Dunham v. Deslandes

• Decision Date: 21 February 1913
• Citation: 85 A. 921
• Parties: DUNHAM v. DESLANDES.
• Court: Rhode Island Supreme Court

85 A. 921

DUNHAM

v. DESLANDES.

Supreme Court of Rhode Island.

Feb. 21, 1913.

Action by Fred E. Dunham against Damase Deslandes. On defendant's petition for a trial after judgment by default on a writ of scire facias. Petition denied and dismissed.

Frederick C. Olney, of Wakefield, for plaintiff.

Irving Champlin and Joseph J. Cunningham, both of Providence, for defendant.

PER CURIAM. The defendant, after judgment against him by default on a writ of scire facias, petitions for a trial, on the grounds that the affidavit attached to said writ, and by virtue of which he was arrested, was false, and that he employed an attorney to answer the action and defend him, and that said attorney failed to do so. He states that he has a good defense to the action, but does not state what it is. The question of the lawfulness of the arrest could have been raised by motion to discharge from arrest. After judgment, we think the falsity of the affidavit, if established, would not, by itself, be a ground for the granting of a trial upon the merits of the case. The petitioner makes affidavit that he retained an attorney, and this the attorney denies.

We have considered all the affidavits and the testimony offered, and are of the opinion that they do not disclose a case of accident, mistake, or unforeseen cause which justifies the granting of a trial.

The petition is denied and dismissed.