20 A. 246 (N.H. 1889), Cox v. Leviston

Citation:20 A. 246, 66 N.H. 167
Opinion Judge:SMITH
Party Name:Cox v. Leviston & a
Attorney:W. L. Foster and F. D. Currier, for the plaintiff. Bingham, Mitchell & Batchellor and J. H. Albin, for the defendants.
Judge Panel:Allen, J., did not sit: the others concurred.
Case Date:December 01, 1889
Court:Supreme Court of New Hampshire

Page 246

20 A. 246 (N.H. 1889)

66 N.H. 167



Leviston & a

Supreme Court of New Hampshire

December 1, 1889

Exceptions sustained.

W. L. Foster and F. D. Currier, for the plaintiff.

Bingham, Mitchell & Batchellor and J. H. Albin, for the defendants.

Allen, J., did not sit: the others concurred.



A new trial was granted at the hearing on this petition because justice has not been done through accident, mistake, or misfortune, and a further hearing would be equitable. G. L., c. 234, s. 1. If the finding is one of fact, it is conclusive, unless upon the facts and evidence reported it appears that there is no competent evidence to support it; and the question is, whether such accident, mistake, or misfortune has been shown as will entitle the plaintiff to the relief prayed for. The specific reasons reported for granting a new trial are three: 1. A mistake was made by the plaintiff's counsel in their understanding of that part of the reserved case relating to Dyer's declarations. 2. There is reason to believe a mistake was made in the finding that there was no way by prescription for the plaintiff. 3. There is reason to believe that the omission of a finding of notice to the defendants [66 N.H. 168] of the plaintiff's use of the way, and of the claim or right under which he used it, was a mistake.

1. The evidence as to Dyer's declarations was excepted to. The question of its competency need not be considered, nor the question whether by the words "accident, mistake, or misfortune" as used in the statute, is meant such error or mistake as results from fortuitous circumstances, and not such as arises from error of judgment, or from misapprehension on the part of counsel in reference to the points of the case as they arise in the course of the trial ( Handy v. Davis, 38 N.H. 411, 415, Heath v. Marshall, 46 N.H. 40, and see French's Petition, 17 N.H. 472, and Bergeron v. Bank, 62 N.H. 655). If the mistake made by counsel furnishes cause for a new trial, the plaintiff cannot now avail himself of it, the point having been raised and decided against him upon the case saved and reported in 63 N.H. 283. Like a question of law once decided at the law term, it is not reconsidered in the same case except on a motion for a rehearing. Plaisted v. Holmes, 58 N.H. 619; Bell v. Lamprey, 58 N.H. 124; Bell v. Woodward, 48 N.H. 437, 443; Russell...

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