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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! [5] The fourth point raises the question to review a judgment of the court of common whether the action was properly brought by pleas for plaintiff. Judgment affirmed. the administrator of the deceased. As to

Argued February term, 1916, before PARK- this counsel relies on section 19 of the act, ER, MINTURN, and KALISCH, JJ.

which provides that, where no executor or Leonard J. Tynan, of Newark, for prosecu

administrator is qualified, the judge shall tor. Charles M. Egan, of Jersey City, for by order direct payment to be made to such petitioner.

person as would be appointed administrator

of the estate of such deceased, etc. This PARKER, J. This is a workman's com- 1!

provision of the act plainly contemplates the pensation case. The suit is brought for

institution of the proceeding by the executor the benefit of the father, mother, and sister

or administrator of the deceased, where of the deceased, all of whom claim to be de

there is an executor or administrator, and, pendents.

if there is none, by such person as would be [1, 2] The first point made is that the

entitled to administration. There is an adcourt had no evidence before it to justify

ministrator in the present case, and plainly a finding that the wages of the deceased

the suit was properly brought by him. See were $11.94 a week. There was such evidence

McFarland v. Central R. R. Co., 84 N. J. Law, in the shape of a letter written by an au

435, 87 Atl. 144. thorized agent of the defendant company

[6, 7] The next point raises the question stating that fact. In addition to this, it ap

whether the father and mother and sister peared that the deceased had been taken on

of the deceased were actual dependents in in one department at $1.75 a day, and work

the sense intended by the statute. The trial

court held that they were actual dependents, ed for six days a week in that department, and that he was afterwards transferred to

relying on the case of Havey v. Erie R. R.

Co., 87 N. J. Law, 444, 95 Atl. 124, decided another department where he worked seven days a week at the same rate of $1.75, or

by this court. That case was governed by $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 ute with relation to weekly wages being

and Appeals (96 Atl. 995), and differs on the taken to be six times the average daily earn

facts. It is necessary, therefore, to examine ings for a working day of ordinary length,

these differences with care. In both the act excluding overtime; but this provision is

of 1911 and in the amendment of 1913, paraconfined to cases where the rate of wages

graph 12 begins thus: is fixed by the output of the employé, and

"In case of death compensation shall be com

puted, but not distributed, on the following basdoes not refer to cases where he received a

is: (1) Actual dependents." fixed wage per day. [3] The next point is that there was error

They proceed respectively thus: in the determination requiring the compen

(Act of 1911.)

(Amendment of 1913.) sation to begin at the time of the death of

"Il orphan or orphans, “For one dependent, 35

a minimum of 25 per per cent. of wages. the deceased, in view of the provision of sec

cent. . . .

"For two dependents, 45 tion 13 of the act that compensation shall "If widow alone, 25 per per cent. of wages," and not begin until two weeks after the injury. | cent.


“It widow and one "The term 'dependents' This section is to be read in connection with

child, 40 per cent.," and shall apply to and insection 14, which relates to the furnishing so on.

clude any or all of the of medical attention and medicines, and in

following who are deour judgment is confined to cases where

pendent upon the deceas

ed at the time of his death does not occur. In the present case the

death, namely: . . . deceased was killed instantly, and so the pro

Parents . . . sisters: vision of holding up the compensation for

. . . Provided. . . .

that dependency shall be two weeks has, as we think, no application.

presumed as to . . . [4] The third point is that there was er

children under the age of ror in providing that the weekly payments

18 years. . . ." should be made on Saturday of each and The facts in the Havey Case were that deevery week commencing with the 11th day I ceased was a minor, and so his father, the of December. We know of no provision in petitioner, was legally entitled to his wages the statute which authorizes the court to re- and bound to furnish support; that there quire payments to be made upon a specific were several minor brothers and sisters, day of the week, but this question is com mostly of tender age. This court held that paratively unimportant. If it were made to actual dependency was a question of fact, appear that such a requirement gave incon- and in applying paragraph 12 of the act of venience or trouble to the defendant in view 1911 relied on the clause providing for of its system of making payments, an appli- | “minor or incapacitated brothers and siscation to the trial court would no doubt dis-ters." Koven v. Stanley, 84 N. J. Law, 447, Errors went upon the ground, as we under-1 We also went on to say that there was stand it, that the brothers and sisters were evidence justifying the finding of that fact not legally dependent on deceased, because of the trial court, and that is also the sithe was under no obligation to support them, uation in this case. and were not dependent on him in fact, bel [10] It is true that the father himself cause they were dependent upon the father, worked and made $26.40 a week, and the who was entitled to use the wages of de- mother and sister also worked. That does ceased to support them, so that the direct not alter the situation that the earnings of dependency was upon the father. “'Benefit the deceased went to the general support of and 'dependence,'" said the court, "are not the family, and that the amount he consynonymous words," by which we understand tributed, as found by the court (and the that benefit does not necessarily imply de- tinding was supported by evidence), was more pendency, though it may be said to be an than his board and lodging and other esessential element of it.

