Colitz v. Gilbert, 563.
Citation | 166 A. 685 |
Decision Date | 10 June 1933 |
Docket Number | No. 563.,563. |
Parties | COLITZ v. GILBERT. |
Court | United States State Supreme Court of Rhode Island |
Action by Abraham Colitz against James F. Gilbert. To review an order of the superior court, entered after suggestion of defendant's death, denying motion of defendant's executor for judgment and granting plaintiff's motion for permission to file an amended declaration, defendant's executor petitions for certiorari.
Record of superior court granting motion to amend declaration and denying executor's motion for judgment quashed, and records and papers ordered returned.
Fergus J. McOsker, of Providence, for plaintiff.
Huddy & Moulton, Hinckley, Allen, Tillinghast, Phillips & Wheeler, Stuart H. Tucker, and S. Everett Wilkins, Jr., all of Providence, for defendant.
Defendant's executor filed this petition for a writ of certiorari to review the decision of a justice of the superior court, denying his motion for the entry of judgment and granting plaintiff's motion for permission to file an amended declaration. The writ was issued and the records and papers in the case have been certified to this court.
The facts necessary to be stated to determine the rights of the parties are as follows: In December, 1923, plaintiff commenced an action of trespass on the case against defendant for negligence in the practice of dentistry. The declaration contained eight counts. Defendant's demurrer to each count was sustained in May, 1924.
On October 27, 1924, a stipulation was filed by which plaintiff's attorney agreed to file an amended declaration on or before November 15; 1924. Nothing further was done in the case until June 8, 1932, when another attorney entered appearance for plaintiff and moved that he be allowed to file an amended declaration. June 11, 1932, it was suggested that defendant died on July 2, 1925. June 14, plaintiff moved to make defendant's executor a party. The same day the executor's attorneys moved for judgment on demurrer to the declaration. July 30, after hearing; the court denied the executor's motion for judgment and granted plaintiff's motion for permission to amend his declaration.
After a demurrer to a declaration has been sustained, the court may in its discretion permit the declaration to be amended. Hebert v. Handy, 28 R. I. 317, 67 A. 325; Atlantic Mills v. Superior Court, 32 R. I. 285, 79 A.,577. It is generally held that the action of the court in granting or refusing to grant an amendment to a declaration will not be disturbed by the appellate court in the absence of an abuse of discretion by the lower court. In such a matter the discretion of the court must be exercised in the light of reason applied to all the facts and with a view to the rights of all the parties to the...
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