ELIZABETH M. MCLAUGHLIN vs. ANNA E. DUNLOP, Ex‘x.
SUPREME COURT OF RHODE ISLAND
MAY 31, 1944
Reargument Denied July 3, 1944
Flynn, C. J., Moss, Capotosto, Baker and Condon, JJ.
On June 5, 1944, the parties may present to this court for approval a form of decree, in accordance with this opinion, to be entered in the superior court.
Haslam, Arnold & Sumpter, Erving T. Arnold, for complainant.
Stockwell, Chace & Yatman, Ellis L. Yatman, for respondents George W. Richardson and Louis D. Richardson, Jr.
Roger L. McCarthy for respondents R. I. Society for the Prevention of Cruelty to Children and the Salvation Army.
John H. Nolan, Atty Gen., Archie Smith, Asst. Atty. Gen., for State.
CONDON, J. This is an action of assumpsit brought against the defendant as executrix of the will of Edwin G. Dunlop to recover on a promissory note made by him to the plaintiff. The case was tried before a justice of the superior court sitting without a jury and resulted in a decision for the plaintiff. Defendant has brought the case here on her exception to that decision.
The facts briefly are these: Edwin G. Dunlop borrowed the sum of $2000 from the plaintiff аnd gave her his promissory note therefor. That note was dated September 22, 1930, and payable one year from date. On September 22, 1931 a new note was issued in renewal of that note and was also payable to the plaintiff one year from its date. Plaintiff claimed that this notе was never paid but that interest was paid thereon semiannually to and including March 22, 1937. At the next interest date further payment of interest was refused by the defendant, first, because plaintiff declined to produce the note for defendant‘s inspection; and, second, because dеfendant claimed that the note had been paid. Plaintiff thereupon demanded payment of the note which was refused.
Because Edwin G. Dunlop had died on October 19, 1935, and Anna E. Dunlop, his wife, had qualified as the executrix of his will and had made her first publication of such quali
That amended petition was filed after the above claim had been filed. The probate clerk, who was a witness at the trial in the superior court, testified positively to that effect. Such petition was filed under the second proviso of
Upon the disallowance of her claim plaintiff brought suit on it in the superior court, which suit was tried in that court on January 21, 1943. At the conclusion of the evidence defendant moved for a nonsuit, which was granted over the
At the trial of this action in the superior court defendant relied upon the general issue and upon one of five special pleas, which she had filed, namely, that the note of September 22, 1931, as set out in plaintiff‘s claim and sued upon, was not the note set out in the claim which the probate court permitted her to file out of time. The trial justice found as a fact from the records of the probate court, which were in evidence, аnd the testimony of the clerk of that court, that plaintiff‘s petition for leave to file a claim out of time referred to a claim which was based on a note of the deceased for $2000 dated September 22, 1931; and he therefore overruled defendant‘s first special plea.
We have carefully read the transcript and inspected such probate records and we cannot say that the trial justice was clearly wrong in making such finding. Defendant‘s counsel has ably presented every possible argument to support his position. In addition, however, hе has ingeniously, but we think ill-advisedly, sought to raise doubts as to the authenticity of the plaintiff‘s claim, which was filed in pursuance of the permission granted to her, by contending that the date of the note referred to in the claim has been altered by changing the cipher in the year 1930 to the figure 1, thus аltering the date of the note from September 22, 1930 to September 22, 1931. Whether or not counsel is correct in that contention cannot help the defendant in this court. There is no evidence in the record tending to prove such alteration and no contention was made in thе superior court that the document which was admitted in evidence as an exhibit had been tampered with. Defendant‘s suggestion in this regard, however forcibly made here for the first time, is merely argument and cannot be made to supply the place of evidence.
Moreover, even though there was such an alteration as is claimed, that fact alone would not necessarily affect the
Defendant contended both in the superior court and in this court that plaintiff‘s suit was barred by reason of the special statute of limitations governing suits on disallowed claims.
In the instant case the plaintiff objected to the granting of defendant‘s motion for a nonsuit. She admits that she did file a notice of intention to prosecute a bill of exceptions and that she voluntarily thereafter withdrew such notice and never prosecuted such exceptions, but contends that such action did not place her beyond the benefit of §9. In support of that contention she cites Sullivan v. White, 36 R. I. 488. That case is clearly in point. There plaintiff had actually filed his bill of exceptions and later voluntarily withdrew it. This court pointed out that this did not deprive the plaintiff of the benefit of the statute, as that could result only from his voluntary action in bringing about the nonsuit in the first place and not from such action in discontinuing appellate proceedings for review of an involuntary nonsuit. The trial justice, in the case at bar, relied upon the above-cited authorities in ruling in favor of the plaintiff and we are of the opinion that he did not err.
There remains, for discussion, only the defendant‘s contention that the trial justice was clearly wrong in finding that defendant had not proved payment of the note set out in plaintiff‘s claim and sued upon here. The trial justice in his rescript states that the defendant did not deny that the note of September 22, 1931, which was proved and admitted in evidence, was genuine but she contended that it was paid. This defense, he observed, was an affirmative one which defendant was required to рrove by a fair preponderance of the evidence. He found that she had not sustained that bur
We have read the transcript and we are of the opinion that there is nothing therein which would justify us in saying that the trial justice‘s finding was clearly wrong. In fact, as we read defendant‘s testimony it has little, if any, probative force to prove her contention that this particular note was paid, or, indeed, to prove that she ever, until after she had made the last payment of interest on March 22, 1937, acted as though it was paid. Summed up, her testimony amounts to no more than an attempt to cast doubt and suspicion upon this note as an independent note and to connect it in some more or less indefinite way with a mortgage which, she claims, was paid in 1932 but was not discharged of record until 1934. Such testimony scarcely rises to the dignity of proof of payment, and the trial justice did not err in disregarding it.
Defendant‘s exception is overruled, and the case is remitted to the superior court for entry of judgment on the decision.
ON MOTION FOR REARGUMENT
JULY 3, 1944.
PER CURIAM. After our opinion in this case was filed, defendant, with leave of court, filed a motion for reargument. In her motion she states that we apparently overlooked her contention that the plaintiff was not entitled to claim the benefit of
The last sentenсe of §10 reads as follows: “The provisions of this chapter shall not apply to any case in which a different time is limited by special provisions.” Clearly that sentence means that the provisions of this chapter limiting the time within which suits may be brought shall not apply where a different time is limitеd by special provisions. In other words, it does no more than say that in such case a special statute of limitation shall apply rather than this general statute of limitations. But §9 is not a statute of limitation. Rather it is a relief statute. And it was clearly intended to provide relief to any рlaintiff who had originally complied with the statute of limitations governing his case. The very first words of the section establish this beyond question. They are: “If any action which has been or shall be duly commenced within the time limited and allowed therefor, shall be abated . . . .” (italics ours) This statute is remedial and should be liberally construed. Robinson v. Merchants’ & Miners’ Transportation Co., 16 R. I. 637. It should not be construed to apply only to suits which may be brought within the time limited by chap. 510.
Defendant‘s contention might have been made with much more force if the language of §9 read as it did prior to the enactment of
Without further discussion it should now be clear that we have considered and rejected defendant‘s contention that §10 deprives the plaintiffs of the benefits of §9.
Motion denied.
George F. Treanor, for plaintiff.
Charles R. Easton, for defendant.