47 A. 887 | R.I. | 1901
The petitioner shows no ground for a new trial. Assuming the alleged accident, mistake, or unforeseen cause as set forth in the petition, it appears from uncontradicted affidavits that the petitioner's attorney had notice of the default, and the record shows that a motion to take off the default was heard and denied in the Common Pleas Division, which had jurisdiction of the matter under Gen. Laws, cap. 246, § 2.
In Gen. Laws, cap. 251, § 2, providing for new trials for other grounds and for the period of a year after judgment, *337 the case of a default is also included. Hence, for the first six months, both divisions have concurrent jurisdiction in cases of default.
Under previous statutes, e.g. Pub. Stat. cap. 221, § 9, the Court of Common Pleas had power "to grant a trial" in such case. Although that is a different term, there is no difference in effect between that language and that of the present statute, which is "to set aside the same and re-instate the case." This is granting a trial.
In Curry v. Swett,
We are, therefore, of opinion that the petition must be dismissed.
We may, however, add that in view of the undisputed evidence of the petitioner's acquiescence in the sale of his property, and the lack of apparent defence to the case on its merits, we should have reached the same conclusion upon other grounds.