Fiske v. Marino

• Decision Date: 18 May 1966
• Docket Number: No. 10827,10827
• Citation: 100 R.I. 758,219 A.2d 471
• Parties: Albert W. FISKE v. Jennie Concetta MARINO. Ex.
• Court: Rhode Island Supreme Court

Page 471

219 A.2d 471

100 R.I. 758

Albert W. FISKE v. Jennie Concetta MARINO.

Ex. No. 10827.

Supreme Court of Rhode Island.

May 18, 1966.

Aram A. Arabian, Manuel A. DeCarvalho, Providence, for plaintiff.

Gunning & LaFazia, Bruce M. Selya, John D. Lynch, Providence, for defendant.

KELLEHER, Justice.

This action of trespass on the case for negligence is before us on the defendant's exceptions to the decisions of a superior court justice denying two motions to set aside a default judgment and reinstate the case for trial.

It appears from the record that plaintiff is a member of the Rhode Island state police who, in the performance of his duties on February 24, 1963, sustained multiple injuries which he alleges resulted from defendant's negligent operation of a motor vehicle on Nooseneck Hill road in the town of West Greenwich.

On February 4, 1965, a writ of summons was duly served on the registrar of motor vehicles in this state, the required fee was paid, and thereafter notice of such service together with a copy of the writ was sent by registered mail to defendant at 58 Milk street, North Andover, Massachusetts, the The writ, returnable March 17, 1965, was duly entered and plaintiff filed his declaration together with proof that the required notice and copy of the process had been sent to defendant by registered mail. The notice and copy of the writ were returned to plaintiff's attorney, however, postal cancellations on the envelope showing several unsuccessful efforts by the postal department to deliver the correspondence to defendant.

address as shown on her registration certificate-all as provided in G.L.1956, § 31-7-7, as amended. See Appendix I.

The case, unanswered, was called May 17, 1965 and, defendant not appearing, it was continued to June 8, 1965 at which time, on oral proof of damages, a nil dicit judgment in the sum of $3,400 was entered for plaintiff.

On August 27, 1965, defendant filed the first of two motions to set aside the judgment and reinstate the case as provided by G.L.1956, § 9-21-2. See Appendix II.

This was accompanied by defendant's affidavit setting forth that she had never received notice of the pending action nor a copy of the writ; that she did not know of the action until after the entry of judgment as aforesaid; that in February 1965 she was no longer residing at the North Andover address, which was the home of her mother who was in Florida from January through March 1965; and that her own address at the time was 366 Old Colony Road, Norton, Massachusetts.

Her affidavit also stated that she had a meritorious defense which she wished in good faith to present at a trial, if one were had. Her statements in this regard, however, are mere expressions of opinion or conclusions and do not constitute allegations of fact which if established would tend to affect the outcome of a trial. As such they fall short of the requirement held to be essential by this court in Milbury Atlantic Mfg. Co. v. Rocky Point Amusement Co., 44 R.I. 458, 118 A. 737; Nelen v. Wells, 45 R.I. 424, 121 A. 394, and Pono v. Cataldo, 89 R.I. 242, 152 A.2d 99, among others.

The motion was also accompanied by an affidavit of her attorney which, on information and belief, alleged facts upon which a determination of a prima facie defense could be made. Holding as a matter of law that this latter affidavit did not constitute compliance with the statute, the superior court justice denied the motion at a hearing held September 20, 1965. From that decision defendant seasonably prosecuted her bill of exceptions to this court.

Thereafter, however, on October 21, 1965, she filed a second motion in the superior court, supplemented by her affidavit restating lack of knowledge as to the pendency of the action and setting forth allegations of fact relative to a meritorious defense. This motion was heard on November 15, 1965 and denied by the superior court justice on the ground that no cause had been shown. From that decision defendant duly prosecuted a second bill of exceptions which, because of the view that we take of the September 20, 1965 decision, requires no consideration and is therefore dismissed pro forma.

Before turning to a consideration of her first bill of exceptions, we deem it advisable to comment on the unusual if not irregular procedures adopted by defendant. The plaintiff has not raised the question of whether § 9-21-2 will support a succession of motions with each adverse decision thereon open to review in this court. Nor has defendant so much as suggested affirmative support for such a proposition. If explored, the question might conceivably prove troublesome. Be that as it may, however, and notwithstanding our right to a contrary course of action, we deem it advisable in this instance to leave the question unanswered while sounding a cautionary note that the practice, if permissible, should not be put to common use.

In passing on defendant's first motion, the superior court justice concerned himself In a long line of decisions this court has repeatedly held that a motion to set aside a default judgment is addressed to the judicial discretion of the court having jurisdiction of the litigation and a decision therein will not be disturbed except for an abuse of discretion or an error of law. Fox v. Artesian Well & Supply Co., 34 R.I. 260, 83 A. 115; Roy v. Tanguay, R.I., 131 A. 553; Borden v. Briggs, 49 R.I. 207, 142 A. 144; Vingi v. Vigliotti, 63 R.I. 9, 6 A.2d 719; Vitullo v. Ambrosino, 77 R.I. 84, 73 A.2d 764, 21 A.L.R.2d 861.

solely with the competency of the evidence before him bearing on the issue of a meritorious defense. Concluding that the affidavits of defendant's counsel did not comply with the requirement of the statute in this regard, he gave no consideration to the question of whether cause had been shown. Since we believe that defendant should have prevailed on her first motion, it becomes necessary for us to consider whether cause and a prima facie meritorious defense were established. See McLeod v. Fleetwood Motor Sales Inc., 83 R.I. 447, 118 A.2d 921; Pono v. Cataldo, supra, and Pettis v. Henderson, 91 R.I. 191, 162 A.2d 540.

We turn then to a consideration of the superior court justice's determination that the affidavit of defendant's attorney did not comply with the provisions of the statute. It is apparent from his decision that he entertained no doubt as to the sufficiency of circumstances set forth. Rather, he was motivated by the fact that they were not within the personal knowledge of defendant's attorney. Indeed, in McLeod v. Fleetwood Motor Sales Inc., supra, this court in reversing a superior court justice's decision granting the motion made note of the fact that the statements of the defendant's attorney were not based on personal knowledge. However, the statements...