Mcmahon v. Edelstein .

• Decision Date: 24 June 1949
• Docket Number: Ex. Nos. 8945, 8946.
• Citation: 67 A.2d 32
• Parties: McMAHON v. EDELSTEIN (two cases).
• Court: Rhode Island Supreme Court

67 A.2d 32

McMAHON

v.EDELSTEIN (two cases).

Ex. Nos. 8945, 8946.

Supreme Court of Rhode Island.

June 24, 1949.

Exceptions from Superior Court, Providence and Bristol Counties; John E. Mullen, Judge.

Actions in trespass on case by John McMahon and Nellie McMahon, husband and wife, against Israel Edelstein, doing business as Keystone Oil & Coal Company, for personal injuries sustained by plaintiff wife. To review an order granting plaintiff's motion to permit deputy sheriff to amend his return of service on original writ and denying defendant's plea in abatement based upon alleged lack of service on defendant individually, the defendant brings exceptions. On plaintiffs' motion to dismiss bills of exceptions on ground that they were prematurely brought.

Motion granted and cases remitted.

CONDON, J., dissenting.

William E. Boyle, Providence, for plaintiffs.

Francis V. Reynolds, Providence, for defendant.

FLYNN, Chief Justice.

These two actions by a husband and wife respectively were brought in trespass on the case for negligence to recover damages based upon personal injuries sustained by Nellie McMahon, the wife. Each case is before us on the defendant's bill of exceptions to the granting of plaintiff's motion to permit the deputy sheriff, hereinafter referred to as the officer, to amend his return of service on the original writ, and to the denial of defendant's plea in abatement based upon alleged lack of service on the defendant individually.

Each action was commenced by a writ of summons against the defendant ‘Israel Edelstein, alias John Doe, doing business as Keystone Oil & Coal Co.,’ returnable to the superior court on January 25, 1947. The writs were duly entered in that court, and each had a return signed by the officer to the effect that he had made service thereof by leaving a true and attested copy in the hands and possession of a clerk employed by the defendant.

The defendant, appearing specially without submitting to the jurisdiction of the superior court, filed in each case a plea in abatement on the ground that it appeared ‘by the writ and declaration’ that defendant was an individual but that the service as shown by the officer's return was made in accordance with the statute prescribing the manner of serving process only on corporations, and therefore was not a proper service upon him individually. At a hearing on January 26, 1948 no testimony was taken but after argument on the law the cases were reserved for decision.

Subsequently, but before any decision was rendered, the plaintiff filed a motion in each case to permit the officer to amend his return on the original writ so as to show legal service upon the defendant individually. At a hearing thereon the officer was permitted to testify, over the defendant's objection, that the return of service on the original writ in each case was erroneous and that he had not made service of these writs upon the defendant as shown by his return on the original writ but had served defendant individually at his home in accordance with the statute. He testified that he had made several trips to defendant's office in an attempt to serve him personally; that somebody there told him where defendant lived; and that he finally made service of the writs in question at the defendant's last and usual place of abode at 11 Brewster street in the city of Providence within his precinct by leaving true and attested copies thereof with a person who came to the door, and who was presumed to be the defendant's wife. The defendant offered no testimony.

The trial justice thereupon noted that the testimony of the officer was uncontradicted; that he believed his testimony concerning the actual service; and he therefore concluded that the original writs had been served at the last and usual place of defendant's abode in accordance with the statute. However, he reserved decision in each case in order to consider and determine the further question whether the court had the right to permit the officer in these circumstances to amend his original return so as to conform to the facts of service as he had found them. Thereafter the justice filed a rescript granting the plaintiffs' motions for leave to amend under General Laws 1938, chapter 519, §§ 1, 2, and stated: ‘When such amendments are made by the officer, the plea in abatement in each case is denied. The defendant may have ten days after such amendments are made within which to plead over.’

