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law, but performed the substantial duty of appointing a guardian and fixing his responsibility.

The petitioner, by his misfortune, had become unable to care for and manage his property. The court appointed and installed a custodian, under substantial bonds, to act under legal restraint and responsible to legal authority. The appointee is held to strict accountability for his management of the property intrusted to him. We are unable to consider the proceeding as otherwise than beneficial to the petitioner. That his estate should have been cared for during his disability is an advantage rather than a damage to him, and to set aside the appointment because a person had not been appointed to represent him in the proceedings would be to exalt the letter of the law at the expense of substantial right. If the facts stated in the petition are true, the guardian ad litem, if appointed, must have advised and consented to the decree.

The petition is therefore denied and dismissed.

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Certiorari, Discretion to Refuse.The Writ of Certiorari issues only when the court under review has exceeded its jurisdiction. It is not a writ of right, but may be granted or denied in the discretion of the court according to the showing made in any particular case: Tinn v. United States District Attorney, 148 Cal. 773, 113 Am. St. Rep. 354; Deslauries v. Soucie, 222 Ill. 522, 113 Am. St. Rep. 432; State v. Witcher, 117 Wis. 668, 98 Am. St. Rep. 968. As to what questions are reviewable upon certiorari, see the note to Wulzen v. Board of Supervisors, 40 Am. St. Rep. 29; and as to what persons are entitled to prosecute the writ, see the note to Elliott v. Superior Court, 103 Am. St. Rep. 110. The writ of certiorari to review the appointment of a guardian for an incompetent person will be refused where no harm has come to the incompetent from such appointment, and he has permitted the decree to stand unquestioned for over eight years and until after the death of the guardian: Brown v. Probate Court of Warwick, 28 R. I. 370, post, p. 747.

BROWN V. PROBATE COURT OF WARWICK.

[28 R. I. 370, 67 Atl. 527.] CERTIORARI.-The Action of a Probate Court may be reviewed on certiorari. (p. 748.)

CERTIORARI—Whether a Matter of Right.—The issuance of the writ of certiorari is not a matter of strict right, but is discretionary with the court. (p. 748.)

CERTIORARI.One Who has been Guilty of Laches will generally be refused a writ of certiorari. (p. 748.)

CERTIORARI—Review of Guardianship Proceedings.—The writ of certiorari to review the appointment of a guardian for an incompetent person will be refused where no harm has come to the incompetent from such appointment, and he has permitted the deeree to stand unquestioned for over eight years and until after the death of the guardian. (p. 749.)

P. Quinn, for the petitioner.
Archibald C. Matteson, for Centreville Savings Bank.

370 PER CURIAM. This is a petition for a writ of certiorari to the probate court of Warwick, alleging that a decree of that court, entered on the twelfth day of September, 1898, appointing Job S. Carpenter, of said Warwick, guardian of the person and estate of the petitioner, a person of full age, residing in said Warwick, was erroneous, and ought to be quashed upon the ground that, upon the facts found by said probate court, it had no jurisdiction to appoint a guardian as aforesaid. The petition for the appointment of said guardian alleged said Peleg Brown to be a person of full age who, from excessive drinking, gaming, 371 idleness and debauchery, who from want of discretion in managing his estate, is likely to bring himself or family to want and to render himself or family chargeable. The lack of jurisdiction upon which the petitioner bases his objection is that the probate court only adjudged him “to be a person lacking in discretion in managing his estate."

The court of probate had jurisdiction over the person of the petitioner, and of the subject matter of the proceeding, i. e., the appointment of a guardian. Having such jurisdiction, its decree is not void, but merely voidable. By the provisions of the statute in force at the time of the entry of the decree (caption 248, section 7, General Laws), the decree could not in any collateral proceeding be deemed invalid, or quashed for want of proper form, or for want of jurisdiction appearing upon its face. Section 803 of the court and practice act is to the same effect.

It is settled in this state that certiorari lies to review the action of a probate court: Pratt v. Court of Probate of Pawtucket, 22 R. I. 596, 48 Atl. 943; Bennett v. Randall, 28 R. I. 360. Where the matter is not regulated by special statutes it is, however, well settled that the issue of the writ is not a matter of strict right, but is discretionary with the court: Bennett v. Randall, 28 R. I. 360.

Where the petitioner has been guilty of laches, the writ is generally refused: In re Lantis, 9 Mich. 324, 80 Am. Dec. 58;

State v. Blake, 35 N. J. L. 208; People v. Fire Commrs., 77 N. Y. 605; People v. Board of Police Commissioners, 82 N. Y. 506; Long v. Ohio River R. R. Co., 35 W. Va. 333, 13 S. E. 1010.

In the case at bar it does not appear that any harm has come to the petitioner from the appointment of the guardian. Furthermore, he has permitted the decree to stand without attack for more than eight years and a half. Although excessive drinking was one of the grounds alleged in the petition for the appointment of the guardian, he has, according to his affidavit, been a total abstainer for some years, and So, presumably, under no disability on that account. He has permitted the guardian, without objection, to mortgage his property pursuant to other decrees of said probate court, and to apply the proceeds of said mortgages to his support, and has only moved in the matter 372 after the death of the guardian. Such conduct constitutes sufficient laches to justify the refusal of the writ.

