T. W. Lind Co. v. Nu-Fastener Co.

• Decision Date: 19 December 1919
• Docket Number: No. 5275.,5275.
• Citation: 108 A. 286
• Parties: T. W. LIND CO. v. NU-FASTENER CO.
• Court: Rhode Island Supreme Court

108 A. 286

T. W. LIND CO.

v. NU-FASTENER CO.

No. 5275.

Supreme Court of Rhode Island.

Dec. 19, 1919.

Action by the T. W. Lind Company against the Nu-Fastener Company. Verdict for plaintiff was on defendant's motion set aside and a new trial ordered. The trial judge refused to allow plaintiff's bill of exceptions and transcript, and the case is now before the Supreme Court on plaintiff's petition to establish the truth of the bill of exceptions, etc., under Gen. Laws 1909, c. 298, § 21. Petition denied.

Wilson, Churchill & Curtis, of Providence, for plaintiff.

Edward C. Stiness, Daniel H. Morrissey, and Christopher J. Brennan, all of Providence, for defendant.

PER CURIAM. The original action in this case was in assumpsit. After trial by a jury, a verdict was found in favor of the plaintiff, which was subsequently on motion of the defendant set aside, and a new trial was ordered by the trial justice.

The plaintiff duly filed notice of its intention to prosecute its bill of exceptions, ordered a transcript of the testimony, and made the deposit therefor as required by the provisions of chapter 298, § 17, Gen. Laws 1909. The court stenographer was directed by the court to deliver the transcript of testimony to the plaintiff or its attorney on or before February 21, 1919, and it was also ordered that the bill of exceptions and transcript of testimony should be filed in the office of the clerk of the superior court on or before March 3, 1919. Thereafter, on the 13th of February, 1919, the time for filing the transcript of testimony was extended by the trial court to April 2, 1919, and on April 1, 1919, the time for filing the transcript in the office of the clerk of the court was extended to April 9, 1919. The court stenographer delivered the transcript to the plaintiff before said 9th day of April, but the transcript was not filed in the office of the clerk on or before April 9th, but was filed by the plaintiff with its bill of exceptions on April 19, 1919.

At the hearing on the question of the allowance of the bill of exceptions and transcript, upon objection thereto by the defendant, the trial justice refused to allow the bill and transcript, for the reason that the transcript had not been filed on or before April 9th. The case is now before this court on the petition of the plaintiff to establish the truth of the bill of exceptions, etc. Chapter 298, § 21, Gen. Laws. The sole question is: Was the filing of the transcript in the office of the clerk of the superior court within 10 days after the time limited by the court for filing the same a proper compliance with the statutory provisions relating to bills of exceptions?

In the case of McLean Co. v. Wheelwright, 31 R. I. 562, 78 Ml. 261, which was decided by this court in 1910, it was held in an action at law that, where an extension of time has been made for the filing of a transcript, the terms of the order of extension must be strictly complied with, and that the transcript must be filed in court on or before the date fixed for such filing by the trial justice, or the party would be in default. Many cases, to which it is unnecessary to refer more particularly, have been before this court since the decision above mentioned was rendered, and the decision referred to has been affirmed and followed.

The plaintiff now seeks to have this long line of decisions overruled and the established practice of years changed. In support of its contention it cites the case of Hawkins v. Co-operative Building Association, 33 R. I. 39, 80 Atl. 183, in which this court construed certain provisions of the statutes relating to appeals in cases in equity (chapter 289, § 26,...