Ktorides v. Kazamias., M. P. No. 929.
| Decision Date | 08 July 1949 |
| Docket Number | M. P. No. 929. |
| Citation | 67 A.2d 404 |
| Parties | KTORIDES v. KAZAMIAS. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Proceeding for a trial by John Ktorides opposed by Michael Kazamias after entry of default judgment.
Petition granted with directions.
Edward H. Ziegler, George K. Demopulos, Providence, for petitioner.
Lawrence A. McCarthy, Pawtucket, for respondent.
This is a petition for a trial which was filed in this court within one year after entry of a judgment by default in an action at law brought by the respondent against the petitioner in the district court of the tenth judicial district. General Laws 1938, chapter 535, § 4. That section provides that this court may order a trial in the court in which such judgment was entered upon a showing that no trial was had ‘by reason of accident, mistake, or unforeseen cause.’
It appears from the affidavits filed by both parties that they are brothers-in-law who formerly lived together in Pawtucket in this state, and that on or about April 20, 1947 petitioner took a trip to the Island of Cyprus with respondent, his wife and their two children. Respondent returned to this country in October 1947 and resumed his residence in Pawtucket, but the petitioner did not return until November 10, 1948 when he went to Springfield, Massachusetts, where he now resides. In the meantime on November 6, 1947 respondent sued the petitioner and attached his savings on deposit with the Rhode Island Hospital Trust Company, Pawtucket office. According to the sheriff's return no personal service was made upon the petitioner, he having had at the time of service no last and usual place of abode within the sheriff's precinct. The case being unanswered on the return day of the writ and only the garnishee having been served, it was continued, according to the usual practice in such cases, for three months by the justice of the district court. Thereafter on March 2, 1948 upon proof of claim judgment was entered for the plaintiff, respondent here, for $253.64 and costs, which was collected from the garnishee who had been duly charged.
Petitioner contends that respondent never made any claim or demand before bringing suit; that he received no notice of the pendency of the suit; and that he had no knowledge of any of the proceedings pertaining thereto until December 29, 1948 when he had occasion to go to Pawtucket to make a withdrawal from his savings account. He was then informed for the first time that he had been sued by his brother-in-law; that the court had entered a judgment against him; and that on execution being served upon the bank it, as garnishee, had been forced to pay over petitioner's funds in satisfaction thereof. Thereupon petitioner retained an attorney who demanded that respondent repay the money which the bank had paid him. This failing, the instant petition was brought on the grounds that by reason of accident, mistake, or unforeseen cause petitioner did not have his day in court and that he has a meritorious defense to the action brought against him.
Petitioner filed two affidavits in support of his petition. The first one was clearly lacking in not setting forth facts from which we could conclude that he had at least a prima facie meritorious defense. Respondent in his brief pointed out this defect and if it had not been cured we would have been constrained to deny the petition on that ground. However, in a further affidavit which he filed before the oral argument in this court petitioner set out sufficient facts to cure such defect and the only question remaining is whether his affidavits set out a good ground for finding that he was deprived of his day in court by reason of accident, mistake, or unforeseen cause.
Respondent in his brief and oral argument opposing the petition made three points: (1) the petition is improperly before the court for failure of petitioner to comply with our rule 11 governing service of citation in proceedings of this nature; (2) the...
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Julie, In re
...statutory provisions which by their nature are intended to provide litigants their day in court. Pate v. Pate, supra; Ktorides v. Kazamias, 75 R.I. 465, 67 A.2d 404 (1949). The petitioner's motion to vacate the decree was based on the allegations in the attached affidavit that respondent mi......
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Vieira v. Davol, Inc.
..."more akin to a mistake of law rather than of fact. And relief will not be granted for a mistake of law." Ktorides v. Kazamias, 75 R.I. 465, 469, 67 A.2d 404, 406 (1949). 4 Again, a bank's submission of a decree for entry without realizing it would release the guarantors of a note was not a......
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Wells, In re
...do so in order that no person should be deprived of his day in court unless through some fault peculiarly his own.' Ktorides v. Kazamias, 75 R.I. 465, 469, 67 A.2d 404, 406. Whether the fact situation here is such as to warrant the exercise of our discretion is to be resolved with liberalit......
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Pate v. Pate
...liberally statutory provisions which by their nature are intended to provide defaulted litigants with a day in court, Ktorides v. Kazamias, 75 R.I. 465, 469, 67 A.2d 404, is persuasive that appellant here has shown cause sufficient to warrant granting her motion to set aside the interlocuto......