brother because she has a father who is under obligation to support her. Such a ruling would shut out the minor brothers and sisters in a case, for example, where the father was incapacitated and earned nothing, and the adult brother was the sole support of the family. [9] So also, if she was of age, her actual dependency is a pure question of fact, to be determined by the test laid down by the opinion of this court in the case of Hammill v. Penna. R. R. Co., 87 N. J. Law, 388, 94 Atl. 313, adopted in the Court of Errors and Appeals, 96 Atl. 292, viz.: "We understand the phrases 'actual dependent' and 'who are dependent upon the deceased,' as used in paragraph 12 of the act as amended, * to mean relatives in some degree mentioned in that paragraph, who were being wholly or to a substantial degree supported by the deceased at the time of his death." The judgment will be affirmed. (39 R. I. 272) COHEN et al. v. SUPERIOR COURT. (No. 257.) 1916.) June 8, 1. MOTIONS 19 REOPENING CASE-NOTICE. Cent. Dig. § 14; Dec. Dig. 19.] 2. EQUITY 428-DECREE-ENTRY-NOTICE. Nor in case of decision against such motion is the moving party entitled to notice of the entry of final decree in form previously drafted to moving party. and presented by prevailing party with notice [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 1015-1019; Dec. Dig. 428.] 3. EQUITY 430(3)—DECREE-OPENING OR VACATING-TIME LIMITED. perior court to set aside its decrees in equity on Under the statute, the power of the sumotion is limited to a period of six months after entry thereof. [Ed. Note. For other cases, see Equity, Cent. Dig. §§ 1042-1046; Dec. Dig. 430(3).] 4. EQUITY 429-AMENDMENT AUTHORI TY OF COURT. A final decree in an equity cause cannot be amended on motion or petition after the expiration of a year from the entry thereof. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 1020-1033; Dec. Dig. 429.] 5. CERTIORARI 29-GROUNDS - WANT OR EXCESS OF JURISDICTION. The primary office of a writ of certiorari is to review the action of an inferior tribunal taken without jurisdiction, or in excess of the jurisdiction given to it; and such writ ordinarily does not lie to correct error in the exercise of jurisdiction. [Ed. Note. For other cases, see Certiorari, Cent. Dig. § 42; Dec. Dig. 29.] The scope of certiorari has been somewhat extended by statute and decisions to carry out the revisory and appellate power conferred on the Supreme Court by the Constitution, but has never been extended to the consideration of alleged error for the correction of which other remedy is expressly provided. [Ed. Note. For other cases, see Certiorari, Cent. Dig. § 4; Dec. Dig. 4.] 7. TRIAL 377(2)-RECEPTION OF EVIDENCE -DISCRETION. After decision and before entry of final decree, reopening a case for further evidence is within the discretion of the justice presiding. [Ed. Note. For other cases, see Trial, Cent. Dig. § 889; Dec. Dig. 377(2).] 8. CERTIORARI 67 - REVIEW-DISCRETIONARY MATTERS. The discretion of the justice presiding as to reopening a case for further evidence after decision and before decree is not reviewable in certiorari. [Ed. Note.-For other cases, see Certiorari, Cent. Dig. § 179; Dec. Dig. 67.] 9. APPEAL AND ERROR 4-DECISIONS RE VIEWABLE-SUITS IN EQUITY. If a party in an equity cause is aggrieved by the final decree of the superior court, his remedy is by appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 8-21; Dec. Dig. 4.] 10. APPEAL AND ERROR 347(1)—TIME FOR TAKING APPEAL. After the statutory period has elapsed within which an appeal may be taken, the aggrieved party will not ordinarily be heard to say he was unaware of the entry of final decree; for, having been made a party to the suit it is his duty to attend to it through all its stages or suffer the consequences of his neglect. 6. CERTIORARI 4 Grounds-Error or IB- | of said record as is illegal may be quashed. REGULARITY. A writ of certiorari has issued, as prayed for, and said record has been certified to us. [1-6] It appears by said record that on May 19, 1914, said cause was heard by a justice of the superior court upon bill, answer, and proofs. At the conclusion of the hearing said justice decided all the issues in the cause in favor of the complainant therein, said Samuel Kessler. Thereafter, and before May 23, 1914, the solicitor for said Kessler presented for entry in said cause a form of final decree, drafted in accordance with the findings and decision of said justice. Of this the respondents in said cause, who are the petitioners now before us, had notice. On May 23, 1914, the solicitors for the respondents moved for leave to reopen the cause and to introduce further evidence. A hearing was had on this motion, and an affidavit in support thereof