Opinion
July 17, 1967.
PRESENT: Roberts, C.J., Paolino, Powers, Joslin and Kelleher, JJ.
EXCEPTIONS. Decision on Demurrer. Basis for Appellate Review. Final Decision. Where demurrer was sustained only in part and at least one count was held not demurrable the action was still pending in superior court and the decision of that court was not a final one from which an exception could be prosecuted prior to trial.
TRESPASS ON THE CASE for negligence, before supreme court on bill of exceptions filed by plaintiffs following decision on defendant's demurrer to the declaration entered by Murray, J., of superior court, heard and exception in each case overruled, and cases returned to superior court for further proceedings in accordance with opinion.
Brosco Brosco, A.J. Brosco, for plaintiff.
Gunning LaFazia, John McDonough, Edward L. Gnys, Jr., for defendant.
These two actions of trespass on the case for negligence were heard on the defendant's demurrers on December 11, 1964 by a justice of the superior court. Said demurrers were "* * * sustained in part overruled in part," and the plaintiffs were given four weeks in which to amend. From this decision the plaintiffs prosecuted a bill of exceptions to this court in each case.
These exceptions must be overruled. The decision of the trial justice as it appears on the jackets of the cases notes that the actions were "Heard on dfdts dem to 5th amended declaration and same is sustained in part overruled in part. 4 wks." In Frigon v. Warner, 80 R.I. 363, 97 A.2d 276, the court was presented with the same question, that is, whether the decision of the court below was a final decision from which an exception could be prosecuted in this court before trial on the remaining counts in the superior court. There we said: "The cause of action itself was still pending in the superior court on issues proffered by the first count. Therefore in our opinion the ruling in question is not a final decision which by operation of law would determine in that court the entire cause of action on the merits." We think this is conclusive of the issue raised in the instant case.
We are aware that the trial justice did not specify the counts of the declaration that were held not demurrable, but from the briefs we are persuaded that at least count one was held not demurrable. In these circumstances it is our opinion that the decision was not a final decision from which an exception could be prosecuted prior to trial.
The exception of the plaintiff in each case is overruled, and the cases are returned to the superior court for further proceedings in accordance with this opinion.