Municipal Court v. McElroy

31 A. 435, 19 R.I. 40, 1895 R.I. LEXIS 31

Opinion

Per Curiam.

We are of the opinion that a new trial should be granted in order to permit the defendants to file their plea that the estate of the deceased had been declared insolvent and the proceedings thereon. The defendants styled their plea a second demurrer instead of a plea, though it was in fact a plea. The circumstance that the plea was styled a second demurrer apparently misled the Common Pleas Division. If it had .been a second demurrer the action of the court in declining to permit it to be filed would have been correct; but as it was a plea the defendants should have been permitted to file it. Their demurrer having been overruled they were entitled under our practice to plead over. .

Harry C. Curtis, for plaintiff. Hugh J. Carroll, for defendants.