Atl. Mills v. Superior Court

• Decision Date: 21 April 1911
• Citation: 32 R.I. 285,79 A. 577
• Parties: ATLANTIC MILLS v. SUPERIOR COURT.
• Court: Rhode Island Supreme Court

79 A. 577

32 R.I. 285

ATLANTIC MILLS

v. SUPERIOR COURT.

Supreme Court of Rhode Island.

April 21, 1911.

Petition for certiorari by the Atlantic Mills against the Superior Court. Writ abated. See, also, 75 Atl. 801.

Comstock & Canning, for petitioner.

James J. McCabe, for respondent.

DUBOIS, C. J. The petitioner has brought the following petition for writ of certiorari.

"The Atlantic Mills, a corporation organized under the laws of the state of Maine, and which formerly carried on business in Providence, in the county of Providence, in said state of Rhode Island, brings this its petition for a writ of certiorari to the superior court for said Providence county, and thereupon shows:

"(1) That heretofore, to wit, on the 7th day of February, A. D. 1899, John Kolinova, of said Providence, was employed by the petitioner in its factory at said Providence, and while so employed he suffered personal injuries while operating a machine in one of the departments of said factory.

"(2) Thereafterwards, to wit, on the 15th day of December, A. D. 1904, said John Kolinova brought suit against your petitioner in the common pleas division of the Supreme Court for said Providence county, for the purpose of recovering from your petitioner damages for the said injury by him sustained.

"(3) In said suit issue was duly framed, and it was tried to a jury in the superior court on the 2d day of January, A. D. 1907. On the 3d day of January, A. D. 1907, at the close of the testimony for the plaintiff, the justice there presiding, on your petitioner's motion, granted a nonsuit. Said John Kolinova took no further steps in said suit, and thereafterwards in due course a judgment of nonsuit was entered in favor of your petitioner and against said John Kolinova.

"(4) Thereafterwards, to wit, on the 18th day of December, A. D. 1907, by writ issuing from said superior court for said Providence county, said John Kolinova commenced another suit against your petitioner to recover damages for his said injuries, and in due course said lastmentioned writ and declaration were entered in said superior court, and the record thereof is No. 23,821 on the records of said superior court. Your petitioner demurred to said declaration on substantial grounds, and on April 21, A. D. 1908, after argument on said demurrer, said superior court sustained the same.

"(5) Said John Kolinova did not take or file any exception to said decision of said superior court sustaining said demurrer, and he did not prosecute a bill of exceptions to this honorable court for the purpose of reversing said decision, and no motion operating as a stay of judgment was filed in said suit, and there was no express order of said superior court for the entry of said judgment on any day whatever; but on the 30th day of June, A. D. 1908, said John Kolinova did file in said superior court a motion to be permitted to amend his said declaration, and on July 6, 1908, after hearing upon this motion, and over your petitioner's objection, said superior court granted said motion.

"(0) Thereafterwards, to wit, on the 10th day of July, A. D. 1908, your petitioner moved said superior court for a rehearing of said motion to amend, and for the disallowance thereof, and after hearing on said lastmentioned motion, to wit, on the 27th day of August, A. D. 1908, said superior court refused and denied the same.

"(7) Your petitioner now alleges that said superior court erred in permitting said amendment to said declaration, under the circumstances above set forth, for the reason that under the statute in such case made and provided judgment had, or ought to have been, entered for your petitioner, and it was then too late to permit said amendment.

"Wherefore your petitioner prays that this honorable court issue its writ of certiorari, ordering said superior court to certify its records relating to said amendment to said declaration in the suit commenced against your petitioner by said John Kolinova by writ issuing from said superior court on the 18th day of December, A. D. 1907, and all records bearing thereon; that they may be presented to this honorable court, to the end that the same, or so much thereof as may be illegal, may be quashed.

"Causes of Error.

"(1) The granting of said motion to amend said declaration was erroneous and illegal.

"(2) The refusal of said superior court to grant your petitioner's motion for a rehearing and for the dismissal of said motion to amend said declaration was erroneous and illegal.

"(3) That under the statute judgment was, or ought to have been, entered for your petitioner on the seventh day following the day of the decision on said demurrer, and the said motion to amend said declaration was too late, and said superior court had neither power, right, nor jurisdiction to grant the same."

After hearing the said petition this court entered the following rescript:

"A majority of the court is of the opinion that the superior court had authority in its discretion to permit the plaintiff in the case of Kolinova v. Atlantic Mills, to amend his declaration under Court and Practice Act, § 261, now Gen. Laws 1909, c. 285, § 4, before the entry of judgment in the case, upon motion. But inasmuch as the question is also raised as to whether the superior court had jurisdiction to allow an amendment to the declaration in matter of substance, after the period of the statute of limitations had elapsed, this question cannot be determined, except upon comparison of the original declaration with the amended declaration. Therefore the petition of said Atlantic Mills for a writ of certiorari should be granted, and the...