Bassett v. Loewenstein
| Decision Date | 17 May 1901 |
| Citation | 49 A. 41,23 R.I. 24 |
| Parties | BASSETT v. LOEWENSTEIN et al. |
| Court | Rhode Island Supreme Court |
Action by Nanna S. Bassett against Joseph Loewenstein and others. Judgment was rendered in the district court in favor of the plaintiff, and the defendant Loewenstein appealed to the common pleas division of the supreme court without joining his co-defendant, and the appeal was dismissed for such reason, and an appeal therefrom was affirmed by the appellate division. 48 Atl. 589, 934. Petition for new trial in the common pleas division. Petition denied.
George T. Brown, for plaintiff.
Wilson & Jenekes and William J. Brown, for defendant Hahn.
The defendants Loewenstein and Hahn are sued as co-partners. In the district court Loewenstein offered no defense, but testified that Hahn was his copartner. After a decision for the plaintiff, Hahn claimed a jury trial in the common pleas division of this court, without joining his co-defendant. Under our statutes, this operates as an appeal. The case was dismissed for want of joinder in the claim for jury trial, and this petition is filed under Gen. Laws, c. 251, § 2, for a new trial in the common pleas division, on a claim for a jury trial in the names of both defendants, alleging a mistake in making the former claim.
The specific ground of mistake alleged is that the defendant Hahn believed and was advised that he had no right to join his co-defendant in a claim for a jury trial, and accordingly claimed the appeal for himself alone, in accordance with what had been recognized as, and was believed to be, the proper practice. This question was fully considered in Bassett v. Loewenstein, 22 R. I. 468, 48 Atl. 589, 934, where it was held that after a decision against joint defendants a claim for a jury trial by one, not in the name of all, is void. The opinion reviews similar cases previously decided by this court to the same effect Those cases rest upon the ground that as the judgment is joint, not several, being entire against both, it is therefore appealable by both jointly, or by one in the name of both. One reason upon which the rule rests is that the allowance of separate appeals would leave a judgment against one party in one court, and another judgment against the other party or parties in another court, with the necessary consequence of separate executions running against them individually on a joint claim. In addition to the cases cited in the opinion, the petitioner in this case relies...
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...v. Shirley, (Ga.) 66 S.E. 1022; Nichols v. Frank, (Fla.) 52 So. 146; Haymaker v. Schneck, 160 Ind. 443, 67 N.E. 181; Bassett v. Loewenstein, (R. I.) 49 A. 41; Tanquary v. Howard, 35 Colo. 125, 83 P. McIntyre v. Sholty, 139 Ill. 171, 29 N.E. 43; Lydon v. Godard (Ida.) 51 P. 459; Griffin v. S......
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Bolster v. Bolster
...in the petition or shown in the affidavits. It was either a mistake of law or it was an instance of negligence. In Bassett v. Loewenstein et al., 23 R. I. 24, 49 Atl. 41, this court, by Stiness, C. J., said: "In Howard v. Capron, 3 R. I. 182, it was decided that a mistake of law was not of ......