
    Joseph C. Moore vs. James W. Stillman.
    NOVEMBER 15, 1907.
    Pkbsent: Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.
    (1) Defaulted, Cases. New Trial. Accident and Mistake.
    
    Where a motion to remove a default under § 428, C. & P. A., has been granted by the Superior Court under conditions with which defendant has not complied, the Supreme Court, under § 471, C. & P. A., can not entertain a motion for a trial. The Superior Court has concurrent jurisdiction with the Supreme Court of the matter, and, its jurisdiction having been invoked, its decision is conclusive.
    Petition for Trial under C. & P. A., § 471.
    Denied.
   Johnson, J..

Petition for a trial under section 471 of the court and practice act.

The principal case being in order for trial in the Superior Court, the defendant was, on January 22d, 1907, called and defaulted, and damages were -assessed by the court. The defendant applied to the Superior Court, under § 428, C. & P. A., to set aside the default and reinstate the case, and on February 2d, 1907, his .motion was granted under certain conditions with which he has not complied. He now comes to this court on a petition for a trial, under § 471, C. & P. A., on the ground of mistake in that he understood that the case would not be brought to trial before January 23d, 1907.

After default the defendant could apply to the court where the judgment of default was rendered to set aside the same and reinstate the cause, as he did, or he could petition this court for a trial. But because he could do either of these things, it by no means follows that he could do both.

In Curry v. Swett, 13 R. I. 476, the plaintiff, after a default in the Court of Common Pleas, presented to said court a petition for a new trial, under Gen. Stat. cap. 210, § 9, alleging that his not appearing to prosecute resulted from accident or mistake, which petition was heard and dismissed and judgment entered for the defendant for costs. He then presented a petition to the Supreme Court for a new trial, upon the same grounds. A new trial was denied and the petition was dismissed, the court saying: "Under cap. 210, § 9, the Court of Common Pleas has jurisdiction concurrently with this court oyer petitions for new trial of the kind there designated, and, therefore, after a new trial has been refused by that court, we have no more right to grant it, unless new grounds are alleged, than that court would have after it had been refused by this court. A decision by either court is conclusive.”

In Kinkead v. Keene, 22 R. I. 336, after a default in the Common Pleas Division, a petition to take off the default, under Gen. Laws cap. 246, § 2, was heard and denied by said Common Pleas Division.

The defendant then presented a petition to the Appellate Division for a trial, on the ground of accident, mistake, or unforeseen cause. This petition was dismissed, the court saying: "In Gen. Laws cap. 251, § 2, providing for new trials for other grounds and for the period of a year after judgment, the case of a default is also included. Hence, for the first six months, both divisions have concurrent jurisdiction in cases of default.” Speaking of the power of the Court of Common Pleas under previous statutes, e. g., Pub. Stat. cap. 221, § 9, "to grant a trial” in such case, the court said: "Although that is a different term, there is no difference in effect between that language and that of the present statute, which is 'to set aside the same and re-instate the case.’ This is granting a trial.”

The case of a default is included among other grounds for a trial in § 471, C. & P. A., as in Gen. Laws cap. 251, § 2; and § 428, C. & P. A., is the same as Gen. Laws cap. 246, § 2.

These cases are decisive of the question before us. We certainly have no greater power to grant a trial to the party defaulted, where his motion to take off the default has been granted upon conditions with which he has not complied, than we would have where such motion had been denied. The Superior Court had jurisdiction of the matter concurrently with this court, and, its jurisdiction having been invoked, its decision is conclusive.

John W. Sweeney, for plaintiff.

James W. Stillman, for himself.

The defendant in his petition alleged several grounds based upon the merits of the principal case. But, as was said by-Douglas, C. J., when this case was before us upon a petition to establish a bill of exceptions, 28 R. I. 298: “A judgment by default does not involve the merits of the case. The issues of fact or law therein are not decided. The default is based solely upon the fact that, whatever case the party had, he did not appear at the proper time to present it; and the remedy which a party has after default is only incidentally dependent upon the merits of the case.”

The petition is dismissed.  