Bickford v. Town of Franconia

• Decision Date: 07 February 1905
• Citation: 73 N.H. 194,60 A. 98
• Parties: BICKFORD v. TOWN OF FRANCONIA.
• Court: New Hampshire Supreme Court

60 A. 98

73 N.H. 194

BICKFORD

v. TOWN OF FRANCONIA.

Supreme Court of New Hampshire. Grafton.

Feb. 7, 1905.

Exceptions from Superior Court; Pike, Judge.

Appeal by John M. Bickford from the decision of the selectmen of the town of Franconia in laying out a highway. A motion to strike out a ground of appeal was denied pro forma, and defendants excepted. Case discharged.

The grounds of complaint in the appeal are: (1) The decision laying out the highway; (2) the assessment of damages; (3) that one of the selectmen was disqualified by interest, as an owner of land over which the highway passed. The defendants moved that "the last ground of appeal be stricken out, for the reason that this grievance is not the subject of appeal."

George F. Morris, for plaintiff. Batchellor & Mitchell, for defendants.

PARSONS, C. J. An appeal is a continuation of the original suit, for the purpose of obtaining a new trial and a new judgment. It is analogous in its effect to the award of a new trial, by which the previous verdict is entirely set aside, and the case is to be heard anew like an original action, and as if no judgment had been rendered in the court below. In highway appeals, and generally, the appeal vacates the judgment in the court below, and the judgment in the appellate court is a distinct and original judgment. Pub. St 1901, c. 68, § 8; Morse v. Wheeler, 69 N. H. 292, 45 Atl. 561; Cook v. Bennett, 51 N. H. 85, 91; Stalbird v. Beattie. 36 N. H. 455, 72 Am. Dec. 317; Wallace v. Brown, 25 N. H. 216, 220; Mathes v. Bennett, 21 N. H. 188, 203.

In his highway appeal the plaintiff alleges that the tribunal rendering the judgment from which he appealed was disqualified, because of interest, to act in the decision of the original petition. Pub. St 1901, c. 45, § 6. The defendants move to strike this allegation from the petition. They take the position in their brief that the plaintiff, if aggrieved by the illegal constitution of the original highway tribunal, has a sufficient remedy in a new trial before a new tribunal, to which he is entitled upon appeal; while the plaintiff advances the claim that the disqualification, if conceded, or found to be true, is a sufficient objection against referring the petition to the county commissioners (Pub. St. 1901, c. 68, § 5); that no new trial can be had, but the decision of the selectmen must be reversed without an investigation of the merits.

Upon these claims, the real question between the parties is whether the error alleged is fatal to the further maintenance of the original petition. This question would seem to be more properly raised by a motion by the plaintiff to quash or dismiss the proceedings, or by objection to a reference of the petition to the county commissioners. As the matter in dispute appears to be plain, it is not advisable to take time to consider whether it is technically presented by the motion and pro forma ruling in the superior court. The question is as to the Jurisdiction of the appellate court to entertain the appeal and proceed to a trial upon the merits. Where the objection goes to the Jurisdiction of the original tribunal over the subject-matter, the judgment is void, and the appellate tribunal acquires no jurisdiction of the merits upon appeal. The proceedings may be quashed on motion, or dismissed. State v. Gerry, 68 N. H. 495, 38 Atl. 272, 38 L. R. A. 228; State v. Perkins, 63 N. H. 89; State v. Thornton, 63 N. H. 114; Northern R. R. v. Enfield, 57 N. H. 508; State v. Runnals, 49 N. H. 498; State v. Dolby, 49 N. H. 483, 6 Am. Rep. 588; Perkins v. George, 45 N. H. 453. But the personal disqualification to act, in a particular case, of a member of a tribunal having jurisdiction of the subject-matter, does not render the judgment in such case void. It is merely voidable—liable to be set aside upon appeal, writ of error, prohibition, or certiorari. For such error, an appeal furnishes a complete remedy. Fowler v. Brooks, 64 N. H. 423, 424, 13 Atl. 417, 10 Am. St. Rep. 425; Logue v. Clark, 62 N. H. 184; Perkins v. George, 45 N. H. 453, 454; Moses v. Julian, 45 N. H. 52, 54, 84 Am. Dec. 114; Gorrill v. Whittier, 3 N. H. 265, 269; Van Fleet, Col. At. § 45. The original petition is not necessarily quashed for error in the proceedings before the appeal. The whole case as presented by the appeal is before the court, and, if there are defects of form or substance, they give the plaintiff no cause of complaint, the court to which he has appealed having jurisdiction of all matters in which there was error. Moses v. Julian, supra; Perkins v. George, supra; Adams v. Adams, 64 N. H. 224, 227, 228, 9 Atl. 100; Campbell v. Windham, 63 N. H. 465, 3 Atl. 422; Peirce v. Portsmouth, 58 N. H. 311; Underwood v. Bailey, 58 N. H. 59; Id., 56 N. H. 187. It is a general rule that objections to the competency of a tribunal having general jurisdiction of the subject-matter may be waived. Gilmanton v. Ham, 38 N. H. 108; Wanen v. Glynn, 37 N. H. 340. By statute the same causes disqualify a selectman from sitting in the decision of a case which would disqualify him from acting as a juror in the cause. Pub. St. 1901, c. 45, § 6. The objection to the competency of a Juror by reason of his interest in the cause may be waived, and is waived by failure to object before the trial, unless the party appears to have exercised due diligence...