Johnson v. Randall

• Decision Date: 22 January 1915
• Docket Number: Nos. 309-311.,s. 309-311.
• Citation: 92 A. 829
• Parties: JOHNSON v. RANDALL (two cases). PINDLE v. SAME.
• Court: Rhode Island Supreme Court

92 A. 829

JOHNSON

v. RANDALL (two cases).

PINDLE

v. SAME.

Nos. 309-311.

Supreme Court of Rhode Island.

Jan. 22, 1915.

Suits by Carroll Johnson, by Annie B. Johnson, and by Martha Pindle against William R. Randall. On petition for leave to appeal. Petitions denied and dismissed.

John B. Edwards, of Providence, for petitioners.

McGovern & SLattery, of Providence, for respondent.

PER CURIAM. These are three petitions, filed under section 3 of chapter 297 of the General Laws, for leave to file and prosecute appeals from decrees entered May 9, 1914, in the superior court for Providence county, dismissing, after hearing, certain bills in equity, numbered respectively 2882, 2883, 2884, in one of which cases the above-named Martha Pindle, Annie B. Johnson, and Carroll Johnson, and in the order named, was the sole complainant, and in all of which said William R. Randall was the respondent.

In each petition it is alleged that "from accident, mistake, and unforeseen cause" there was a failure to file a claim of appeal "within the time required by law and that Justice requires a revision of the ease." The affidavits in the cases show that a claim of appeal in each case was filed on June 9, 1914, which was not within the time allowed for such appeal by section 25 of chapter 289 of the General Laws.

The sole reason given for not filing the appeals in time, as stated in the affidavits of the counsel of record for said complainants, who filed said appeals, is:

"That in his computation he had excluded the first day, viz., May 9th, and included the last day, viz., June 9th, as 30 days, and had not counted the actual number of days between these two dates. That he overlooked the fact that the month of May carried 31 days, and did not discover the error or mistake until the next day after filing the said claim of appeal, when his attention was called to it by the clerk of the superior court."

The cases presented by these three petitions are not essentially different from several reported cases, wherein this court has denied relief of the kind now sought. It is a typical case where a right of a litigant is lost by the neglect or lack of care of counsel. In the present cases he made a "mistake," to be sure; but it is not from such a mistake that the statute affords relief. Haggelund v. Oakdale Mfg. Co., 26 R. I. 520, 60 Atl. 106; Jackvony v. Colaluca, 29 R. I. 441, 72 Atl. 289; McKeough v. Gifford, 30 R. I. 192, 73 Atl. 1085; Allen & Reed, Inc., v. Russell, 33 R....