penses amounted to. The father testified The facts in the present case are quite that deceased gave all his money, every week different, as well as the statute. Instead of to his mother, and that it was more than the specific percentages applied to specific groups cost of his keep, so that it was a legitimate of dependent relatives, we have percentages inference that the family was deriving subbased on the varying number of actual de- stantial benefit from the fact that he remainpendents within the degrees of consanguin- ed living there and voluntarily gave all his ity or limits of affinity set out in the act. wages into the common fund. In the case at bar there is no question about The other points made are covered by what the relationship, but only as to actual de has just been said. pendency. The clause of 1911 about minor The judgment will be affirmed. brothers and sisters is gone, so the question of minority vel non of the sister of deceased,

(39 R. I. 272) who was working as a stenographer, and as

COHEN et al. v. SUPERIOR COURT. to whose age there seems to be no proof,

(No. 257.) 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. June & "orphans or other children," but this mani

1916.) festly relates to children of the deceased and 1. Motions 19_REOPENING CASE-NOTICE. not to brothers or sisters.

After hearing and decision, and before final [8] As to the facts, we note that the de decree, a motion by the defeated party for leave

to reopen the case and introduce further eviceased was over age, and therefore entitled

dence does not require a formal hearing, or now to his own wages; that as a voluntary mat- tice to the moving party of such hearing or of ter he turned his wages into the family decision thereon. fund; and there was evidence justifying a

(Ed. Note. For other cases, see Motions,

Cent. Dig. 14; Dec. Dig. 19.) finding that the sister, whether an adult or

2. EQUITY 428-DECREE-ENTRY_NOTICE. a minor, rereived substantial benefit there

Nor in case of decision against such mo from, of which she has been deprived since | tion is the moving party entitled to notice of the his death. This in turn justified a finding

entry of final decree in form previously drafted

and presented by prevailing party with notice that she was an actual dependent. We do

to moving party. not understand the decision of the Court (Ed. Note.-For other cases, see Equity, Cent. of Errors in the Havey Case to mean that a Dig. $$ 1015–1019; Dec. Dig. 428.] minor sister cannot be classed as a depend- 3. EQUITY Cm 430(3)-DECREE - OPENING OR ent of a deceased adult brother because she VACATING--TIME LIMITED. has a father who is under obligation to sup

Under the statute, the power of the su

upe perior court to set aside its decrees in equity on port her. Such a ruling would shut out the motion is limited to a period of six months after minor brothers and sisters in a case, for entry thereof. example, where the father was incapacitated [Ed. Note.-For other cases, see Equity, Cent. and earned nothing, and the adult brother

| Dig. $$ 1012–1046; Dec. Dig. 430(3).] was the sole support of the family.


TY OF COURT. [9] So also, if she was of age, her actual | A final decree in an equity cause cannot be dependency is a pure question of fact, to be amended on motion or petition after the expiradetermined by the test laid down by the opin- tion of a year from the entry thereof. ion of this court in the case of Hammill v. [Ed. Note.-For other cases, see Equity, Cent Penna. R. R. Co., 87 N. J. Law, 388, 94 Atl.

Dig. $8 1020-1033; Dec. Dig. 429.) 313, adopted in the Court of Errors and Ap


EXCESS OF JURISDICTION. peals, 96 Atl. 292, viz.:

The primary office of a writ of certiorari “We understand the phrases .actual dependent is to review the action of an inferior tribunal and 'who are dependent upon the deceased.' as taken without jurisdiction, or in excess of the used in paragraph 12 of the act as amended. jurisdiction given to it; and such writ ordiHe to mean relatives in some degree men

narily does not lie to correct error in the exertioned in that paragraph, who were being wholly cise of jurisdiction. or to a substantial degree supported by the de- (Ed. Note.--For other cases, see Certiorari, ceased at the time of his death."

Cent. Dig. $ 42; Dec. Dig. Om 29.]

