Zidack v. Elbag

Supreme Court of Rhode Island

Zidack v. Elbag

67 A.2d 702, 75 R.I. 495, 1949 R.I. LEXIS 70

DecidedJuly 21, 1949

StatusPublished

This text of 67 A.2d 702 (Zidack v. Elbag) 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

Zidack v. Elbag, 67 A.2d 702, 75 R.I. 495, 1949 R.I. LEXIS 70 (R.I. 1949).

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Opinion

Condon, J.

This is an action of assumpsit in which, on defendant’s motion at the conclusion of plaintiff’s evidence, the superior court adjudged him nonsuit. Plaintiff is seeking a new trial and has brought the case here on his bill of exceptions containing an exception to such ruling and also an exception to the denial of his motion to take the *496 case from- the jury with leave to him to amend his declaration.

Nathan Perlman, for plaintiff. Ralph Rotondo, Michael Addeo, for defendant.

These exceptions have been fully briefed and argued but upon consideration we are of the opinion that a review by this court of either ruling is unnecessary. Apparently plaintiff realized that his declaration was not consistent with the evidence and desired another trial "under a new declaration. Had his motion been granted that is all he could have obtained. However, he has the right to do that now without any action by us. A compulsory non-suit under our practice is not res adjudicata. Sullivan v. John R. White & Son, Inc., 36 R. I. 488. It is no bar to a subsequent action. Robinson v. Merchants’ & Miners’ Transportation Co., 16 R. I. 637. Even though the time within which an action could be commenced originally may have expired, a new action for the same cause can be brought within one year after a compulsory nonsuit. Pesce v. Mondare, 30 R. I. 247.

Plaintiff thus has the statutory right to obtain the same result. as if we were to sustain his exceptions. In such circumstances the questions raised by those exceptions in our judgment are merely academic.

The plaintiff’s exceptions are overruled pro forma, and the case is remitted to the superior court for entry of judgment for the defendant.

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Condon, J.

This is an action of assumpsit in which, on defendant’s motion at the conclusion of plaintiff’s evidence, the superior court adjudged him nonsuit. Plaintiff is seeking a new trial and has brought the case here on his bill of exceptions containing an exception to such ruling and also an exception to the denial of his motion to take the *496 case from- the jury with leave to him to amend his declaration.

Nathan Perlman, for plaintiff. Ralph Rotondo, Michael Addeo, for defendant.

These exceptions have been fully briefed and argued but upon consideration we are of the opinion that a review by this court of either ruling is unnecessary. Apparently plaintiff realized that his declaration was not consistent with the evidence and desired another trial "under a new declaration. Had his motion been granted that is all he could have obtained. However, he has the right to do that now without any action by us. A compulsory non-suit under our practice is not res adjudicata. Sullivan v. John R. White & Son, Inc., 36 R. I. 488. It is no bar to a subsequent action. Robinson v. Merchants’ & Miners’ Transportation Co., 16 R. I. 637. Even though the time within which an action could be commenced originally may have expired, a new action for the same cause can be brought within one year after a compulsory nonsuit. Pesce v. Mondare, 30 R. I. 247.

Plaintiff thus has the statutory right to obtain the same result. as if we were to sustain his exceptions. In such circumstances the questions raised by those exceptions in our judgment are merely academic.

The plaintiff’s exceptions are overruled pro forma, and the case is remitted to the superior court for entry of judgment for the defendant.

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Bluebook (online)

67 A.2d 702, 75 R.I. 495, 1949 R.I. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zidack-v-elbag-ri-1949.