Dunn v. Sullivan
| Decision Date | 14 February 1902 |
| Citation | 23 R.I. 606,51 A. 203 |
| Parties | DUNN v. SULLIVAN. |
| Court | Rhode Island Supreme Court |
Case certified from court of common pleas, Providence county.
Action by Catherine A. Dunn against Mortimer Sullivan. Judgment for plaintiff by default. Motion by defendant to arrest judgment certified to the appellate division. Judgment ordered arrested.
Doran & Flannagan, for plaintiff.
E. W. Blodgett and T. P. Corcoran, for defendant.
TILLING HAST, J. This is trespass and ejectment, and is before us on the defendant's motion in arrest of judgment. The facts are these: The action was brought in a district court, where the defendant entered an appearance, and, after several continuances, decision was rendered for the plaintiff for possession and costs. The defendant thereupon claimed a jury trial, and the case was duly certified to the common pleas division of this court, and after several assignments was finally, on December 6, 1901,—the day on which it had been finally assigned for trial,—called and defaulted, and decision rendered for the plaintiff for possession and double costs. Whereupon, on December 7, 1901, the defendant filed said motion in arrest of judgment, and the case was certified to this division for the trial thereof. The grounds upon which the motion is based are (1) that the declaration states no cause of action, as no seisin in the premises sued for is alleged to be in the plaintiff, and that the title of plaintiff is not set forth so explicitly that a judgment in her favor will determine the character of her estate; and (2) that the declaration does not sufficiently describe her estate, in terms explicit enough to determine title to the same.
That part of the declaration which is in question is as follows: "For that the said defendant, at said Pawtucket, on the 28th day of March, 1900, with force and arms wrongfully detained from the plaintiff possession of a certain tenement to the plaintiff belonging,—being the house located at the corner of Hurley and Bloomingdale avenues, in said Pawtucket,—and, with like force and arms, wrongfully detained possession of the same from the plaintiff, against the peace." That this declaration was demurrable under the decision of this court in Taylor v. O'Neil, 15 R. I. 198, 2 Atl. 299, there can be no doubt. It does not set forth the title of the plaintiff to the premises in question so explicitly that a judgment in her favor will determine the character of her estate, and not simply her right of possession. The question presented for our opinion, therefore, is whether, the declaration being demurrable, the motion in arrest of judgment must be granted. The general rule is that any defect in the declaration which would be fatal on demurrer is also fatal upon a motion in arrest of judgment. State v. Doyle, 11 R. I. 574; 2 Enc. Pl. & Prac. 790, and cases in note 2. The principal exception to this rule is that where the matter which constitutes the defect is so essentially necessary to be proved that, had it not been given in evidence, the jury could not have given such a verdict, there the want of stating that matter in express terms in the declaration, provided it contains terms sufficiently general to comprehend it in fair and...
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Ayotte v. Johnson
...seems to have grown up that this decision applied to all actions of ejectment without exception, and so it was held in Dunn v. Sullivan, 23 R. I. 606, 51 Atl. 203, that the previous decision was controlling in the latter ease, which was brought by a landlord to recover possession from a ten......
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