Slater v. Fehlberg

54 A. 383, 24 R.I. 574, 1903 R.I. LEXIS 132

• Court: Supreme Court of Rhode Island
• Decided: January 7, 1903
• Status: Published

Opinion

Tillinghast, J.

(1) There is a fatal variance between the writ and declaration in this case, and hence we are of opinion that the action must be dismissed.

The form of action set out in the writ is trespass on the case ; while that set out in the declaration is trespass.

(2) Our statute relating to amendments is not sufficiently broad to enable the court to permit the form of action to be changed. Wilcox v. Sherman, 2 R. I. 540 ; Thayer v. Farrell, 11 R. I. 305 ; Barnes v. Mowry, ib. 422 ; Bowling v. Clarke, 13 R. I. 650 ; Vaill v. Town Council, 18 R. I. 405 ; Wilson v. Ry. Co., ib. 598. See also Hobbs v. Ray, ib. 84.

Leon L. Mott, for plaintiff. Francis Colwell, Albert A. Baker, and Frank T. Easton, for defendant Parker. Frederick Bueckert, for defendant Pehlberg.

(3) As a variance like the one in question may be taken advantage of at any stage of the case, the mere fact that the general issue and other pleas were filed by the defendants before taking the objection is immaterial. Rathbun v. Ry. Co., 19 R. I. 463.

The case is remanded to the Common Pleas Division, with direction 'to dismiss it.