118 A. 737 | R.I. | 1922
The above entitled case is before us upon exceptions to the action of the Superior Court denying the defendant's motion "that the default be removed and said case reinstated for trial."
It appears from the record in this cause that in the Superior Court on March 20, 1922, the defendant was called and defaulted, and on the same day judgment was entered for the plaintiff upon said default. On the following day the defendant filed the motion now under consideration which was denied by the Superior Court, to which action the defendant excepted. We assume that by said motion the defendant sought to avail itself of the relief afforded by Section 2, Chapter 294, General Laws, 1909, which section provides that in case of judgment by default the court entering the same shall have control over the same for the period of six months after the entry thereof and may for cause shown set aside the same and reinstate the cause.
The power conferred on the courts in this section is in its nature, and in regard to the restrictions which should govern its exercise, identical with the power given this court to grant a trial in the Superior Court or in any district court under the provisions of Section 1, Chapter 297, General Laws, 1909. During six months after judgment by default the jurisdiction to grant relief is concurrent in this court and the Superior Court or any district court in which such judgment has been entered. Curry
v. Swett,
An examination of the record of the proceeding in the Superior Court upon this motion shows no abuse of the discretion of that court. The finding of said justice was justified, that the defendant had failed to present adequate cause for setting aside the judgment by default.
The plaintiff claimed before us that the defendant was without standing upon its motion, because it did not accompany the same with an affidavit setting out the defense which it was prepared to present in case there should be a reinstatement of the cause. It appeared in the argument before us, and also in the record of the proceedings below, that the practice in the Superior Court upon petitions for relief under said section has been affected by a misinterpretation of the opinion of this court in Bank v. Inman,
The defendant's exception is overruled. The cause is remitted to the Superior Court for further proceedings following the judgment.