was filed by solicitors for the respondents. Thereafter, on July 10, 1914, said justice denied the motion, and on the same day the form of final decree previously presented by the complainant's solicitor was entered in the superior court by order of said justice. On October 1, 1915, more than 14 months after the entry of final decree, the respondents moved in the superior court "that the decree heretofore entered in said case be vacated or entered as of such date as counsel for respondents may have notice," and in the superior court on October 22, 1915, the respondents moved that said decree, entered on July 10, 1914, be revoked, cancelled, or annulled on the ground that the same was entered without notice to the respondents. On October 22, 1915, the respondents also moved in the same court that the record in said cause be amended in certain particulars, which appear to us to be entirely immaterial. Each of these three motions was denied by said justice of the superior court. The respondents in their petition for the writ of certiorari set forth certain alleged errors of said justice as follows: That said justice erred in not notifying the respondents or their counsel of the hearing on the motion to reopen said cause and of the hearing on the entry of final decree; that said justice erred in hearing said motion and entering said decree without notice to the respondents or their counsel, and in denying the motions of the respondents filed on October 1 and October 22, 1915. The petition for the writ of certiorari also alleges that it was the duty of the clerk of the superior court to notify the respondents or their counsel of the decision of said justice on the motion to reopen the case and of the entry of final decree. None of the acts of said justice complained of were erroneous, nor can such matters be reviewed by us upon a writ of certiorari. Said motion to reopen the cause and the entry of final decree in the circumstances of the case did not require a [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1897, 1899; Dec. Dig. 347(1).] 11. CERTIORARI 6-LOSS OF REMEDY BY APPEAL. Certiorari is not permitted as a substitute for an appeal lost, since Gen. Laws 1909, c. 297, § 3, provides that the Supreme Court, on petition filed within one year after entry of final decree, may allow appeal by an aggrieved party, who has failed to appeal "from accident, mistake, unforeseen cause or lack of evidence newly discovered;" nor will it be permitted after that time, following the statutory limitation of relief by review to one year. [Ed. Note. For other cases, see Certiorari, Cent. Dig. §§ 7-11; Dec. Dig. 6.] Bill by Samuel Kessler against Esther Cohen and others. Decree for complainant. Petition by Esther Cohen and others for a writ of certiorari. Writ dismissed, and record remitted. J. Jerome Hahn and Raymond P. McCanna, both of Providence (P. H. Mulholland, of Providence, of counsel), for petitioner. John P. Beagan, of Providence, for respondents. SWEETLAND, J. This is a petition for a writ of certiorari to be directed to the superior court, ordering said court to certify for our inspection its records relating to the cause in equity entitled Samuel Kessler v. Esther Cohen et al., to the end that so much sequences of his neglect. In some jurisdictions certiorari has been permitted as a substitute for an appeal lost, but to be granted that relief, the party aggrieved must clearly show that he has lost the opportunity to appeal through no neglect on his part. The writ, however, is not available for that purpose in our practice, as our statute (chapter 297, § 3, Gen. Laws 1909) provides that this court, on petition filed within one year after the entry of final decree, may allow an appeal to be taken and prosecuted by a party aggrieved who has failed to claim an appeal "from accident, mistake, unforeseen cause or lack of evidence newly discovered." Nor after one year from the entry of final decree can the writ of certiorari be permitted as a substitute for an appeal lost, for the period within which relief must be sought will be limited to one year after the entry of final decree as fixed in the statute. The writ of certiorari is dismissed. The record in the cause entitled Samuel Kessler v. Esther Cohen et al., sent to us by the superior court, is remitted to said court. formal hearing or notice to the respondents. I to it through all its stages or suffer the con Said justice had heard the cause and given his decision. Within the knowledge of the respondents a decree in accordance with said decision had been presented to said justice for entry. The respondents had filed their motion to reopen the cause, and had filed the affidavit of their solicitor wherein were fully set out the grounds