Smith v. William H. Haskell Mfg. Co.

• Decision Date: 09 November 1906
• Citation: 28 R.I. 91,65 A. 609
• Parties: SMITH v. WILLIAM H. HASKELL MFG. CO.
• Court: Rhode Island Supreme Court

65 A. 609

28 R.I. 91

SMITH

v. WILLIAM H. HASKELL MFG. CO.

Supreme Court of Rhode Island.

Nov. 9, 1906.

Action by Frederick M. Smith against the William H. Haskell Manufacturing Company. On defendant's motion to dismiss plaintiff's bill of exceptions. Granted.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

John W. Hogan and Philip S. Knauer, for plaintiff. Gardner, Pierce & Thornley and William W. Moss, for defendant.

DUBOIS, J. This case comes before us upon defendant's motion to dismiss the plaintiff's bill of exceptions because "the said plaintiff failed to comply with section 490 (page 139) of the court and practice act of 1905 and rule 32 of the rules of practice of the superior court in actions at law adopted in accordance therewith, by serving the said defendant with notice of the filing of his said bill of exceptions within two days after the filing of said bill, but, on the contrary, did not serve such notice upon this defendant until four days after such filing, as shown by the annexed affidavit." The affidavit referred to substantiates the statement in the motion, the truth of which is not denied, but is admitted, by the plaintiff. The matter is properly brought before us by the motion to dismiss. As was stated by the court in Haggelund v. Oakdale Mfg. Co., 26 R. I 520, at page 523, 60 Atl. 106, at page 107: "We have no jurisdiction to hear a petition for a new trial unless presented as provided by law." This statement is equally applicable to a bill of exceptions. If any fundamental requisite has been omitted, or if an attempt has been made to substitute in its place something just as good, as the saying is, it is proper to point out the defect in a motion to dismiss.

The effect of the motion is to raise for our determination the following question: Is the provision for notice to the adverse party, in rule 32 of the superior court, essentially jurisdictional? The plaintiff claims that it is not, and argues that the statutory provision concerning notice by rule of court relates merely to manner and does not include time; that, as the court has prescribed for notice to both parties by the clerk in rule 31, and for notice by one party to the adverse party in, rule 32, notice under either rule is sufficient to give jurisdiction to the court; and also that, as discretion is reserved to the court in certain cases under rule 32, time is not of the essence of the rule. The argument is not convincing. By virtue of section 34 (page 9) of the court and practice act of 1905, the Supreme and Superior Courts may make and promulgate rules for regulating practice and conducting business therein, in matters not expressly provided for by law, but the rules of the Superior Court are made subject to the approval of the Supreme Court.

A portion of section 490 of said act, which treats of bills of exceptions, among other things provides that "notice of the filing of such bill of exceptions shall be given to the adverse party in such manner as the court shall by rule prescribe." And section 491 (page 140) of the act prescribes that "in case of any default in taking such procedure, judgment shall be entered or sentence imposed as if notice of intention to prosecute a bill of exceptions had not been filed." Pursuant to the provisions of sections 34 and 490 aforesaid, the superior court made the following rule, which was duly approved by the Supreme Court: "(32) Notice in writing of the filing of a bill of exceptions shall be given by the party filing the same to the adverse party within two days thereafter. Said notice shall be served by any person by leaving the same in the hands and possession of the attorney of record of such adverse party or at the office of such attorney with some person having charge thereof. If there be no attorney of record of the adverse party, or if service cannot be made upon such attorney as aforesaid, said notice shall be served upon the adverse party in...