Opinion
December 3, 1904.
PRESENT: Tillinghast, C.J., Douglas and Dubois, JJ.
(1) New Trials. Review of Judgment of Common Pleas Division. Defaulted Cases. Assessment of Damages. After judgment by default and assessment of damages by a single justice, a petition for new trial, brought under Gen. Laws cap. 251, § 6, will not lie. The Appellate Division has no authority to review a judgment of the Common Pleas Division except as provided in section 2 of chapter 251 of the General Laws.
TRESPASS ON THE CASE for negligence. Heard on petition of defendant for new trial and denied.
Comstock Gardner, for plaintiff.
Henry W. Hayes, Frank T. Easton, Lefferts S. Hoffman, and Alonzo R. Williams, for defendant.
The defendant in this case submitted to a default in the Common Pleas Division February 26, 1904, and damages were assessed on Saturday, March 19, 1904, by one of the justices assigned to that division, sitting in chambers. The defendant now brings to this division a petition for a trial upon various grounds, all of which are abandoned except the contention that the damages as assessed are excessive. In effect, the defendant asks only for a re-assessment of damages.
In the case of Blaisdell v. Harvey, 25 R.I. 572, we expressed a doubt whether a petition for a new trial could be entertained in such a case; and a further examination of the statute confirms our first impression that this division has no authority to review a judgment of the Common Pleas Division, except as provided in section 2 of chapter 251 of the General Laws; but this petition is brought in the method prescribed in section 6 and can only be sustained for the causes referred to in section 5 of that chapter. The whole scheme of this system of procedure is to interpose the review of the Appellate Division between the verdict or the decision of the case and the final judgment; after final judgment on the merits of the case, no further review is provided. The only exceptions to this rule are "suits for flowage caused by mill-dams, or proceedings of like nature, or proceedings for assessment of damages for taking of property," the latter clause evidently referring to the taking of property by the right of eminent domain. In these exceptional cases an interlocutory judgment precedes the final assessment, and so it was necessary to enumerate them in this section if it were intended that these assessments should be subject to review. In case of default or submission, judgment ensues at once (Gen. Laws, cap. 243, § 5), and there is no longer any issue in the case which can be retried. Dyson v. Rhode Island Company, 25 R.I. 600. If it had been intended to subject the assessment of damages in a defaulted case to the review of this division it would have been expressed in the statute.
In a similar case the Court of Appeals of New York refused to review the action of the Supreme Court in affirming an assessment of damages in a defaulted case, on the ground that the statute providing for new trials did not apply to an inquest of damages. Bossout v. R.W. O.R.R. Co., 131 N.Y. 37.
Petition dismissed.