The petition is denied and dismissed.

On the Proper Scope of Certiorari, see Bennett v. Randall, 28 R. I. 360, and authorities cited in the cross-reference note thereto. Certiorari will not issue to review the proceedings of a probate court appointing a general guardian for an insane person, on the ground that there was no prior appointment of a guardian ad litem, where the guardianship has been an advantage rather than a detriment to the incompetent: Bennett v. Randall, 28 R. I. 360, ante, p. 743.

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H. F. WATSON COMPANY V. CITIZENS' CONCRETE

COMPANY.

[28 R. I. 472, 68 Atl. 310.] JUDGMENT — Conclusiveness of Former Adjudication. -- A judgment on the merits is a bar to a subsequent action between the same parties upon an identical cause of action, and the court will not consider in the latter action an allegation that the verdict was directed in the former action on grounds not affecting the merits. (p. 751.)

JUDGMENT—Conclusiveness of Adjudication. The judgment of a court having jurisdiction of the subject matter and of the person, though erroneous, is conclusive upon the parties until set aside in a direct proceeding instituted for that purpose. (p. 751.)

William M. P. Bowen, for the plaintiff.

Bassett & Raymond and Russell W. Richmond, for the defendant.

472 BLODGETT, J. On August 15, 1904, the plaintiff commenced this action of assumpsit for the recovery of the value of certain goods alleged to have been sold to the defendant, “Daniel F. Grady, doing business as the Citizens' Concrete Co.," and has recovered a verdict in his favor, and the cause is now before the court on the defendant's exceptions.

The defendant's second plea in bar to this action is that in a 473 prior action between the same parties, commenced Feb. ruary 23, 1904, in the same court and for the same subject matter, "the jury rendered a verdict for the defendant in said cause, and thereupon the said defendant, by consideration of the same court did recover judgment against the plaintiff and its costs of suit, as by record thereof now remaining in said court more fully appears," etc. To this plea the plaintiff's replication, after setting forth the direction of a verdict for the defendant by the court upon a ground therein specified, avers “that said verdict in said former action in said plea mentioned was not directed upon the merits of said action and said judgment was not rendered upon the merits of said action”; and further avers “that the issue in said former case was and is not identical with the issue in this said present action."

An examination of the pleadings and record in the action commenced February 23, 1904, discloses that with other pleas the defendant pleaded the general issue to the declaration, and it is conceded that the parties thereto and the cause of action therein are identical. The verdict returned in this prior action on June 30, 1904, is as follows: "The jury find that the defendant Daniel F. Grady doing business as the Citizens' Concrete Co. did not promise in manner and form as the plaintiff corporation has in its declaration thereof complained against him.” This verdict was duly accepted by the court and recorded by the clerk, and, in accordance with the statute, on the seventh day thereafter judgment was duly entered thereon, as appears by the clerk's minutes on the papers in the case as follows: "July 7, as of June 30. Judg. ment on verdict for deft, with costs taxed at $- The more formal extension of the record, after setting forth the plea of the general issue and the other pleadings in the case, is as follows: “And issue being thereupon joined, said case, being called for trial, is argued by counsel and committed to a jury duly impaneled and sworn to try the issue joined, who by direction of the court .... return a verdict for the de

fendant. It is therefore considered by the court, that said

. defendant recover and have of said plaintiff corporation its costs of defense taxed at $."

474 It is too obvious to require further comment that this verdict was on the merits of the case, and that the judgment for the defendant rendered thereon is a bar to this action.

The plaintiff's contention is to the effect that the stenographic transcript of the testimony shows that the verdict was directed by the court on other grounds. The propriety of that instruction is not before the court for consideration, i nor is it necessary to consider what effect should be given to such a transcript, or even to decide upon its admissibility. The fact remains that the record shows the verdict which was returned by the jury and the judgment which was entered by the court thereon, and no proceedings were ever taken to question the propriety of either of them.

In Smith v. Borden, 17 R. I. 220, 33 Am. St. Rep. 867, 21 Atl. 351, 11 L. R. A. 585, this court said: “The rule is that the judgment of a court having jurisdiction of the subject matter and of the person, though erroneous, is not void, but binding and conclusive upon the parties until it is set aside; that it cannot be impeached in any collateral suit or proceeding, but only on appeal, by writ of error, or by some appropriate proceeding operating directly upon it instituted for that purpose.

It follows that the defendant's exception to the refusal of the court "to direct a verdict for the defendant on the issue raised by the pleading of former judgment recovered by the defendant”' must be sustained, and the case must be remanded to the superior court with direction to enter judgment for the defendant.

The Judgment of a Court having jurisdiction, though erroneons, is conclusive upon the parties until set aside in a direct proceeding: Robinett v. Mitchell, 101 Va. 762, 99 Am. St. Rep. 928; Teel v. Dunnihoo, 230 Ill. 476, 120 Am. St. Rep. 319; but a judgment void by reason of a lack of jurisdiction may be denied or contested at any time in any proceeding, direct or collateral: Flowers v. King, 145 N. C. 234, 122 Am. St. Rep. 444, and see cases cited in the crossreference note thereto.

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