Whitford, Sanders & Co. v. Goodwin

Supreme Court of Rhode Island

Whitford, Sanders & Co. v. Goodwin

13 R.I. 145, 1880 R.I. LEXIS 66

DecidedOctober 30, 1880

StatusPublished

This text of 13 R.I. 145 (Whitford, Sanders & Co. v. Goodwin) 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

Whitford, Sanders & Co. v. Goodwin, 13 R.I. 145, 1880 R.I. LEXIS 66 (R.I. 1880).

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Opinion

Per Curiam.

We think the bond was fatally defective in that it had only one surety, whereas the statute calls for “sufficient sureties.” We think it was not amendable under Gen. Stat. R. I. cap. 224, § 4, for § 4 is only applicable in favor of the defendant and on his motion. And it was not amendable under Gen. Stat. R. I. cap. 199, § 4, unless it can be regarded as a part of the “process.” We have come to the conclusion that it cannot be so regarded. It. is something collateral to the process, not a part of it. The process runs against the defendant; the bond is taken for him, the taking of it being required as a condition precedent to the service of the writ. The motion to dismiss, therefore, having been seasonably made, ought to have been granted, Greely v. Currier, 39 Me. 516 ; Claflin v. Thayer, 13 Gray, 459. The exceptions must, therefore, be sustained and the action dismissed. In this case the defendant asks judgment only for costs. It is, therefore, unnecessary to determine whether, if he asked it, he could have a judgment for return and restoration under our statute, after dismissal on his own motion. We give him judgment for costs.

Judgment for the defendant for costs.

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Per Curiam.

We think the bond was fatally defective in that it had only one surety, whereas the statute calls for “sufficient sureties.” We think it was not amendable under Gen. Stat. R. I. cap. 224, § 4, for § 4 is only applicable in favor of the defendant and on his motion. And it was not amendable under Gen. Stat. R. I. cap. 199, § 4, unless it can be regarded as a part of the “process.” We have come to the conclusion that it cannot be so regarded. It. is something collateral to the process, not a part of it. The process runs against the defendant; the bond is taken for him, the taking of it being required as a condition precedent to the service of the writ. The motion to dismiss, therefore, having been seasonably made, ought to have been granted, Greely v. Currier, 39 Me. 516 ; Claflin v. Thayer, 13 Gray, 459. The exceptions must, therefore, be sustained and the action dismissed. In this case the defendant asks judgment only for costs. It is, therefore, unnecessary to determine whether, if he asked it, he could have a judgment for return and restoration under our statute, after dismissal on his own motion. We give him judgment for costs.

Judgment for the defendant for costs.

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Bluebook (online)

13 R.I. 145, 1880 R.I. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitford-sanders-co-v-goodwin-ri-1880.

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