82 A. 227 | R.I. | 1912
This case is before us upon the defendant's motion to dismiss the plaintiff's bill of exceptions so far as the same relates to the plaintiff's exception taken at the trial to the ruling of the justice of the Superior Court directing a verdict for the defendant upon the first count of the declaration. The action is one of trespass on the case to recover damages for injuries alleged to have been caused by the defendant's dog while out of the inclosure of the defendant. *461 The first count alleges that while the plaintiff was driving upon a public highway in the town of Bristol, the defendant's dog bit the plaintiff's horse, which the plaintiff was driving, attached to a wagon in which the plaintiff was riding; that thereby the plaintiff's horse was caused to run away and the plaintiff was thrown from the wagon and severely injured. The second count alleges the biting and wounding of said horse by the plaintiff's dog, whereby the said horse was severely injured.
At the trial, upon the conclusion of the testimony, the justice presiding directed the jury to return a verdict for the defendant upon the first count of the declaration to which ruling the plaintiff excepted; upon the second count of the declaration, after deliberation, the jury returned a verdict for the plaintiff for five dollars. Within seven days after the verdict, the plaintiff filed a motion for a new trial, addressed to the Superior Court, and also upon the same day the plaintiff filed a notice of his intention to prosecute a bill of exceptions to the Supreme Court upon his exception to the ruling of said justice directing a verdict for the defendant upon the first count of the declaration, and a time was fixed by the justice for filing such bill of exceptions. In filing said notice of intention to prosecute a bill of exceptions the plaintiff misconceived the procedure provided by statute for bringing exceptions to this court. The plaintiff apparently did not intend to rely entirely upon his exception to the ruling directing a verdict upon the first count, but he also desired to question the adequacy of the damages assessed by the jury upon the second count. To raise the latter question it was necessary for him to file his motion for a new trial in the Superior Court, as he did. Under the provisions of Chapter 298, § 17, Gen. Laws, 1909, in case a party files a motion for a new trial, his notice of intention to prosecute a bill of exceptions shall not be filed until after notice of decision upon said motion for a new trial. The intention of the statute is that the proceedings for bringing exceptions to this court shall be commenced after the final *462 decision of the Superior Court in the case, in order that all the exceptions of a party, taken throughout the travel of the case in the Superior Court, upon which he relies, may be embodied in one bill of exceptions, to be presented at one time to this court.
The plaintiff failed to file his bill of exceptions upon his exception to the ruling of said justice directing a verdict for the defendant upon the first count at the time fixed by said justice for filing said bill of exceptions. Later the justice of the Superior Court denied the plaintiff's motion for a new trial, and within seven days after notice of such decision the plaintiff gave notice of his intention to prosecute a bill of exceptions to this court. Within the time fixed by the justice upon this notice, the plaintiff filed his bill of exceptions, which is now pending here. In this bill, among other exceptions, the plaintiff states his exception to the ruling of the justice directing a verdict for the defendant upon the first count. The defendant, in the motion now before us, moves that said bill be dismissed so far as it relates to that exception. The defendant contends that the plaintiff by filing his notice of intention to prosecute a bill of exceptions upon that specific exception and failing to file such bill within the time fixed by the justice, has lost his right to be heard upon that exception. We are of the opinion that the plaintiff's notice of intention to prosecute a bill of exceptions first filed was prematurely given, that it was entirely ineffectual. If the plaintiff had proceeded under it and filed his bill of exceptions as directed by the justice, such bill should have been dismissed. The action of the plaintiff in that respect may be disregarded. In preparing the bill of exceptions now pending in this court the plaintiff properly included in the bill a statement of the exception in question, as one upon which he now relies. The defendant's motion should be denied unless there be force in his second contention.
The defendant claims, secondly, that the incorporation of the exception in question in plaintiff's bill of exceptions *463
is idle and nugatory, because the plaintiff by filing his motion for a new trial waived his exception to the direction of a verdict upon the first count of the declaration. If this claim is sound the plaintiff is placed in an unfortunate position; for under the statute he cannot be permitted to bring the exception in question to this court until after a decision upon his motion in the Superior Court for a new trial, if he makes such a motion; he cannot raise his objection to the finding of the jury upon the second count unless he prosecutes his motion for a new trial in the Superior Court; and, it is claimed, if he files such a motion for a new trial, he has thereby waived the exception in question. The defendant urges this claim upon the authority of Barstow v.Turner,
Barstow v. Turner has no application in the case at bar. The ruling in question to which the plaintiff excepts was not made upon his motion to direct a verdict in his favor, but was a ruling granting the defendant's motion to direct a verdict against the plaintiff. The ruling of the justice related to one count of the declaration only. The other count was left to the determination of the jury and the jury's verdict upon the second count, which was unsatisfactory to the plaintiff, is, in part at least, the subject of the plaintiff's motion for a new trial. Furthermore, the plaintiff's motion for a new trial was not granted, but was denied.
The defendant's motion to dismiss is denied.