Maher v. James Hanley Brewing Co.

Full title: SARAH MAHER vs. JAMES HANLEY BREWING COMPANY

Court: Supreme Court of Rhode Island. PROVIDENCE

Date published: Nov 18, 1901

23 R.I. 343 (R.I. 1901)

50 A. 392

Opinion

November 18, 1901.

PRESENT: Stiness, C.J., Tillinghast and Rogers, JJ.

(1) Landlord and Tenant. Misjoinder of Parties. New Trial. Verdicts. A party defendant cannot procure a new trial on the ground of misjoinder of parties plaintiff, since Gen. Laws cap. 233, § 23, provides that no action shall be defeated by misjoinder of parties and that the misjoined party may be dropped at any state of the case. The only question, therefore, is whether the verdict should have been in favor of one party or both.

(2) Landlord and Tenant. Ejectment. Attornment. Where a lease is given while the premises are in the possession of another under a tenancy, without attornment, the owner is the proper party to give notice to quit and to sue in ejectment.

TRESPASS AND EJECTMENT. Heard on motion to re-argue petition for new trial decided in 23 R.I. 323. Motion denied.

John Doran, for plaintiff.

Charles E. Gorman, for defendant.

PER CURIAM.

The requests to charge upon the questions of joint interest were immaterial, and hence not a ground for a new trial, because the statute, Gen. Laws R.I., cap. 233, § 23, provides that no action shall be defeated by a misjoinder of parties. If the action could not be defeated by misjoinder, the only question is whether the verdict should have been in favor of one party or both. This is not a matter which could result in a new trial, for, under the statute, the misjoined party "may be dropped at any stage of the case as justice may require," and it thus affords an ample remedy to a defendant if a joint judgment would result in disadvantage.

The case is similar to Comstock v. Cavanagh, 17 R.I., 233, in which it was held that where a lease is given while the premises are in the possession of another under a tenancy, without attornment, the owner is the proper party to give notice to quit and to sue in ejectment. Hence the Park Brewing Company is not a proper party to this case.

The petition for re-argument is denied, and case remitted to the Common Pleas Division with instructions to drop the Park Brewing Company from the case.