Boston & M. R. R. v. Watkins
| Decision Date | 05 April 1921 |
| Docket Number | No. 1721.,1721. |
| Citation | 113 A. 796 |
| Parties | BOSTON & M. R. R. v. WATKINS. Petition of TUFTS. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Merrimack County; Branch, Judge.
Bill in equity by the Boston & Maine Railroad against Arthur J. Watkins, and petition by Walter E. Tufts for a writ of habeas corpus for his discharge from custody for refusal to answer when summoned to give deposition. Cases transferred on reserved questions of law raised by exceptions by complainant and petitioner. Exceptions overruled.
After judgment for the defendant in the case Watkins v. Hustis, Rec'r, 79 N. H. 285, 109 Atl. 713, the plaintiff, Watkins, filed a petition for a new trial upon the ground of newly discovered evidence, upon which an order of notice was issued and duly served upon the railroad. The railroad in the first proceeding sought to have enjoined the caption of depositions in the proceeding brought by Watkins of which due notice had been given. Upon hearing the petition for injunction was dismissed, and the railroad excepted. The petitioner, Tufts, having been summoned to give his deposition, refused to answer, and was committed by the magistrate. He then brought his petition for a writ of habeas corpus, which upon hearing the court refused to issue, and Tufts excepted. The plaintiff, Watkins, not having tiled affidavits in support of his petition for a new trial, it was ordered that affidavits in support thereof be filed within one week after the conclusion of the taking of the deposition, and the deposition of Tufts was thereupon taken. The questions of law presented by the foregoing exceptions were reserved and transferred.
Streeter, Demond, Woodworth & Sulloway, of Concord, for the railroad and Tufts.
Robert W. Upton and Joseph C. Donovan, both of Concord, for Watkins.
Instead of taking advantage of the order of the court reserving his decision and transferring to this court the questions raised by the exceptions, the parties by completing the deposition have waived their exception. The railroad desired to prevent the taking of the deposition; the witness Tufts to avoid testifying. But, instead of taking advantage of the opportunity offered them by the superior court to obtain the opinion of this court as to their rights, they yielded to the original order.
At the close of the hearing the question was whether judgment should be rendered despite the exceptions or whether the exceptions should be sustained and judgment rendered adversely to the prior orders. This question the court reserved and transferred. This delayed the entry of judgment in the superior court until the exceptions were disposed of here. Glover v. Baker, 76 N. H. 261, 206, 81 Atl. 1081. It may be Tufts acted under a misapprehension as to the situation without intending to waive his exception. But in that event the controversy is equally determined. Tufts, having testified, has no further interest in the matter. The deposition having been taken, an injunction would be of no value to the railroad unless it is proposed to take further depositions which is not alleged. This is undoubtedly a case where a bill of exceptions to a final order of the superior court would not give full protection to the objecting party because the exceptions could not seasonably be heard in this court. It is not probable, however, that situation will ever arise in practice so as to necessitate a consideration of the restraining power vested in this court, if any. Procedure such as was followed in Hutchinson v. Railway, 73 N. H. 271, 60 Atl. 1011,...
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