Stanton v. Hawkins

• Decision Date: 02 April 1918
• Docket Number: No. 5134.,5134.
• Citation: 103 A. 229,41 R.I. 501
• Parties: STANTON v. HAWKINS.
• Court: Rhode Island Supreme Court

103 A. 229

41 R.I. 501

STANTON

v. HAWKINS.

No. 5134.

Supreme Court of Rhode Island.

April 2, 1918.

A. B. Crafts, of Providence, for plaintiff. Waterman & Greenlaw, of Providence (Charles E. Tilley, of Providence, of counsel), for defendant.

STEARNS, J. This is an action of scire facias against bail. The defendant demurred to the declaration, and the issue on the demurrer was argued before one of the justices in the superior court on the 3d day of October, 1917. On the 15th of October, 1917, the court filed a rescript in the case, sustaining the demurrer, and on the same day notice of the decision was duly sent by mail by the clerk of the superior court to the attorney of each party. On the 30th of November, 1917, the attorney for the plaintiff filed an affidavit in the superior court, in which he stated that he did not receive any notice of the decision upon said demurrer until the 23d day of November, 1917, when upon inquiry he was informed that a decision had been rendered on the demurrer; that he immediately on said day looked at the records of the court, and found that a decision had been filed on the 15th of October, and that he looked in all possible places where the copy of said rescript might be in his office, and found no trace of it. The affidavit also contained what purported to be an exception to the decision of the court as follows:

"The plaintiff therein, Earl F. Stanton therefore files an exception to said decision of the court sustaining said demurrer to said writ of scire facias, and hereby excepts to said decision within seven days after knowledge and notice of said decision."

Upon the same date, November 30, 1917, a notice of intention to prosecute a bill of exceptions and a bill of exceptions were filed in the office of the clerk of the superior court. This bill of exceptions, on the 7th day of December, 1917, was allowed by the justice of the superior court, and an exception to this action of the court was duly taken by the defendant. The case is before this court on the motion of the defendant to dismiss the plaintiff's bill of exceptions. The defendant claims that the exception of the plaintiff to the action of the trial justice was not duly taken and the notice of intention to prosecute a bill of exceptions was not filed in time. These objections will be considered together, as the language of the statute applicable to each is the same.

In section 10, chapter 298, of the General Laws 1909, it is provided that exceptions to a final decision in a cause heard by the court without a jury may be taken by filing the same in the office of the clerk within seven days after notice of the decision, and by section 17 it is provided that, in order to prosecute a bill of exceptions to the Supreme Court, notice of intention to prosecute a bill of exceptions must be filed in the office of the clerk of the superior court within seven days after notice of decision. Section 11 of chapter 298, as amended by chapter 426 of the Public Laws, provides as follows:

"The clerk shall give immediate notice to the parties, or to their attorneys of record, of final decisions in causes heard by the court without a jury, of decisions upon motions for a new trial and in arrest of judgment, and of decisions upon all interlocutory matters, in such manner as the court shall by general rule or special order prescribe: Provided, that if any such decision shall be rendered immediately upon the close of a hearing, such notice shall not be required."

Rule 30 of the Rules of Practice of the superior court is as follows:

"The clerk shall give notice in writing of the decision in a cause heard by the court without a jury, of...