Plaine v. Samdperil, 7310.
| Decision Date | 18 April 1934 |
| Docket Number | No. 7310.,7310. |
| Citation | 172 A. 330 |
| Parties | PLAINE v. SAMDPERIL. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Philip C. Joslin, Judge.
Action by Julius Plaine against George Samdperil. Plaintiff's motion to amend declaration was denied and verdict directed for defendant, and plaintiff brings exceptions.
Exceptions sustained and case remitted to Superior Court for new trial with direction.
Frank H. Bellin, of Providence, for plaintiff.
Max Winograd, Joseph Goodman, and William J. Carlos, all of Providence, for defendant.
This case is here on plaintiff's exceptions to the denial of his motion to amend and to the granting of the defendant's motion for a directed verdict.
The defendant, having become involved in a dispute with one David Rosenblatt over a claim for a commission on the sale of real estate, entered into an agreement with said Rosenblatt to submit the dispute to arbitration. The arbitrators awarded to Rosenblatt the sum of $750 which he assigned to the plaintiff, Julius Plaine, and the defendant was notified of the assignment. On defendant's refusal to pay, the present action was instituted. When the case was called for trial, the plaintiff moved to amend the writ and declaration so as to have it appear that the action was brought in the name of David Rosenblatt for the benefit of the present plaintiff, Julius Plaine.
The motion to amend should have been granted. Section 23 of chapter 333, Gen. Laws 1923, provides: "When any action has been commenced in the name of the wrong party as plaintiff, the court, if satisfied that it has been so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, may allow any other party or parties to be substituted, or added, as plaintiff or plaintiffs." The mistake clearly appears in the declaration which recites the assignment of claim by Rosenblatt to the present plaintiff, thus bringing the case within the rule requiring that the action must be brought in the name of the assignor. Royal Insurance Co., Ltd., v. Kirwin, 51 R I. 165, 152 A, 797.
There is no merit in the defendant's contention that to permit the amendment is to deprive him of the right to plead the statute of limitations which he could do if the action were commenced de novo. This aspect of the case is controlled by Narragansett Milling Co. v. Salisbury, 53 R. I. 296, 166 A. 502, where, on a similar state of...
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Tillinghast v. Maggs
...A. 512; Taylor v. Superior Court, 30 R.I. 560, 76 A. 644; Narragansett Milling Co. v. Salisbury, 53 R.I. 296, 166 A. 502; Plaine v. Samdperil, 54 R.I. 214, 172 A. 330. Since an amendment, if granted, relates back to the time when the action was commenced, it is not affected by the running o......
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Normandin v. Levine
...was granted to substitute into the action the proper plaintiff for one improperly named in the original complaint. See Plaine v. Samdperil, 54 R.I. 214, 172 A. 330 (1934); Narragansett Milling Co. v. Salisbury, 53 R.I. 296, 166 A. 502 Clearly in the instant case Normandin sought to add a ne......
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Tillinghast v. Maggs, 926
...containing another exception to a final decision of the superior court. Sheldon v. Westcott, 67 R.I. 480, 25 A.2d 219; Plaine v. Samdperil, 54 R.I. 214, 172 A. 330; Flint Motor Sales, Inc. v. Crofton, 54 R.I. 160, 171 A. 236. However, to be entitled to consideration such an exception must b......
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Rose v. Standard Oil Co. of N.Y., Inc.
...court for review on a bill of exceptions based only on an exception to such ruling. Counsel for the defendant urge that in Plaine v. Samdperil, 54 R.I. 214, 172 A. 330, the plaintiff brought his case before this court on exceptions to the denial by the superior court of his motion to amend ......