of their motion to reopen. It then became the duty of the respondents without further notice to follow in the clerk's office the travel of the cause. If upon the entry of final decree they considered themselves aggrieved thereby they might take appellate proceedings to this court in accordance with the statute if they so desired. It was not the legal duty of the clerk to notify the respondents or their solicitors of the court's decision on the motion to reopen the case or of the entry of final decree. The respondent's motions to vacate the final decree were properly denied. In ac cordance with the provision of the statute, the power of the superior court to set aside its decrees in equity on motion is limited to a period of six months after the entry thereof. This court has held that a final decree in an equity cause cannot be amended on motion or petition after the expiration of a year from the entry of such decree. Fitch v. Richard, 18 R. I. 617, 29 Atl. 689. We have said that there was no error in the action of said justice, and that said petition did not set out the neglect of any legal duty on the part of the clerk of the superior court. We also hold that the matters complained of in the petition cannot be brought before us on certiorari. The primary office of a writ of certiorari is to review the action of an inferior tribunal, taken without jurisdiction or in excess of the jurisdiction given to it; and such writ ordinarily does not lie to cor-2. rect error in the exercise of jurisdiction. The office of the writ has been somewhat extended in this state by statute and by the decisions of this court for the purpose of carrying out the revisory and appellate power conferred on this court by the Constitution; but the scope of the writ has never been extended to the consideration of alleged error, for the correction of which other remedy is expressly provided. (39 R. I. 339) MILLER v. HEALEY et al. (No. 4942.) (Supreme Court of Rhode Island. June 15, 1916.) 721-CONCLUSIVENESS. 1. JUDGMENT [Ed. Note. For other cases, see Judgment, oral agreement for the sale of land, where the In an action to recover money paid on an defendants had at another trial publicly and upon the witness stand expressed their willingtender, they cannot now rely on any prior deness to perform the contract and had made a fault on the part of the plaintiff. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. § 168; Dec. Dig. 68(4).] 3. JUDGMENT 707-Matters Concluded. In an action to recover money paid by plaintiff on an oral agreement for the sale of land between her husband and defendants, where plaintiff was not a party to a former suit brought by the husband in the same contract, and did not testify as a witness therein, and the judgment for the husband did not include the amount paid by plaintiff, she is not estopped from prosecuting a suit. [7-11] After decision, and before the entry of final decree whether or not a case may be reopened and further evidence produced is a matter within the discretion of the justice presiding, and his action in that regard cannot be reviewed in certiorari. If a party in an equity cause is aggrieved by the final decree of the superior court his remedy is by 4. FRAUDS, STATUTE OF appeal. After the statutory period has elapsAGREEMENT FOR SALE OF LAND. ed within which an appeal may be taken the Where plaintiff's husband before their maraggrieved party will not ordinarily be heard riage made an oral agreement for the purchase to say that he was unaware of the entry of land from defendants, which when fully paid of the final decree; for, having been made husband has brought suit against these defendfor was to be conveyed to plaintiff, and the a party to the suit, it is his duty to attendants and recovered the money paid by him un Cent. Dig. § 1230; Dec. Dig. 707.] [1] On the 18th of August, 1913, Calvin B der the contract, compelling the defendants, practically, to refuse to convey to plaintiff, Miller brought suit against these defendants plaintiff may recover the sum paid by her under the oral agreement, since an oral contract for the sale of land is not utterly void under the statute of frauds, and the person who advances money on such contract may recover it back, if the other party is unable or unwilling to perform. