Moore v. Stillman
| Decision Date | 13 December 1907 |
| Parties | MOORE v. STILLMAN. |
| Court | Rhode Island Supreme Court |
Appeal from Probate Court.
Action by Joseph C. Moore against James W. Stillman. A decision adverse to defendant having been rendered, he moved to settle a bill of exceptions, and, from an order overruling plaintiff's objections to such bill, he appeals. Exceptions dismissed, and case remanded.
Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.
John W. Sweeney, for appellant. James W. Stillman, in pro. per.
This is an appeal from the decree of the probate court of Westerly, filed in the superior court March 8, 1907. A decision adverse to the appellee was rendered in the superior court August 12, 1907. September 18, 1907, the appellee filed in the clerk's office a bill of exceptions, and sent a copy of the same to the attorney of the appellant, but failed to give notice of his intention to file a bill of exceptions as required by the provisions of section 490 of the court and practice act of 1905 and rule 32 of the superior court. September 20th the bill of exceptions was allowed against the objection of the appellant, whose attorney appeared, but did not assign the neglect to give notice as a ground of objection.
The appellant now moves to dismiss the bill of exceptions on the grounds, first, that the superior court had no jurisdiction to allow the bill, inasmuch as the prescribed notice of intention to file the same was not given; and, secondly, because the bill does not state separately and clearly any finding of the court upon any issue of fact or upon any issue of law by which the appellee deems himself aggrieved. Section 490 of the court and practice act of 1905 and rule 32 were applicable to this case, as the statute amendatory of section 490 (Pub. Laws 1907, p. 73, c. 1460) was not passed until April 23, 1907, and by its terms did not affect pending litigation. But we think that the appearance of the appellant by his attorney at the hearing in the superior court upon the allowance of the bill of exceptions was a waiver of the omission in the proceedings.
We think the second objection is fatal to the validity of the bill. Section 490 of the court and practice act of 1905 requires that in a bill of exceptions the party "shall state separately and clearly the exceptions relied upon." There is no such particularity of statement in the bill under consideration. The only grounds assigned by way of exception to the decision of the superior court are "that the said decree of this court is contrary to law, and that the said decree of the probate court ought to have been affirmed by this court." This is clearly insufficient. Such general allegations were held unworthy of consideration under our former practice in a petition for a new trial. Denison v. Foster, 18 R. I. 735, 31 Atl. 894.
These conclusions were substantially reached by the court at the hearing on the motion...
To continue reading
Request your trial
-
Mingo v. R.I. Co.
...founded upon the record and stated with sufficient particularity to preseut clearly the questions intended to be raised. Moore v. Stillman, 28 R. I. 483, 68 Atl. 417; Enos v. R. I. Sub. Ry. Co., 29 R. I. 297, 70 Atl. 1011. Questions of law not properly brought upon the record by exception w......
-
Blake v. Atl. Nat. Bank
...to the statute. The plaintiff bases its contention in support of its motion largely upon the opinions of this court in Moore v. Stillman, 28 R. I. 483, 68 Atl. 417, and Pales v. Pales, 29 R. I. 303, 70 Atl. 965. Moore v. Stillman, followed In Pales v. Fales, proceeded upon the assumption th......
-
Batchelor v. Batchelor
...bill of exceptions has no relation to the procedure required by the statute as to the appellee's bill of exceptions. Moore v. Stillman, 28 R. I. 483, 68 Atl. 417, is not an authority in favor of the appellee. In that case the court held that the notice of the filing of the bill of exception......
-
Fales v. Fales
...prayer of said petition," must be dismissed, because it is too general. It is no more definite than the one criticised in Moore v. Stillman, 28 R. I. 483, 68 Atl. 417. The question whether bills of exceptions are applicable to divorce proceedings under our statutes is not properly before us......