
    Simon Menzoian vs. Kaspar D. Johnson.
    MARCH 3, 1937.
    Present: Plynn, C. J., Moss, Baker, and Condon, JJ.
   Per Curiam.

After the filing of our opinion herein, the defendant, by leave of court, filed a motion for reargument. In such motion he has brought to our attention one matter not heretofore raised or argued, namely, the increasing by the Superior Court of the ad damnum in the. writ. The record shows that on April 19, 1933, the plaintiff filed a written motion requesting such increase. On the jacket of the instant case the following entry appears, which antedates the trial reviewed in our recent opinion: “1933, April 29. Walsh, J. Pltff. allowed to increase ad damnum to $6,000.”

The defendant contends that this motion was granted without his knowledge and without proper notice to him.

This action of the Superior Court is now questioned for the first time by the defendant’s motion to reargue. No objection was made by him or his attorney at the time the jury returned its verdict, which was larger than the original ad damnum, and no request for any action on the part of the trial justice was then made nor any exception taken. When the defendant took steps to prosecute his bill of exceptions to this court and had the same allowed by the Superior Court, the point was not referred to. A comprehensive brief was filed in this court on behalf of the defendant and the case was fully argued orally, but no reference to the amount of the ad damnum was made.

Sarkis Tatarian, Walter J. Hennessey, for plaintiff.

Knauer & Fowler, Philip S. Knauer, Philip S. Knauer, Jr., Daniel H. Morrissey, Luigi De Pasquale, for defendant.

In our judgment, this question now raised by the defendant is not properly before us on the record herein. Further, in Colagiovanni v. District Court, 47 R. I. 323, substantially the same issue was before this court on certiorari as the defendant is now seeking to present on this motion for reargument. The court, after a full discussion of the matter, particularly with reference to the effect to be given record entries relating to the proceedings, quashed the writ. In view of that holding, and the state of the record in and the travel of the instant case, we are of the opinion that the defendant is not entitled to any reargument by reason of the action of the Superior Court in relation to increasing the ad damnum in this case.

Other points set out in the defendant’s motion to re-argue contain no matter which was not fully considered and passed upon before the opinion herein was filed.

The motion for reargument is, therefore, denied and dismissed.  