31 A. 823 | R.I. | 1895
This is an action of account brought in the District Court of the Sixth Judicial District. After the interlocutory judgment that the defendant account had been entered, an auditor was appointed to state the account. The auditor filed his report January 5, 1895. On January 10, 1895, the court rendered judgment for the plaintiff in conformity to the report for $287.57 and costs, including $25 for the auditor's fee. The defendant on April 11, 1895, filed her petition for a new trial, alleging that the court erred in entering the judgment instead of noting its conclusions of law and fact or decision, thereby depriving her of the right to claim a jury trial or to take exceptions to the report.
We think that the court erred in entering its judgment on *109
January 10, 1895, instead of noting its decision. Lavelle v.Kimball,
The petition alleges that the report is erroneous on its face because it charges the defendant with the rents and profits of the estate from October 19, 1883, to December 19, 1894, contrary to the statute of limitations by which, as the defendant claims, the accounting should have been limited to the six years next preceding the bringing of the suit, to wit, six years from April 27, 1888: The record, however, does not show that the statute of limitations was pleaded as required by the Judiciary Act, cap. 17, § 3,1 if the defendant wished *110 to avail herself of the defence of the statute. In the absence of such a plea, the auditor had no alternative but to take the account for the entire period prior as well as subsequent to the six years next preceding the bringing of the suit. His account so taken is not erroneous.
The petition also alleges that the report is erroneous because it charges the defendant with rent for the portion of the estate occupied by her, such portion being less than the share of said defendant as a cotenant with the plaintiff in the estate. The plaintiff's interest in the estate, as was agreed, is one sixteenth. The defendant had received the entire rents and profits of the estate. The auditor, having ascertained the gross rents and profits so received and deducted the sums properly allowable to the defendant for taxes, insurance, repairs, c., allowed one sixteenth of the sum remaining to the plaintiff. There is nothing on the face of the report to indicate any unfairness toward the defendant or that the amount reported in favor of the plaintiff is any greater than he is entitled to receive.
Petition denied and dismissed.
SEC 3. The entry of appearance by the defendant in any case in a district court, shall be equivalent to filing the plea of the general issue; and if said case be tried in the district court, the defendant shall, on or before the day one week after the return-day, concisely plead any special defences of law or fact which he may desire to plead. If no special defences be pleaded, the defendant shall be restricted to such matters as may be shown under the general issue, or its equivalent.