Opinion
April 22, 1931.
PRESENT: Stearns, C.J., Rathbun, Sweeney, Murdock, and Hahn, JJ.
( 1) New Trial. Motion on Ground of Newly Discovered Evidence, Unsupported by Affidavits. Exceptions. Where in a case heard by the court without a jury, decision was given and defendant filed motion for new trial on ground of newly discovered evidence, within seven days after the filing of the rescript giving decision, but motion was not supported by affidavits, inasmuch as the motion when filed was a valid motion, the time for filing notice of intention to prosecute a bill of exceptions was seven days after decision on the motion and the failure to file affidavits did not render the motion bad, ab initio
ASSUMPSIT. Heard on motion to dismiss defendant's bill of exceptions and motion denied.
Peter W. McKiernan, John C. Going, Ernest L. Schein, for plaintiff.
Fergus J. McOsker, for defendant.
This is a motion to dismiss the defendant's bill of exceptions. The case was heard by a justice of the Superior Court, sitting without a jury, who reserved decision and sometime later filed a rescript giving decision for the plaintiff. No exception to this decision was taken. Within seven days after the filing of the rescript the defendant filed a motion for a new trial on various grounds, including the ground of newly discovered evidence, which was the only ground on which the Superior Court has jurisdiction to entertain a motion for a new trial in a case heard without a jury. Sec. 13, Chap. 348, G.L., 1923. Thrift v. Thrift, 30 R.I. 456. The defendant filed no affidavits in support of her motion for a new trial on the ground of newly discovered evidence.
The plaintiff relies on Thrift v. Thrift, supra. In that case the motion for a new trial was not for newly discovered evidence. The motion was therefore a mere nullity and the provisions of Section 17, Chapter 348, General Laws, 1923, allowing seven days after denial of a motion for a new trial within which to file notice of intention to prosecute a bill of exceptions did not apply. In the instant case one of the grounds for the motion for a new trial being that of newly discovered evidence, the Thrift case, supra, is not in point. So much of said Section 17 as is pertinent is as follows: "Within seven days after verdict or notice of decision, but if a motion for a new trial has been made, then within seven days after notice of decision thereon ___________________ shall file in the office of the clerk of the superior court notice of his intention to prosecute a bill of exceptions to the supreme court."
This case is governed by Murad v. N.Y., N.H. H.R.R. Co., 34 R.I. 312. In that case the only valid ground offered in support of the motion for a new trial was that of newly discovered evidence. No affidavits in support of this motion were filed and the motion was therefore denied. It was held that inasmuch as the motion was when filed a valid motion for a new trial the time for filing notice of intention to prosecute a bill of exceptions was seven days after the decision on said motion as provided by the statute and that the failure to file affidavits in support of the motion for a new trial on the ground of newly discovered evidence did not render the motion invalid ab initio. See also Davis v. James Brown Machine Co., 84 A. 740.
The motion to dismiss is denied.