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 328; Dec. Dig. 138(2).] Exceptions from Superior Court, Providence and Bristol Counties; John W. Sweeney, Judge. Action by Hattie Miller against John S. Healey and others. To the direction of a verdict for the defendants, and refusal to direct a verdict for plaintiff, plaintiff excepts. Exceptions sustained in part and denied in part. to recover the sum of $147.50, alleging that the defendants had broken their contract with him regarding the sale of these lots, and therefore he was entitled to recover back all the money advanced to the defendants, including $75 paid by Staff, $25 paid by the plaintiff, and $47.50 paid by himself. Upon a trial of this suit of Calvin B. Miller in the superior court the jury returned a verdict for the plaintiff in the sum of $47.50, that being the amount which he had advanced toward the purchase price of the lots, and the only amount for which he produced a receipt. There was no motion for a new trial, and no bill of exceptions; the judgment became final, and execution was issued and returned fully satisfied. All questions between Charles H. McKenna, of Providence, for Calvin B. Miller and these defendants, so plaintiff. Cooney & Cahill, of Providence | far as they concern the recovery of money (John J. A. Cooney, of Providence, of counsel), for defendants. advanced by him on account of these lots, appear to have been disposed of and are res adjudicata. It now remains, however, for us to consider whether or not the plaintiff in the case at bar is entitled to recover the sum of $25 which she paid personally and for which she holds a receipt. if the other party is unable or unwilling to perform the contract on his part. Coughlin v. Knowles, 7 Metc. (Mass.) 57, 39 Am. Dec. 759, and cases cited; Day v. Wilson, 83 Ind. 463, 43 Am. Rep. 76; Plummer v. Bucknam, 55 Me. 105. The testimony shows that the plaintiff at one time, being asked by the defendant Ellen Healey to pay the balance of $2.50 and take a deed of the lot, very forci VINCENT, J. This is an action of assumpsit brought in the district court of the Fifth judicial district to recover the sum of $72.50, which the plaintiff alleges is a balance due to her from the defendants; she [2] The defendants claim that the plainhaving paid that amount to the defendants tiff cannot recover, because her suit is based upon an oral agreement for the sale of a upon an oral contract for the sale of land, certain lot of land situated in Warren, R. I. and that she was in default, while they were The plaintiff claimed a jury trial on the en- ready and willing and offered to perform try day of the writ in the district court. At their part of the contract. This is not an the trial in the superior court a verdict was action to enforce an oral contract for the sale directed for the defendants, and the case is of land, to compel a conveyance thereof, or now before us on the plaintiff's exceptions. to recover damages for the failure of the deThese exceptions are to the direction of a fendants to perform their contract. An oral verdict for the defendants, and the refusal contract is not utterly void by the statute to direct a verdict for the plaintiff for $72.50. of frauds, and the person who advances monIt appears from the testimony that one Cal-ey on such a contract may recover it back, vin B. Miller, now the husband of the plaintiff, entered into an oral agreement with the defendants whereby the latter became obligated to sell to Miller two lots of land for the sum of $150, payable in weekly installments of $25, the title to remain in the defendants until the entire sum should be paid, when a deed of one lot should be executed and delivered to one Frank Staff, and a deed of the other lot to Hattie Collins, now Hat-bly expressed herself, declaring that she tie Miller, the plaintiff, they being the nominees of the said Calvin Miller. Later Calvin Miller sent $75 to the defendants through Staff, which seems to have been understood by the parties as payment for one of the lots, and subsequently one lot was accordingly conveyed to Staff by the defendants. The plaintiff also sent to the defendants the sum of $25 as a payment upon the second lot, and was given a receipt therefor. This receipt was the only one produced at the trial, although there was testimony that Calvin B. Miller sent to the defendants $47.50 more. The whole amount thus received by the defendants on account of both lots was $147.50, leaving a balance due of $2.50 to would have nothing further to do with the matter. Taken by itself, this avowal on the part of the plaintiff might be sufficient to defeat her right of action; but later, during the trial of the case of Calvin B. Miller against the defendants, they publicly, upon the witness stand, expressed their willingness to accept from the plaintiff the sum of $2.50 and deliver to her a deed of the lot, and the following day the plaintiff tendered said sum to the defendant Ellen Healey and demanded the deed of the lot, which was refused. We think that under these conditions the defendants cannot now rely upon any prior default on the part of the plaintiff. The willingness of the defendants to accept the |
