Martin v. Hammond
| Decision Date | 15 May 1959 |
| Docket Number | No. 1257,1257 |
| Citation | 89 R.I. 98,151 A.2d 114 |
| Parties | Lionel H. MARTIN v. Edna HAMMOND et al. M.P. |
| Court | Rhode Island Supreme Court |
Aram K. Berberian, Providence, for petitioner-plaintiff.
Hugo L. Ricci, Providence, for defendants.
This is a petition for a writ of certiorari to review the action of a justice of the superior court granting the defendants' motion for a continuance. The petitioner seeks to quash such action on the ground that his constitutional rights have been violated. Because of this claim we ordered the writ to issue and pursuant thereto all pertinent records have been certified to this court.
It appears therefrom that on September 16, 1958, the day on which the case was reached for trial on the merits on the jury trial calendar, defendants' counsel moved for a continuance on the ground that the record disclosed inconsistent decisions relating to certain motions which had been heard and decided by another justice of the superior court. The defendants' counsel argued that this situation had resulted from misunderstanding on the part of the trial justice who heard the motions in question. On the other hand plaintiff's counsel contended that there was no such inconsistency and that even if there were defendants' counsel had failed to take any steps to correct the situation until the case was actually reached for trial.
After hearing arguments of opposing counsel on the motion to continue, the trial justice stated that she believed the statement of defendants' counsel that his efforts to correct the apparent inconsistency were unsuccessful due to the fact that the justice in question was unavailable. She thereupon continued the case to afford counsel an opportunity to consult the justice who had rendered the decisions in question so that the record might be straightened out before the case was called ready for trial. The plaintiff's exception to such ruling was duly noted. Thereafter plaintiff filed the instant petition for a writ of certiorari.
The plaintiff's contention that such decision deprives him of his rights under article I, sec. 5, of the constitution of this state is lacking in merit. It is well settled that the granting or denial of a motion for a continuance is within the discretion of the trial justice and such a decision will not be reversed by this court unless there is a clear abuse of discretion. Capobianco v. United Wire & Supply Corp., 83 R.I. 405 408, 117 A.2d 436; Williams v. Altruda, 74 R.I. 47, 52, 58 A.2d 562.
We have examined the record for the purpose of determining whether the granting of such continuance constituted a clear abuse of discretion. It appears therefrom that plaintiff commenced an action of assumpsit against defendants in the district court of the sixth judicial district and the ad damnum laid in the writ was $1,000. While the action was pending in that court plaintiff filed a bill of particulars listing claims totaling $1,360. After a trial which resulted in a decision for the defendants the plaintiff claimed an appeal to the superior court.
Thereafter on August 20, 1957, he filed...
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...in the face of the constitutional command found in art. I, § 5." (Emphasis added.) Id. at 240, 342 A.2d at 621. Cf. Martin v. Hammond, 89 R.I. 98, 151 A.2d 114 (1959) (the court analyzed, under R.I. Const. art. I, sec. 5, the trial justice's discretion in considering a motion for a continua......
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...had the authority to continue the case for review. Exercise of that power was within the discretion of the court. Martin v. Hammond, 89 R.I. 98, 100, 151 A.2d 114, 115 (1959). On review, the decision of the trial court will not be reversed unless the party seeking review demonstrates a clea......
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