Procaccianti v. Procaccianti

The writ in this case is unquestionably directed to Giuseppe Procaccianti in his individual capacity. The words "Executor of the Estate of Rudolph Procaccianti" appended to defendant's name are in law merely descriptio personae and must be treated as surplusage. De Cesare v. Bedrosian, 67 R.I. 430; Carney v.Hawkins, 34 R.I. 297; Gilbane v. Hawkins, 29 R.I. 502. In each of those cases this court held as a matter of law that similar descriptive language could not furnish a basis for construing the writ as having been issued against the defendant in his representative capacity. There is no suggestion in any of them that it was a question of fact whether, in connection with other facts or circumstances appearing outside the writ, such appended language imported something more than mere description.

If on account of conflicting language in the declaration we are now to say that it is a question of fact whether the language in the writ is or is not merely descriptio personae, it would be the jury's province and not the court's to resolve it. Manifestly it is neither a question of fact nor a question of mixed law and fact suitable to submit to a jury but a pure question of law for the court. As such this court long ago answered it by holding language thus appended to the name of a defendant in the writ to be merely descriptio personae.

In the case at bar the plaintiff did not declare against the defendant in the language of the writ but averred that she was suing him as the representative of the estate of Rudolph Procaccianti on a claim which she alleged she had against the estate. Having thus departed from her description of the defendant in the writ she did not seek to amend it to make it conform to the averments of her declaration. Of course if she had done so her motion to amend could not properly have been granted.Carney v. Hawkins, supra. To permit an amendment of that kind would, as was said in that case at page 303, be to transform the original suit commenced by the writ into "a different cause of action against a party not the defendant in the original suit * * *."

No matter how indulgently we may view the pleading of the plaintiff in the case at bar we cannot escape the fact that there is an obvious variance between her writ and declaration. Unless we are going to overrule the above-cited cases sub silentio we ought not to sanction the course of pleading followed by the plaintiff here. As long as those cases stand as authority for what was decided therein as distinguished from isolated passages of the opinions of the court which may be tortured into something different from the decisions, we cannot properly avoid holding that there is a fatal variance here between the writ and the declaration.

Adhering to the established principles of common-law pleading as I must under the practice in this state, I hold that there was such a variance and that the trial justice erred in not directing a verdict for the defendant. I concede that in many if not most of our sister states where the system of common-law pleading has been supplanted by the so-called code procedure or has been otherwise radically modified by statute this view might not be tenable, but in this state where, except for a few mild statutory modifications of its more rigorous rules, that system has been retained in much of its pristine purity, I think such view is inescapable.

Under that system of pleading it is elementary that the writ is the foundation of the action and that in all essential particulars as to the parties and the cause of action the declaration must conform thereto. At common law and with us the issuance of the writ marks the commencement of the action and it is served upon the defendant before the declaration is filed. The original writ may, but need not, contain the declaration. Except in a few actions such as on simple contract, the common counts, or on book account originating in the district courts, the declaration is usually filed in court on the return day of the writ as was done in the case at bar. This is very unlike the practice under the code procedure where there is but one form of action and it is commenced by the filing of a complaint in the office of the clerk of court after which a summons together with a copy of the complaint is then served upon the defendant. And under that system of procedure it is usually expressly provided that at any time in the discretion of the court as it deems just such process may be amended provided only that material prejudice will not thereby result to the substantial rights of the party against whom the process was served.

There is no comparable provision in our law either by rule or statute, probably because of the great importance of the writ at common law as the sole means by which the court acquires jurisdiction over the person of the defendant as well as over the particular form of action set forth therein. The declaration plays no role in that respect and is merely auxiliary to the writ in more particularly averring the facts out of which it is claimed the right to the specified form of action arose as a remedy for the redress of the wrong or wrongs alleged. For this reason the defendant against whom the cause of action is averred in the counts of the declaration must correspond precisely to the person described as the defendant in the writ. Since the declaration here clearly fails in this respect and since the defect in the writ is unamendable the variance is fatal to the plaintiff's suit as commenced by her writ. As to a party plaintiff, the rigor of this rule has been much relaxed by statute, but not as to a party defendant. Narragansett Milling Co. v. Salisbury,53 R.I. 296, 300.

Because I think the principles of law outlined above are binding upon us until expressly repudiated by our overruling the above-cited cases, or until our system of pleading and procedure is further modified by statute or rule, I cannot subscribe to the opinion of the majority but must respectfully dissent therefrom.