Providence Fruit & Produce Bldg. Inc. v. Gamco Inc., 9030.

Decision Date11 August 1949
Docket NumberNo. 9030.,9030.
Citation68 A.2d 20
PartiesPROVIDENCE FRUIT & PRODUCE BLDG., Inc., v. GAMCO, Inc.
CourtRhode Island Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Providence and Bristol Counties; Harold A. Andrews, Judge.

Action of trespass and ejectment by the Providence Fruit & Produce Building Incorporated, against Gamco, Incorporated, to recover possession of certain bays or units in plaintiff's produce building. Decision for plaintiff, and defendant brings exceptions.

Exceptions overruled and case remitted for entry of judgment for plaintiff on the decision.

Letts & Quinn, George R. Beane, Providence, for plaintiff.

Aram A. Arabian, Raphael Vicario, Providence, for defendant.

BAKER, Justice.

This is an action of trespass and ejectment brought by a landlord against its tenant to recover possession of certain realty. It was tried in the superior court by a justice thereof sitting without a jury. He rendered a decision in favor of the plaintiff, and the defendant thereafter duly prosecuted its bill of exceptions to this court.

In the writ in this case the property which is alleged to be wrongfully detained by the defendant from the plaintiff's possession is described as follows: ‘four certain bays or units numbered 34, 34 1/2, 36 and 36 1/2 in the Produce Building, so-called, situated on the southerly side of Harris and Kinsley Avenues,’ in the city of Providence. The combined writ and declaration also alleges that the plaintiff on January 13, 1948 by notice in writing ordered the defendant to quit, vacate and deliver up on April 15, 1948 the above-described premises to the plaintiff.

In addition to the plea of the general issue the defendant filed in the superior court four additional pleas. These additional pleas were equitable in nature and in general alleged that the plaintiff for a long time prior to the initiation of this action had been continuously engaged with other persons in a combination and conspiracy in unreasonable restraint of trade and in monopolizing the transportation and sale of fruit and vegetable produce shipped in interstate commerce from other states to Providence in this state in violation of the Sherman Anti-Trust Act, 15 U.S.C.A. § 1 et seq., and in violation of the common law. It was also alleged in the additional pleas that the present action is a proceeding forming a part of, and is intended to further, such combination and conspiracy. The plaintiff demurred to these additional pleas and the demurrer was sustained by a justice of the superior court, to which ruling the defendant duly excepted.

The defendant's bill of exceptions contains six exceptions, three to rulings of the trial justice admitting or rejecting certain evidence, two to his refusal to permit the defendant to make offers of proof, and an exception to his decision in favor of the plaintiff on the merits. After the case reached this court and shortly before it was heard, the defendant filed a motion that it be allowed to amend its bill of exceptions by adding thereto an exception to the ruling of the justice of the superior court sustaining the demurrer to defendant's equitable or additional pleas. The plaintiff objected to such amendment and by our permission the motion was briefed and argued at the same time the other exceptions were heard on their merits.

In our opinion we should dispose of the above motion before we consider the defendant's bill of exceptions as filed. By General Laws 1938, chapter 542, § 5, this court may allow amendments to a bill of exceptions. That section sets out in detail the procedure to be followed by a party who desires to prosecute a bill of exceptions from the superior court to the supreme court. The statute in this respect has been strictly construed and held to be jurisdictional. Frappier v. Frappier, 64 R.I. 54, 10 A.2d 340. It has also been decided that an exception which is not in the bill of exceptions is not before the appellate court for consideration. Rowy v. Mainella, 68 R.I. 149, 26 A.2d 755; Goff v. Lunn, 49 R.I. 455, 143 A. 673. At the conclusion of § 5 is the following sentence upon which the defendant relies: ‘The supreme court may allow amendments to a bill of exceptions or transcript of testimony.’ The question is thus raised whether or not the addition in this court of a separate and distinct exception not appearing in the bill of exceptions as filed and allowed by the trial justice in the superior court, although properly taken in that court, may be considered as an amendment to the bill of exceptions within the meaning and intent of the above-quoted sentence of the statute.

Upon consideration and realizing that the above statutory authority to amend should be given a reasonably liberal construction, even though statutes relating to bills of exceptions are strictly construed, we are nevertheless of the opinion that such a liberal construction should not go to the extent of permitting the addition by us, over objection, of an entirely new exception not appearing in the bill of exceptions when it was presented to and approved by the trial justice and when the case reached this court. An addition of this kind does not seem to us to be an amendment in the proper sense of an existing bill of exceptions within the meaning of the statute. Such a broad application of the power of this court to allow amendments to a bill of exceptions as is urged by the defendant might well lead to careless, hasty and imperfect preparation of bills of exceptions and a reliance on the fact that amendment here would be almost a matter of form. If one exception may be added to a bill of exceptions by this court it might be...

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6 cases
  • Gamco, Inc. v. Providence Fruit & Produce Bldg.
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 13, 1952
    ...Rhode Island courts, which resulted in a judgment in their favor, affirmed by the state supreme court, Providence Fruit & Produce Bldg., Inc., v. Gamco, Inc., 76 R.I. 54, 68 A.2d 20, subsequent to the filing of the complaint in the present action. The district court interpreted the Sherman ......
  • Frigon v. Warner
    • United States
    • Rhode Island Supreme Court
    • May 29, 1953
    ...are jurisdictional and require a strict construction. Frappier v. Frappier, 64 R.I. 54, 10 A.2d 340; Providence Fruit & Produce Bldg., Inc. v. Gamco, Inc., 76 R.I. 54, 57, 68 A.2d 20. The first question in the instant case is whether the ruling of the superior court sustaining defendant's d......
  • Harju v. Shelby Mut. Cas. Co.
    • United States
    • Rhode Island Supreme Court
    • July 13, 1960
    ...exception which is not in the bill of exceptions is not before the appellate court for consideration. Providence Fruit & Produce Bldg., Inc. v. Gamco, Inc., 76 R.I. 54, 57, 68 A.2d 20. The plaintiff took no exceptions to the charge as given. In such circumstance the charge as given is the l......
  • Lancia v. Grossman's of R. I., Inc.
    • United States
    • Rhode Island Supreme Court
    • March 3, 1965
    ...are jurisdictional and require a strict construction. Frappier v. Frappier, 64 R.I. 54, 10 A.2d 340; Providence Fruit & Produce Bldg., Inc. v. Gamco, Inc., 76 R.I. 54, 57, 68 A.2d 20.' The overruling of the demurrer was not a decision by which plaintiffs' rights were finally concluded in th......
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