6. CERTIORARI 4 GROUNDS-ERBOR OR IB- , of said record as is illegal may be quashed. BEGULARITY.

A writ of certiorari has issued, as prayed The scope of certiorari has been somewhat extended by statute and decisions to carry out

for, and said record has been certified to us. the revisory and appellate power conferred on [1-6] It appears by said record that on the Supreme Court by the Constitution, but has May 19, 1914, said cause was heard by a jus. never been extended to the consideration of al- tice of the

tice of the superior court upon bill, answer, leged error for the correction of which other remedy is expressly provided.

and proofs. At the conclusion of the hearing (Ed. Note. For other cases, see Certiorari, said justice decided all the issues in the Cent. Dig. § 4; Dec. Dig. On4.]

cause in favor of the complainant therein, 7. TRIAL 377(2)-RECEPTION OF EVIDENCE said Samuel Kessler. Thereafter, and be-DISCRETION.

fore May 23, 1914, the solicitor for said After decision and before entry of final de

Kessler presented for entry in said cause a cree, reopening a case for further evidence is within the discretion of the justice presiding.

form of final decree, drafted in accordance [Ed. Note. For other cases, see Trial, Cent. with the findings and decision of said justice. Dig. S 889; Dec. Dig. 377(2).]

of this the respondents in said cause, who 8. CERTIORARI m 67 - REVIEW-DISCRETION are the petitioners now before us, had no ABY MATTERS.

tice. On May 23, 1914, the solicitors for the The discretion of the justice presiding as to reopening a case for further evidence after

respondents moved for leave to reopen the decision and before decree is not reviewable in cause and to introduce further evidence. A certiorari.

hearing was had on this motion, and an af(Ed. Note. For other cases, see Certiorari,

fidavit in support thereof was filed by soCent. Dig. 8 179; Dec. Dig, om 67.]

licitors for the respondents. Thereafter, on 9. APPEAL AND ERROR 4DECISIONS RE

July 10, 1914, said justice denied the motion, VIEWABLE-SUITS IN EQUITY. If a party in an equity cause is aggrieved

and on the same day the form of final deby the final decree of the superior court, bis cree previously presented by the complainremedy is by appeal,

ant's solicitor was entered in the superior (Ed. Note. For other cases, see Appeal and

court by order of said justice. On October Error, Cent. Dig. 88 8-21; Dec. Dig. Om4.)

1, 1915, more than 14 months after the entry 10. APPEAL AND ERROR 347(1)-TIME FOR

of final decree, the respondents moved in the TAKING' APPEAL.

After the statutory period has elapsed with superior court "that the decree heretofore in which an appeal may be taken, the aggrieved entered in said case be vacated or entered as party will not ordinarily be heard to say he was

of such date as counsel for respondents may unaware of the entry of final decree; for, haying been made a party to the suit it is his duty

have notice," and in the superior court on to attend to it through all its stages or suffer October 22, 1915, the respondents moved that the consequences of his neglect.

said decree, entered on July 10, 1914, be re(Ed. Note. For other cases, see Appeal and

voked, cancelled, or annulled on the ground Error, Cent. Dig. 88 1897. 1899; Dec. Dig. Om 347(1).]

that the same was entered without notice to 11. CERTIORARI CbLoss OF REMEDY BY

the respondents. On October 22, 1915, the APPEAL.

respondents also moved in the same court Certiorari is not permitted as a substitute that the record in said cause be amended in for an appeal lost, since Gen. Laws 1909, C. certain particulars, which appear to us to 297, § 3, provides that the Supreme Court, on petition filed within one year after entry of

be entirely immaterial. Each of these three final decree, may allow appeal by an aggrieved motions was denied by said justice of the party, who has failed to appeal "from accident, superior court. The respondents in their pemistake, unforeseen cause or lack of evidence

tition for the writ of certiorari set forth newly discovered;" nor will it be permitted after that time, following the statutory limita

certain alleged errors of said justice as foltion of relief by review to one year.

lows: That said justice erred in not notify. [Ed. Note. For other cases, see Certiorari, ing the respondents or their counsel of the Cent. Dig. 88 7–11; Dec. Dig. Om6.)

hearing on the motion to reopen said cause Bill by Samuel Kessler against Esther and of the hearing on the entry of final de Cohen and others. Decree for complainant. cree; that said justice erred in bearing said Petition by Esther Cohen and others for a motion and entering said decree without nowrit of certiorari. Writ dismissed, and rec- tice to the respondents or their counsel, and ord remitted.

in denying the motions of the respondents J. Jerome Hahn and Raymond P. McCan.

filed on October 1 and October 22, 1915. The na, both of Providence (P. H. Mulholland,

P Mulholland petition for the writ of certiorari also alof Providence, of counsel), for petitioner. leges that it was the duty of the clerk of the John P. Beagan, of Providence, for respond superior court to notify the respondents or ents.

