Scotland v. Scotland, 1596.

• Decision Date: 06 April 1942
• Docket Number: No. 1596.,1596.
• Citation: 25 A.2d 556
• Parties: SCOTLAND v. SCOTLAND et al.
• Court: Rhode Island Supreme Court

25 A.2d 556

SCOTLAND

v. SCOTLAND et al.

No. 1596.

Supreme Court of Rhode Island.

April 6, 1942.

Appeal from Superior Court, Providence and Bristol Counties; Patrick P. Curran, Judge.

Suit by Lura E. Scotland against Ralph Scotland, Sr., and others, for an accounting, for an injunction enjoining respondents from selling or incumbering certain realty, and for a decree ordering conveyance of such realty by respondents to the complainant. From a decree denying complainant's motion for leave to file an amended bill, the complainant appeals. On respondents' motion to dismiss the appeal.

Appeal dismissed without prejudice, and cause remanded.

George Triedman, of Providence, for complainant.

Walling & Walling & Carroll and Ambrose W. Carroll, all of Providence, for respondents.

FLYNN, Chief Justice.

This cause is before us on complainant's appeal from a decree of the superior court denying her motion for leave to file an amended bill of complaint. The reasons of appeal are: (1) That said decree is against the law; (2) that said decree is contrary to the rights of the complainant as shown by the pleadings; and (3) that the decision of the justice denying said motion is erroneous and contrary to law.

The transcript and record of the cause disclose the following facts. On August 9, 1937, the complainant filed this bill of complaint against her divorced husband James A. Scotland, and therein joined the latter's father and mother as respondents. The bill prayed for an accounting from respondent James A. Scotland for moneys alleged to have been turned over to him by complainant during their marriage for the purpose of investment for her benefit; and also prayed for an injunction against the father and mother from selling or encumbering certain real estate, the title to which was taken in their names and which was alleged to have been purchased by complainant's husband with moneys turned over to him by complainant as aforesaid; and further prayed for a decree ordering the conveyance of that realty by said respondents to the complainant.

The respondents filed a special plea in bar, substantially setting out that the matters complained of had been settled and disposed of in a previous law action between the complainant and her husband, as evidenced by a settlement stipulation filed therein by the attorneys of record at or about the time when a final decree for the complainant was entered in an action for divorce. Respondents also filed an answer to the bill of complaint. The complainant then filed a motion to strike out respondents' special plea. After a hearing thereon in the superior court the complainant's motion was denied.

Thereupon complainant filed a replication to respondents' special plea, and purported thereby to confess and avoid the allegations of fact contained in such plea. The plea was never set down for hearing on the truth or merits of the facts alleged therein. On the contrary, the complainant, who was the plaintiff in the separate action at law which, according to the...