The defendant did not plead over but within the time specified by statute filed in each case both his notice of intention to prosecute a bill of exceptions to the decision and also his bill containing three exceptions, namely, (1) to the ruling permitting the officer to testify in contradiction of his return of service on the original writ; (2) to the decision granting the plaintiff's motion to amend the return of service; and (3) to the decision denying the defendant's plea in abatement. When these bills were presented for allowance to the trial justice who had heard the motions and pleas he thereupon noted: ‘I certify that the foregoing exceptions were duly taken, but this Bill of Expections is disallowed as being premature.’

Under G.L.1938, chap. 542, § 9, the papers in each case were then certified to this court where the defendant filed a motion to establish the truth of the bill of exceptions in each case. The plaintiffs thereupon filed motions to dismiss these bills on the ground that they were prematurely brought, because the rulings and decisions in question were made before trial and were not final decisions that are reviewable at this time under G.L.1938, chap. 542, § 12.

At a hearing on these motions in this court it appeared to us that the exceptions had been duly noted and established in the transcript, but that the question whether the bills were prematurely brought possibly might be involved materially with the validity of the exceptions. We therefore denied the motions to dismiss, without prejudice to the right of the plaintiffs to renew them when the exceptions were being heard by us on the merits.

The plaintiffs have renewed their former motions to dismiss the bills of exceptions on the ground that they were prematurely brought. They first argue that the decisions in question were made before trial upon matters of pleading; that they do not conclude the defendant on the merits of the case in the superior court; and that therefore they are not final decisions which are reviewable at this time within contemplation of the statute as construed by the decided cases thereunder, citing, among others, Troy v. Providence Journal Co., 43 R.I. 22, 109 A. 705; Pawtucket Cabinet & Builders Finish Co. v. Peoples Excursion Line, Inc., 45 R.I. 426, 428, 123 A. 354; Chase v. United States Fidelity & Guaranty Co., 71 R.I. 81, 42 A.2d 488. Secondly, they contend that if the bills are properly here the decisions in question should be sustained because, under G.L.1938, chap. 519, §§ 1, 2, the court had the power to permit the officer to testify and to amend his return of service in each case to conform to the facts.

The defendant apparently relies upon the contention that the plea in abatement in each case raises a jurisdictional question of the court's authority over the person of the defendant and therefore ought to be reviewable before trial to avoid expense and possibly the waiver of his right ultimately to challenge the court's jurisdiction. If that be granted he then contends that the officer's original return was conclusive as a matter of law and could not be contradicted; and that the trial justice should not have permitted the officer to nullify his signed return of service on the original writ by substituting a wholly different kind of return which was not on the writ before the superior court when the hearing on such pleas was held.

The answer to the first question, whether these decisions are reviewable under our statute before trial by bills of exceptions, is to be found by determining whether the rulings or decisions in question are final decisions within the contemplation of our statute. In this state a review of questions of law by a bill of exceptions is statutory and is governed by G.L.1938, chap. 542. The instant case involves particularly § 12, which reads as follows: ‘Exceptions to decisions or rulings prior to trial shall be open to revision after verdict or final decision on the merits, but so far only as it appears to the supreme court that the verdict or final decision was erroneously affected thereby.’

This court has defined and determined in many cases what constitutes a final decision under that section. The history of the statute, which was enacted as a part of the Court and Practice Act in 1905, was reviewed extensively in the case of Troy v. Providence Journal Co., supra. There the court pointed out that prior to the enactment of this statute it had been the practice of the appellate court generally to review certain questions of law before trial; that after careful study and recommendation by a learned and experienced commission, which had fully considered and weighed the advantages and disadvantages of the former practice, the existing statute was enacted intentionally to change that practice; and that the policy or purpose thereof was to prevent the piecemeal review of many legal questions that could be involved in a case before it was determined on the merits. The court frankly recognized that a review before trial might have had advantages in some cases, but nevertheless felt that as a matter of long-range policy and practice these were outweighed by the disadvantages and delays consequent upon a piecemeal review of interlocutory rulings. It therefore held that under the statute a bill of exceptions in properly here only after a verdict or final decision has been rendered in the case, and it expressly stated that a final decision under the statute means ‘a determination upon the...