Denison v. Foster

• Decision Date: 13 December 1894
• Citation: 31 A. 894,18 R.I. 735
• Parties: DENISON et al. v. FOSTER et al.
• Court: Rhode Island Supreme Court

31 A. 894

18 R.I. 735

DENISON et al.

v. FOSTER et al.

Supreme Court of Rhode Island.

Dec. 13, 1894.

Action of trespass and ejectment by Denison and McKenna, trustees, against Walter P. Foster et al. Plaintiffs were nonsuited in the common pleas division, and petition for a new trial. Petition denied.

James E. Denison, for plaintiffs.

Albert B. Crafts, for defendants.

TILLINGHAST, J. The plaintiffs in this case petition for a new trial on the grounds —First, of error of law in the rulings of the justice who presided at the trial thereof in the common pleas division; and, second, that by reason of accident, mistake, and misfortune, they did not have a full, fair, and impartial trial. The case, which was an action of trespass and ejectment, was brought in the district court of the Third judicial district, wherein the defendants severed in their pleas, each filing the general issue, and the defendant Walter P. Foster also filing a special plea in bar. To this plea the plaintiffs demurred, but upon trial thereon the demurrer was overruled, whereupon the plaintiffs submitted to judgment for the defendants, and claimed a jury trial, and the case was duly certified to the common pleas division. When said case came on for trial the plaintiffs insisted that the first question to be determined was whether the ruling of the court below in overruling the demurrer, and thereby sustaining said special plea in bar, was error. But the court ruled that the plaintiffs wore not entitled to a hearing thereon, their claim for a jury trial being the only thing which was properly before the court, and that the judgment of the district court, on the pleadings tiled therein, could not be reviewed by that tribunal. The plaintiffs thereupon went to trial under the pleadings as they stood, and, after submitting their testimony, were, upon motion of counsel for the defendant Ellen M. Foster, nonsuited.

The first and principal question raised by the plaintiffs' petition is whether the ruling of the common pleas division upon the matter of pleading was correct. We are clearly of the opinion that it was. Under the provisions of the judiciary act (chapter 30, § 12), a party aggrieved by any ruling Or decision of a district court on any matter of law raised by the pleadings is entitled to have the question at issue heard and decided by the appellate division of the supreme court on a bill of exceptions properly brought, but he is not entitled to have the same heard by the common...