Opinion
M. P. No. 74-184.
September 25, 1974
Petition of Donald Johnson for writ of certiorari is granted, and the writ may issue forthwith.
Oster, Espo, Fay Groff, Thomas F. Fay, for plaintiff-respondent.
Gordon C. Mulligan, for Donald Johnson, defendant-petitioner.
Entered as the order of this court this 25th day of September, 1974.
BY ORDER,
BRIAN B. BURNS Deputy Clerk
WALTER J. KANE Clerk
ENTER:
THOMAS H. ROBERTS Chief Justice
September 25, 1974
On February 25, 1974, Donald Johnson's motion to vacate a default judgment entered against him in the District Court was denied by a justice of that court. Although that denial possessed all the attributes of finality and was therefore appealable, 1 Kent, R.I. Civ. Prac. § 60.10 at 457 (1969), Johnson did not appeal to the Superior Court which has jurisdiction to review District Court judgments on questions of law and fact. G.L. 1956 (1969 Reenactment) § 9-12-10, as amended by P.L. 1969, ch. 239, sec. 9. Instead, he petitioned this court for certiorari. On April 19, 1974, that petition was denied without prejudice. Murphy v. Charlie's Home Improvement Co. et al v. Johnson, 113 R.I. 909, 318 A.2d 479 (1974). Now Johnson has filed a second petition for certiorari which in all essential particulars is identical to his first. This time, however, a majority of the court has ordered the writ to issue.
I would deny the petition both because consistency with our prior action suggests that result, and because in oases such as this, where unusual hardship or exceptional circumstances are not alleged, this court has traditionally and properly refused to review by certiorari a controversy where direct appeal is available. Barletta v. Kilvert, 111 R.I. 485, 487, 304 A.2d 353, 354-55 (1973); Johnson v. Johnson, 111 R.I. 46, 49, 298 A.2d 795, 797 (1973); Burrillville School Committee v. Burrillville Teachers' Ass'n, 110 R.I. 677, 678, 296 A.2d 464, 466 (1972).