McCudden v. Wheeler & Wilson Mfg. Co.

Supreme Court of Rhode Island

McCudden v. Wheeler & Wilson Mfg. Co.

51 A. 48, 23 R.I. 528, 1902 R.I. LEXIS 138

DecidedJanuary 24, 1902

StatusPublished

This text of 51 A. 48 (McCudden v. Wheeler & Wilson Mfg. Co.) 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

McCudden v. Wheeler & Wilson Mfg. Co., 51 A. 48, 23 R.I. 528, 1902 R.I. LEXIS 138 (R.I. 1902).

Pincite

Opinion

Per Curiam.

(1) The demurrer of Wheeler & Wilson Company to the bill is sustained. Not only is the petition for a new trial made after the expiration of a year from the date of the judgment, but it states no ground of accident, mistake, or unforeseen cause as the ground for such new trial.

(2)

*529 (3) *528 The demurrer of Edmund Cote is also sustained. The constable’s deed shows that the estate was advertised to be sold *529 under the execution on March 14, 1900, and that the sale was adjourned to March 16, but in what year it does not state. Gen. Laws cap. 257, § 13, allows an adjournment of a sale, but it requires one week’s notice thereof by publication in a newspaper. This statute is not complied with by a notice of two days. Hence the complainant has an adequate remedy at law.

J. J. Fitzgerald, for complainant. C. M. Lee, for respondent.

(4) The complainant urges that the bill may stand to remove a cloud on title. But removing a cloud does not put a complainant in possession of property. An action of ejectment would still be necessary, and two suits cannot be allowed where one will suffice.

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Per Curiam.

(1) The demurrer of Wheeler & Wilson Company to the bill is sustained. Not only is the petition for a new trial made after the expiration of a year from the date of the judgment, but it states no ground of accident, mistake, or unforeseen cause as the ground for such new trial.

(2)

*529 (3) *528 The demurrer of Edmund Cote is also sustained. The constable’s deed shows that the estate was advertised to be sold *529 under the execution on March 14, 1900, and that the sale was adjourned to March 16, but in what year it does not state. Gen. Laws cap. 257, § 13, allows an adjournment of a sale, but it requires one week’s notice thereof by publication in a newspaper. This statute is not complied with by a notice of two days. Hence the complainant has an adequate remedy at law.

J. J. Fitzgerald, for complainant. C. M. Lee, for respondent.

(4) The complainant urges that the bill may stand to remove a cloud on title. But removing a cloud does not put a complainant in possession of property. An action of ejectment would still be necessary, and two suits cannot be allowed where one will suffice.

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Bluebook (online)

51 A. 48, 23 R.I. 528, 1902 R.I. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccudden-v-wheeler-wilson-mfg-co-ri-1902.