Jackson & Sons v. Lumbermen's Mut. Cas. Co.

• Decision Date: 07 November 1933
• Citation: 168 A. 895
• Parties: JACKSON & SONS v. LUMBERMEN'S MUT. CASUALTY CO.
• Court: New Hampshire Supreme Court

168 A. 895

JACKSON & SONS

v. LUMBERMEN'S MUT. CASUALTY CO.

Supreme Court of New Hampshire. Hillsborough.

Nov. 7, 1933.

Transferred from Superior Court, Hillsborough County; Sawyer, Judge,

Case by Jackson & Sons against the Lumbermen's Mutual Casualty Company, wherein defendant moved to dismiss the action and plaintiff moved to dismiss defendant's motion, and defendant's motion to dismiss was ordered filed subject to exception. Questions raised by motions and by exception transferred without ruling.

Case discharged.

Case, by an insured against its liability insurer for negligently conducting the defense of a suit for damages against the insured.

The plaintiff' is an Ohio corporation, and the original cause of action arose and was litigated in that state. The defendant is an Illinois corporation doing business in Ohio and other states, including New Hampshire. It insured the plaintiff in Ohio. The judgment in the original suit was $4,250 in excess of the liability policy, and after it had paid that sum the plaintiff sued the present claim in Ohio. A demurrer to the declaration was sustained; the plaintiff discontinued the suit and brought the present action here.

The defendant moved that the action be dismissed because the court ought not to take jurisdiction of the cause. The plaintiff moved that the defendant's motion be dismissed upon the ground that it was not filed within the time limited by the rules of the superior court for filing pleas in abatement or for maintaining the status of a special appearance. Subject to exception the court (Sawyer, C. J.) ordered the motion filed as of a date within the latter limit.

The questions raised by these motions were transferred without ruling, together with the foregoing exception.

Doyle & Doyle, of Manchester (Paul J. Doyle, of Manchester, orally), for plaintiff.

Devine & Tobin, of Manchester, and Robert W. Upton and Laurence I. Duncan, both of Concord (John E. Tobin, of Manchester, orally), for defendant.

PEASLEE, Chief Justice.

The plaintiff's objections to the entertainment of the defendant's objections to proceeding with the action in this jurisdiction present no question of law. They concern matters relating to the rules of the superior court and their application or suspension. Cases involving an issue of jurisdiction over a party have no pertinence to this controversy. It is true that consent will confer that feature of jurisdiction. But where the issue concerns jurisdiction over the subject-matter a different rule prevails. Consent cannot confer a nonexistent jurisdiction of subject-matter (Mansfield v. Holton, 74 N. H. 417, 68 A. 541, and cases cited; State v. Riceiardi, 81 N. H. 223, 123 A. 606, 34 A. L. R, 609; LaBonte v. Berlin, 85 N. H. 89, 154 A. 89); and objections touching jurisdiction thereof may be heard at any time. Patten's Petition, 16 N. H. 277. While this is not precisely a case involving lack of jurisdiction, in the sense that there is no power to act, yet the jurisdictional question presented has to do with the subject-matter, and not with bringing the parties within the power of the court to bind them by a judgment. In such situation, rules as to pleas in abatement or other dilatory proceedings have no application. The exception is overruled.

The...