their counsel of the decision of said justice

on the motion to reopen the case and of the SWEETLAND, J. This is a petition for entry of final decree. None of the acts of a writ of certiorari to be directed to the su said justice complained of were erroneous, perior court, ordering said court to certify nor can such matters be reviewed by us upon for our inspection its records relating to the a writ of certiorari. Said motion to reopen cause in equity entitled Samuel Kessler v. the cause and the entry of final decree in the Esther Cohen et al., to the end that so much circumstances of the case did not require a

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 sequences of his neglect. In some jurisdichis decision. Within the knowledge of the tions certiorari has been permitted as a subrespondents a decree in accordance with said stitute for an appeal lost, but to be granted decision had been presented to said justice that relief, the party aggrieved must clearly for entry. The respondents had filed their show that he has lost the opportunity to motion to reopen the cause, and had filed appeal through no neglect on his part. The the affidavit of their solicitor wherein were writ, however, is not available for that purfully set out the grounds of their motion to pose in our practice, as our statute (chapter reopen. It then became the duty of the re- | 297, § 3, Gen. Laws 1909) provides that this spondents without further notice to follow in court, on petition filed within one year after the clerk's office the travel of the cause. If | the entry of final decree, may allow an apupon the entry of final decree they consider- peal to be taken and prosecuted by a party ed themselves aggrieved thereby they might aggrieved who has failed to claim an aptake appellate proceedings to this court in peal "from accident, mistake, unforeseen accordance with the statute if they so de- cause or lack of evidence newly discovered." sired. It was not the legal duty of the clerk | | Nor after one year from the entry of final de to notify the respondents or their solicitors cree can the writ of certiorari be permitted of the court's decision on the motion to re- as a substitute for an appeal lost, for the open the case or of the entry of final de period within which relief must be sought cree. The respondent's motions to vacate the will be limited to one year after the entry of final decree were properly denied. In ac- final decree as fixed in the statute. cordance with the provision of the statute, The writ of certiorari is dismissed. The the power of the superior court to set aside record in the cause entitled Samuel Kessler its decrees in equity on motion is limited to v. Esther Cohen et al., sent to us by the sua period of six months after the entry there- perior court, is remitted to said court. of This court has held that a final decree in an equity cause cannot be amended on

(39 R. I. 339) motion or petition after the expiration of a year from the entry of such decree. Fitch |

MILLER v. HEALEY et al. (No. 4942.) v. Richard, 18 R. I. 617, 29 Atl. 689. Wel (Supreme Court of Rhode Island. June 15. have said that there was no error in the

1916.) action of said justice, and that said petition 1. JUDGMENT Om721-CONCLUSIVENESS. did not set out the neglect of any legal duty

In an action to recover money paid by plain. .

tiff on an oral agreement between her husband on the part of the clerk of the superior court.

and defendants for the sale of land, judginent We also hold that the matters complained of in a former suit on the same contract between in the petition cannot be brought before us on the husband and the defendants is res judicata certiorari. The primary office of a writ of

of as to all questions between the husband and the

defendants, so far as they concern the recovery certiorari is to review the action of an in- of money advanced by him. ferior tribunal, taken without jurisdiction (Ed. Note.--For other cases, see Judgment, or in excess of the jurisdiction given to it; Cent. Dig. 88 1238, 1252; Dec. Dig. Om 121.) and such writ ordinarily does not lie to cor- 2. ESTOPPEL 68(4)–POSITION IN JUDICIAL rect error in the exercise of jurisdiction. I PROCEEDINGS. The office of the writ has been somewhat

In an action to recover money paid on an

oral agreement for the sale of land, where the extended in this state by statute and by the defendants had at another trial publicly and decisions of this court for the purpose of upon the witness stand expressed their willing. carrying out the revisory and appellate power

ness to perform the contract and had made a

tender, they cannot now rely on any prior deconferred on this court by the Constitution; fault on the part of the plaintiff. but the scope of the writ has never been ex- (Ed. Note. For other cases, see Estoppel, tended to the consideration of alleged error, Cent. Dig. § 168; Dec. Dig. 68(4).] for the correction of which other remedy is 3. JUDGMENT 707–MATTERS CONCLUDED. expressly provided.

