Baus v. Coffey

165 A. 593, 53 R.I. 227, 1933 R.I. LEXIS 69

• Court: Supreme Court of Rhode Island
• Decided: April 10, 1933
• Status: Published

Opinion

Sweeney, J.

This petition is filed in this court under authority of §5108, G. L. 1923, praying for permission to file in the Superior Court notice of intention to prosecute a bill of exceptions after the entry of judgment by mistake.

It appears that at the trial of the case in the Superior Court a verdict was directed for the defendant November 30, 1932; that the attorney for the plaintiff immediately took an exception to this ruling; that December 7 he went to the office of the clerk of the Superior Court to file a notice of intention to prosecute a bill of exceptions to the Supreme Court; that, upon examining the records, it appeared that judgment had been entered December 6; that as a result of this entry of judgment he was misled as to the time within which he should have filed said notice.

By statute plaintiff had seven full days within which to file the notice. §5125, G. L. 1923; Way v. Superior Court, 42 R. I. 444. The entry of judgment December 6 was premature and a mistake for which the plaintiff was not responsible. Notwithstanding this mistake plaintiff’s attorney should have tendered for filing, within the time limited by statute, her notice of intention to prosecute a bill of exceptions. If this had been done, the Superior Court could have set aside the premature entry of judgment under authority of §5063, G. L. 1923. In the circumstances we think justice requires that the petition be granted.

Gilmartin & Toole, for plaintiff. Uldrich Pettine, for defendant.

It is ordered that plaintiff may, on or before April 15, 1933, file in the Superior Court a notice of her intention to prosecute a bill of exceptions and thereafter follow the procedure provided by statute for prosecuting a bill of exceptions.