Hartley v. Rhode Island Co.

• Citation: 66 A. 63,28 R.I. 157
• Parties: HARTLEY v. RHODE ISLAND CO.
• Decision Date: 06 February 1907
• Court: Rhode Island Supreme Court

66 A. 63

28 R.I. 157

HARTLEY

v. RHODE ISLAND CO.

Supreme Court of Rhode Island.

Feb. 6, 1907.

Exceptions from Superior Court, Providence County.

Action by Gertrude Hartley against the Rhode Island Company for negligence. On motion to dismiss defendant's bill of exceptions. Granted.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

John W. Hogan and Philip S. Knauer, for plaintiff. Henry W. Hayes and Frank T. Easton, for defendant.

DOUGLAS, C. J. This is a motion to dismiss a bill of exceptions presented to this court, on the ground that the bill and transcript have never been duly allowed, nor the truth of the exceptions duly established; the bill having been filed in the superior court September 24, 1906, and signed by the judge November 10, 1906.

The privilege of review by a bill of exceptions is given by Court & Practice Act 1905. §§ 490 to 497, and, as we said of petitions for new trials, in Haggelund v. Oakdale Mfg. Co., 26 R. I. 520, 523, 60 Atl. 106, is contingent upon a diligent observance of the conditions imposed. The following are the provisions of the court and practice act on this subject:

"Sec. 492. The clerk, immediately upon the filing of a bill of exceptions, shall present the same, with the transcript, if any, to the justice who presided at the trial; and if upon examination thereof, after hearing the parties, he shall find the exceptions, evidence, rulings, instruction, and findings correctly stated, he shall allow them. In all cases the exceptions and transcript shall be restored by the justice to the files of the clerk, with a certificate, signed by him, of his action thereon.

"Sec. 493. Upon a bill of exceptions being allowed and restored to the files, the clerk of the superior court shall forthwith certify and transmit the papers in the cause to the clerk of the Supreme Court.

"Sec. 494. If the justice who presided at the trial shall, for a period of twenty days after a bill of exceptions has been filed, fail to act upon or return the same, or shall disallow, alter, or refuse to alter the same, and either party is aggrieved thereby, the truth of the exceptions may be established before the supreme court upon petition stating the facts, filed within thirty days after the filing of the bill of exceptions in the superior court; and thereupon the truth of the exceptions being established in such manner as the court shall by rule prescribe, they shall be heard and the same proceedings taken as if the exceptions had been duly allowed and filed. And upon such petition being filed, the supreme court may order the clerk of the superior court to certify and transmit to the clerk of the supreme court the papers in the cause."

The statute thus gives the justice who presided at the trial 20 days within which to consider and act upon the exceptions. If his action within that time aggrieves either party, such party, within 30 days from the time the bill was filed, may apply by petition to this court to establish the exceptions as he conceives the truth to be. If the justice neglects to act at all within the 20 days, the party who is aggrieved by his inaction may apply to this court within the 30 days. The...