Cascia v. William Gilbane & Bro.

Supreme Court of Rhode Island

Cascia v. William Gilbane & Bro.

60 A. 237, 26 R.I. 584, 1905 R.I. LEXIS 12

DecidedFebruary 8, 1905

StatusPublished

This text of 60 A. 237 (Cascia v. William Gilbane & Bro.) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cascia v. William Gilbane & Bro., 60 A. 237, 26 R.I. 584, 1905 R.I. LEXIS 12 (R.I. 1905).

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Opinion

Per Curiam.

The proceeding before us is a petition for a new trial of a motion, made before one of the judges of the Common Pleas Division, to reinstate a case which had previously been dismissed by said division on the statement of the plaintiff that he desired it to be discontinued.

*585 John C. Quinn, for plaintiff. Vincent, Boss & Barnefield, for defendant.

We are now asked, in effect, to review the decision of the justice refusing to reinstate the case. The power is given by Gen. Laws cap. 246, § 2, to any court within six months after entry of judgment by default or by mistake, for cause shown, to set .aside such judgment and reinstate the case. This power is discretionary in the division where the judgment was rendered, and when it has been exercised is not subject to review in the other division. We have, therefore, no jurisdiction to entertain such a petition as the present one.

In Kinkead v. Keene, 22 R. I. 336, a similar question was raised, and we there held that such a proceeding was in effect a petition for a trial, and, the jurisdiction of the two divisions of the court being concurrent in such a case, the decision of a petition in either of said divisions was conclusive, because this division has no more right to grant a trial after it has been refused in the Common Pleas Division than the latter would have to grant a trial after it had been refused by this division.

That case is, therefore, controlling in the one now before us. The petition is therefore denied and dismissed.

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Per Curiam.

The proceeding before us is a petition for a new trial of a motion, made before one of the judges of the Common Pleas Division, to reinstate a case which had previously been dismissed by said division on the statement of the plaintiff that he desired it to be discontinued.

*585 John C. Quinn, for plaintiff. Vincent, Boss & Barnefield, for defendant.

We are now asked, in effect, to review the decision of the justice refusing to reinstate the case. The power is given by Gen. Laws cap. 246, § 2, to any court within six months after entry of judgment by default or by mistake, for cause shown, to set .aside such judgment and reinstate the case. This power is discretionary in the division where the judgment was rendered, and when it has been exercised is not subject to review in the other division. We have, therefore, no jurisdiction to entertain such a petition as the present one.

In Kinkead v. Keene, 22 R. I. 336, a similar question was raised, and we there held that such a proceeding was in effect a petition for a trial, and, the jurisdiction of the two divisions of the court being concurrent in such a case, the decision of a petition in either of said divisions was conclusive, because this division has no more right to grant a trial after it has been refused in the Common Pleas Division than the latter would have to grant a trial after it had been refused by this division.

That case is, therefore, controlling in the one now before us. The petition is therefore denied and dismissed.

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Bluebook (online)

60 A. 237, 26 R.I. 584, 1905 R.I. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cascia-v-william-gilbane-bro-ri-1905.