Opinion
March 26, 1895.
Under the practice in this State a party whose demurrer has been overruled is entitled to plead over. Where a demurrer to a declaration has been overruled by the Appellate Division, a refusal by the Common Pleas Division to permit the filing of a second demurrer would be correct. Where, however, defendants whose demurrer to a declaration had been overruled were refused permission by the Common Pleas Division to file what was in fact a plea though styled a second demurrer, the Appellate Division granted the defendants a new trial so that they might file their plea.
DEFENDANTS' petition for a new trial.
This cause was before the court on a former occasion on demurrer to the declaration. 18 R.I. 749.
Harry C. Curtis, for plaintiff.
Hugh J. Carroll, for defendants.
We are of the opinion that a new trial should be granted in order to permit the defendants to file their plea that the estate of the deceased had been declared insolvent and the proceedings thereon. The defendants styled their plea a second demurrer instead of a plea, though it was in fact a plea. The circumstance that the plea was styled a second demurrer apparently misled the Common Pleas Division. If it had been a second demurrer the action of the court in declining to permit it to be filed would have been correct; but as it was a plea the defendants should have been permitted to file it. Their demurrer having been overruled they were entitled under our practice to plead over.