Rose v. Hanrahan

Superior Court of Rhode Island

Rose v. Hanrahan

1 Super. Ct. (R.I.) 16

CourtSuperior Court of Rhode Island

DecidedDecember 10, 1917

DocketLaw No.39643

StatusPublished

This text of 1 Super. Ct. (R.I.) 16 (Rose v. Hanrahan) is published on Counsel Stack Legal Research, covering Superior 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

Rose v. Hanrahan, 1 Super. Ct. (R.I.) 16 (R.I. Ct. App. 1917).

Pincite

Opinion

TANNER, P. J.

This case is heard upon a demurrer to the declaration. The defendants invoke the rule of law that upon demurrer the Court must search the whole record, and there-' upon call attention to an alleged variance between the writ and the declaration. The writ commands the summons of John G. Hanrahan, Jr., and Matthew DeWolf Hanrahan, both of Providence in said County of Providence, executors of the last will and testament of Francis E. Topliff, late of said Providence, deceased, (George Hurley being duly appointed agent of said executors to secure service of civil process).

The declaration at the beginning recites the language already quoted from the writ and then proceeds to declare specifically upon an indebtedness of the said Topliff during his lifetime, and alleges a refusal to pay by the deceased during his lifetime and by the defendants as executors of the last will and testament of said deceased. The declaration also alleges the filing of the claim with the defendants as executors after their appointment and qualification and notice thereof within the time prescribed by law.

The defendants make the claim that they are summoned as individuals but not as executors, the omission of the word “as” making the words executors, &c., mere words of description; that therefore the declaration against them as executors constitutes a variance.

We cannot agree with this contention. The process describing the defendants only generally as individuals is not a variance from the declaration against them as executors.

“The object of the writ is only to bring the defendant into court. It is the declaration which discloses the cause of action.”

Watson vs. Pilling, 3rd Brod. & B., p. 4.

So where the writ describes the plaintiff generally as an individual the declaration may declare in representative capacity.

Ashwell vs. Ryal, 3rd B. and Ad. p. 19.

Knowles vs. Johnson, 2nd Dowl. 653.

Ilsley vs. Ilsley, 2nd Cromp., & J p. 330.

22nd Ency. Pl. & Pr., p. 520, Par. 4.

Demurrer overruled.

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TANNER, P. J.

This case is heard upon a demurrer to the declaration. The defendants invoke the rule of law that upon demurrer the Court must search the whole record, and there-' upon call attention to an alleged variance between the writ and the declaration. The writ commands the summons of John G. Hanrahan, Jr., and Matthew DeWolf Hanrahan, both of Providence in said County of Providence, executors of the last will and testament of Francis E. Topliff, late of said Providence, deceased, (George Hurley being duly appointed agent of said executors to secure service of civil process).

The declaration at the beginning recites the language already quoted from the writ and then proceeds to declare specifically upon an indebtedness of the said Topliff during his lifetime, and alleges a refusal to pay by the deceased during his lifetime and by the defendants as executors of the last will and testament of said deceased. The declaration also alleges the filing of the claim with the defendants as executors after their appointment and qualification and notice thereof within the time prescribed by law.

The defendants make the claim that they are summoned as individuals but not as executors, the omission of the word “as” making the words executors, &c., mere words of description; that therefore the declaration against them as executors constitutes a variance.

We cannot agree with this contention. The process describing the defendants only generally as individuals is not a variance from the declaration against them as executors.

“The object of the writ is only to bring the defendant into court. It is the declaration which discloses the cause of action.”

Watson vs. Pilling, 3rd Brod. & B., p. 4.

So where the writ describes the plaintiff generally as an individual the declaration may declare in representative capacity.

Ashwell vs. Ryal, 3rd B. and Ad. p. 19.

Knowles vs. Johnson, 2nd Dowl. 653.

Ilsley vs. Ilsley, 2nd Cromp., & J p. 330.

22nd Ency. Pl. & Pr., p. 520, Par. 4.

Demurrer overruled.

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Bluebook (online)

1 Super. Ct. (R.I.) 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rose-v-hanrahan-risuperct-1917.