George E. Merewether, Inc. v. Equi

• Decision Date: 08 March 1933
• Docket Number: No. 575.,575.
• Parties: GEORGE E. MEREWETHER, Inc. v. EQUI.
• Court: Rhode Island Supreme Court

165 A. 219

GEORGE E. MEREWETHER, Inc.

v. EQUI.

No. 575.

Supreme Court of Rhode Island.

March 8, 1933.

Action by George E. Merewether, Incorporated, against Alfred H. Equi, in which the Harris Lumber Company, Incorporated, was made garnishee. The garnishee having been charged in a certain amount brings certiorari.

Writ quashed.

William H. McSoley, of Providence, for petitioner.

Flynn & Mahoney, of Providence, for respondent.

STEARNS, Chief Justice.

This is a petition by a garnishee for a writ of certiorari to be directed to the Seventh district court requiring said court to send and certify to this court the records relating to the above-entitled case. The writ was issued and the cause has been heard.

The original action was begun by a writ of attachment returnable to said district court May 6, 1932. The Harris Lumber Company, Inc., was duly served as garnishee and filed its affidavit as garnishee May 2, 1932. The action was unanswered and was continued to May 20, when the defendant was defaulted. The remainder of the jacket entry is as follows: "Continued to July 15, 1932. Decision for plaintiff for $540 and costs. Question of charging garnishee continued till July 29, 1932. July 29, 1932 garnishee charged in amount of $540." Subsequent to the decision for plaintiff and prior to the charging of the garnishee, the person signing the garnishee's affidavit appeared in court in answer to a summons and was subjected to examination. Gen. Laws 1923, c. 351, § 12. On July 29, the attorney for the garnishee by a written motion requested the court to note its conclusions of law and fact on its docket or to file the same with the papers in the case in rendering its decision on plaintiff's motion to charge the garnishee. In compliance with this request, on the same day the court made and filed written findings of fact and charged the garnishee.

Section 1 of chapter 344, General Laws 1923, provides that: "Upon default or submission of the defendant in any case at law, judgment shall be entered at any time thereafter on ex-parte motion and proper proof of claim. In answered cases, in district courts, for possession of tenements let or held at will or by sufferance, judgment shall be entered on the second day (exclusive of Sundays and legal holidays) after rendition of decision, and in all other answered cases, in any court, judgment shall be entered on the seventh day following the day of the rendition of the verdict or the decision of the court, unless some motion operating as a stay be filed, or unless there be an express order of the court for the entry hereof, on some later day, or unless otherwise provided by statute * * * and * * * judgment, when entered, shall be entered as of the day when the verdict or decision, on which such judgment is based, was rendered, or otherwise as of such other day as may be specially ordered in said verdict or decision."

In Gregson v. Superior Court, 46 R. I. 362, 128 A. 221, this statute was construed by this court. It was held that the word "default" therein had reference to the failure of a party to take any required action in the course of the proceedings; that by this statute actions at law, with respect to the entry of judgment, are divided. In the class governed by the first clause are cases which are unanswered and are defaulted or in which the defendant without filing any plea has confessed or consented to the entry of judgment against him. In this class judgment may be entered at any time thereafter on ex parte motion and proof of...