Allen & Reed, Inc. v. Russell
| Decision Date | 17 February 1912 |
| Parties | ALLEN & REED, Inc. v. RUSSELL. |
| Court | Rhode Island Supreme Court |
Action by Allen & Reed, Incorporated, against Ernest Russell. Petition by defendant for leave to file and prosecute a bill of exceptions under Gen. Laws 1909, c. 297, § 3. Motion to dismiss petition granted, and petition denied and dismissed.
See, also, 81 Atl. 438.
James B. Littlefield, for plaintiff.
Peter J. Quinn, for defendant.
This is the defendant's petition for leave to file and prosecute his bill of exceptions; his claim being that he has been prevented from filing the same at the time fixed therefor in the superior court through accident, mistake, and unforeseen cause. The time fixed for filing said transcript was originally July 17, 1911, and the time had been extended to July 29, 1911. The defendant sets out in his petition that through accident, mistake, and unforeseen cause the transcript of the testimony sent by the court stenographer by express did not reach defendant's attorney till July 31, 1911, too late to be filed according to the order of the court; that he filed said transcript on August 2, 1911, and his exceptions on August 5, 1911, in the clerk's office of said court; that for the above reasons said testimony and his bill of exceptions could not be allowed by the trial judge according to law, in consequence of which he has been deprived of the opportunity to prosecute his bill of exceptions in this court.
In these circumstances we cannot say that the defendant has lost the opportunity to prosecute his bill of exceptions through accident, mistake, or unforeseen cause. The right to a review by bill of exceptions is contingent upon a diligent observance of the conditions imposed by the statute. Gen. Laws 1909, c. 298, §§ 17 to 24, inclusive. This case does not differ in principle from Jackvony v. Colaluca, 29 R. I. 441, 72 Atl. 289. There the stenographer assumed that defendants' attorney would obtain a further extension of time, and the attorney assumed that the stenographer would attend to the matter. In consequence nothing was done, and the defendants lost the privilege of prosecuting their exceptions. In this case the defendant's attorney was not obliged to wait for the transcript until the time for filing had expired. He could have applied to the justice who presided, or, indeed, to any justice of the superior court, for an extension of time beyond July 29, 1911, and if he had not received the transcript in...
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King v. Brown, 11
...exceptions, 3 Monti v. Providence Journal Co., 96 R.I. 175, 190 A.2d 482; Leach v. Teutonia Ins. Co., R.I., 92 A. 554; Allen & Reed v. Russell, 33 R.I. 422, 82 A. 129; Jackvony v. Colaluca, 29 R.I. 441, 72 A. 289; or to return a writ, Di Mauro v. Samson, 88 R.I. 222, 145 A.2d 761; National ......
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Needle v. Cohen, 7992.
...under generally similar facts and circumstances as appear herein. Jackvony v. Colaluca, 29 R.I. 441, 72 A. 289; Allen & Reed, Inc., v. Russell, 33 R.I. 422, 82 A. 129; Bolster v. Bolster, 35 R.I. 367, 87 A. 23; Leach v. Teutonia Ins. Co., R.I., 92 A. 554. The petitioner has called to our at......
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Sormanti v. Deacutis
...extension of the time fixed for filing a bill of exceptions was fatal. Jackvony v. Colaluca, 29 R. I. 441, 72 A. 289; Allen & Reed, Inc. v. Russell, 33 R. I. 422, 82 A. 129. In that year the statute was amended to its present form and paragraph second of § 5, chap. 542, now reads: 'Within s......
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Donahue v. R. A. Sherman's Sons Co.
...by this court. Haggelund v. Oakdale Mfg. Co., 26 R. I. 521, 60 Atl. 106; Seward v. Johnson, 27 R. I. 396, 62 Atl. 569; Allen & Reed v. Russell, 33 R. I. 422, 82 Atl. 129. Having found, upon the evidence presented, that the petitioner might have given the notice had it occurred to him to do ......