O'Reilly v. N.Y. N.E.R.R. Co.

17 A. 171, 16 R.I. 388

Opinions

In these cases we gave the defendant corporation leave to withdraw its demurrers when the plaintiff was not present, supposing that he did not object. He does object, and asks to have the leave revoked and the demurrers restored. The actions are for damages under a Massachusetts statute. The demurrers raise the question whether the actions lie in this State. The plaintiff wants the question decided at once, so that if it is decided against him he can sue in Massachusetts before the time limited for the suit expires. If the demurrers had not been filed, he could have tried the cases to the jury at the present term. We think the leave to withdraw the demurrers should be revoked, unless the withdrawal was a matter of right on the part of the defendant. We think it was not. The demurrers became a part of the record of the court as soon as they were filed, and the court has exclusive charge of its own records. The demurrers, once filed, could not be withdrawn without leave, which it was discretionary with the court to grant or refuse.

Motion granted.

The demurrers were then heard. The questions raised by them sufficiently appear in the following opinion of the court.