In an action to recover money paid by plain

tiff on an oral agreement for the sale of land (7-11) After decision, and before the entry between her husband and defendants, where of final decree whether or not a case may plaintiff was not a party to a former suit be reopened and further evidence produced

brought by the husband in the same contract,

and did not testify as a witness therein, and is a matter within the discretion of the jus- | the judgment for the husband did not include tice presiding, and his action in that regard the amount paid by plaintiff, she is not estopped cannot be reviewed in certiorari. If a party

from prosecuting a suit. in an equity cause is aggrieved by the final

[Ed. Note. For other cases, see Judgment,

Cent. Dig. $ 1230; Dec. Dig. 707.] decree of the superior court his remedy is by

4. FRAUDS, STATUTE OF 138(2) – ORAL appeal. After the statutory period has elaps- |

AGREEMENT FOR SALE OF LAND, ed within which an appeal may be taken the Where plaintiff's husband before their mar. aggrieved 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

for was to be conveyed to plaintiff, and the of the final decree; for, having been made

husband has brought suit against these defenda party to the suit, it is his duty to attendants and recovered the money paid by him un

der the contract, compelling the defendants, [1] On the 18th of August, 1913, Calvin B practically, to refuse to convey to plaintiff, Miller brought suit against these defendants plaintiff may recover the sum paid by her un

to recover the sum of $147.50, alleging that der the oral agreement, since an oral contract for the sale of land is not utterly void under

the defendants had broken their contract the statute of frauds, and the person who ad with him regarding the sale of these lots, vances money on such contract may recover it

and therefore he was entitled to recover back back, if the other party is unable or unwilling

all the money advanced to the defendants, to perform,

[Ed. Note. For other cases, see Frauds, Stat including $75 paid by Staff, $25 paid by the ute of, Cent. Dig. $ 328; Dec. Dig. 138(2).) plaintiff, and $47.50 paid by himself. Upon

a trial of this suit of Calvin B. Miller in the Exceptions from Superior Court, Provi

superior court the jury returned a verdict dence and Bristol Counties; John W. Swee

for the plaintiff in the sum of $47.50, that ney, Judge.

being the amount which he had advanced to Action by Hattie Miller against John S.

ward the purchase price of the lots, and the Healey and others. To the direction of a

only amount for which he produced a reverdict for the defendants, and refusal to

ceipt. There was no motion for a new trial, direct a verdict for plaintiff, plaintiff ex.

and no bill of exceptions; the judgment be. cepts. Exceptions sustained in part and de

came final, and execution was issued and renied in part.

turned 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 coun advanced by him on account of these lots, sel), for defendants.

appear to have been disposed of and are res

adjudicata. It now remains, however, for VINCENT, J. This is an action of as- us to consider whether or not the plaintiff in sumpsit brought in the district court of the the case at bar is entitled to recover the sum Fifth judicial district to recover the sum of of $25 which she paid personally and for $72.50, which the plaintiff alleges is a bal- which she holds a receipt. ance due to her from the defendants; she [2] The defendants claim that the plainhaving paid that amount to the defendantstiff 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 mon

It appears from the testimony that one Cal- ey on such a contract may recover it back, vin B. Miller, now the husband of the plain- if the other party is unable or unwilling to tiff, entered into an oral agreement with the perform the contract on his part. Coughlin defendants whereby the latter became obli- v. Knowles, 7 Metc. (Mass.) 57, 39 Am. Dec. gated to sell to Miller two lots of land for 759, and cases cited; Day v. Wilson, 83 Ind. the sum of $150, payable in weekly install- 463, 43 Am. Rep. 76; Plummer v. Bucknam, ments of $25, the title to remain in the de- 55 Me. 105. The testimony shows that the fendants until the entire sum should be paid, plaintiff at one time, being asked by the dewhen a deed of one lot should be executed fendant Ellen Healey to pay the balance of and delivered to one Frank Staff, and a deed $2.50 and take a deed of the lot, very forciof the other lot to Hattie Collins, now Hat- bly expressed herself, declaring that she tie Miller, the plaintiff, they being the nom- would have nothing further to do with the inees of the said Calvin Miller. Later Cal- matter. Taken by itself, this avowal on the vin Miller sent $75 to the defendants through part of the plaintiff might be sufficient to deStaff, which seems to have been understood feat her right of action; but later, during by the parties as payment for one of the the trial of the case of Calvin B. Miller lots, and subsequently one lot was accord-against the defendants, they publicly, upon ingly conveyed to Staff by the defendants. the witness stand, expressed their willingness The plaintiff also sent to the defendants the to accept from the plaintiff the sum of $2.50 sum of $25 as a payment upon the second and deliver to her a deed of the lot, and the lot, and was given a receipt therefor. This following day the plaintiff tendered said sum receipt was the only one produced at the to the defendant Ellen Healey and demanded trial, although there was testimony that Cal- the deed of the lot, which was refused. vin B. Miller sent to the defendants $17.50 We think that under these conditions the more. The whole amount thus received by defendants cannot now rely upon any prior the defendants on account of both lots was default on the part of the plaintiff. The $147.50, leaving a balance due of $2.50 to willingness of the defendants to accept the

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