Carpenter v. Carpenter

Citation78 N.H. 440,101 A. 628
PartiesCARPENTER v. CARPENTER.
Decision Date30 June 1917
CourtSupreme Court of New Hampshire

Exceptions from Superior Court, Carroll County; Kivel, Judge.

Libel for divorce by Ralph G. Carpenter against Marguerite Paul Carpenter. Libelant's motion to set aside the decree ordering the decree of divorce vacated and the libel dismissed denied, and he excepts. Exceptions overruled, and libel dismissed.

The libel alleges adultery as a ground for divorce, committed at Magnolia, Mass. Several witnesses for the libelant testified that about the times alleged in the libel they saw the libelee in compromising relations with one or more men at Magnolia. In reliance upon this evidence the court, on July 11, 1916, granted the libelant a divorce. At the libelee's request seasonably filed the court suspended the decree for 30 days, and on August 7, 1916, she filed a motion for a withdrawal of the order of divorce and a re-argument or rehearing of the question of adultery and other matters. The ground of the motion was that the witnesses who testified to the alleged acts of adultery could not see what they said they saw, on account of the physical situation as it existed at. Magnolia, and a view was suggested. A preliminary hearing on this motion was had before the court on August 26th. Subsequently the libelee submitted affidavits of several persons in support of her motion. Thereupon the court ordered a view at Magnolia, which was taken in the presence of counsel for both sides, on September 10th and September 23d, when experiments or tests were made to determine the truth of the statements made by the libelant's witnesses. Afterwards the court ordered the case reargued upon the question of the ability of the witnesses to observe what transpired at Magnolia as they testified, and upon "the question whether if their testimony were stricken out the remaining evidence is sufficient to support the finding of adultery. The reargument was had October 23d and 24th, and the case was submitted. On October 30th a further view was taken and experiments made. November 6th the court ordered that the decree of divorce be vacated and the libel dismissed. The libelant's bill of exceptions was filed December 12th, and on the 20th he filed a motion to set aside the decree of November 6th, which was denied, and the libelant excepted. No other exception was noted to any of the above-described proceedings, previous to the filing of the bill of exceptions. Other facts are stated in the opinion.

Martin P. Howe, of Concord, and W. H. Smart, Michael J. Sughrue, and Henry F. Hurlburt, all of Boston, Mass., for plaintiff. Streeter, Demond, Woodworth & Sulloway, of Concord, and Walter I. Badger, of Boston, Mass., for defendant.

WALKER, J. Many of the questions argued by the libelant are not properly before the court. It is ordinarily essential, under our practice, that parties desiring to litigate questions of law in this court, which were involved in the trial of the case, should unequivocally take an exception to the ruling of which they complain, and that the record should show they did so. A mere objection, not followed by an exception, is unavailing. "Under the well-established practice of this state, unless exception is taken and noted, it is conclusively understood that the ruling is accepted as the law of the case." Lee v. Dow, 73 N. H. 101, 105, 59 Atl. 374, 376; Story v. Railroad, 70 N. H. 364, 380, 48 Atl. 288; Chesbrough v. Mfg. Co., 77 N. H. 387, 92 Atl. 332.

Whether an exception was taken is a question of fact for the trial court to find and report, and argument upon the transfer of a case that an exception was intended to be taken is irrelevant and futile. Consequently the fact that the libelant objected to the granting of the motion for a rehearing and to the taking of a view and to the proceedings thereunder is of no materiality here, since it appears from the bill of exceptions that no exceptions were interposed or allowed to any of the matters now complained of, until the filing of the bill of exceptions December 12, 1916.

But it is argued that although the libelant took no exception to the action of the court in entertaining the libelee's motion for a rehearing of the case, after the decree of July 11, 1916, granting a divorce to the libelant, it is still permissible for him to take the position that upon the filing of that decree the court's jurisdiction of the case was at an end, and hence that the decree of November 11, 1916, vacating the first decree and ordering a dismissal of the bill, was a nullity. One sufficient reason why this position is unsound, even if there were no others, is that under the practice prevailing in the superior court a decree for divorce, like other decrees or verdicts, does not become res ad judicata and final until the end of the term when the parties are entitled to judgment if the litigation is at an end, or until a special order is made for judgment on a specified date during term time. In Hillsborough county the practice is to regard the first day of each month as judgment day. Whatever the ancient practice may have been in this respect, by which the enrollment of a decree was regarded as a final act, it is not of binding effect when a different practice prevails. As no special day had been appointed when the decree should become effective as a judgment, the case had not been finally disposed of when the rehearing was had and the order made annulling the first decree and dismissing the libel. The case had not been fully disposed of (Haynes v. Thorn, 28 N. H. 386, 399), but was still before the court and subject to such orders as justice might require (Adams v. Adams, 51 N. H. 388, 396, 12 Am. Rep. 134). It is not true, therefore, as suggested in argument that the status of the parties as husband and wife was finally changed the instant the decree of divorce was entered. The court having found that justice required that the decree of divorce should be vacated, its power to make the last decree cannot be doubted.

The distinction between this case and Folsom v. ITolsom, 55 N. H. 78, is obvious. That was an application for a retrial of a divorce case, which had been heard and determined at a former term of court, upon the ground of perjury; and upon the allegations of the petition it was held that as a matter of law the petition could not be granted. It would hardly be regarded as commendable practice in this state to hold that the court, after having technically entered a decree of divorce, could not revoke it during the term upon being convinced that he had been grossly imposed upon by the libelant and his witnesses. Such practice would be useful for no apparent purpose other than that of promoting injustice and for that reason it does not prevail in this state. "The notion that when judgment had been given and enrolled no amendment could be made at a subsequent term (3 Bl. Com. 407) was long ago abandoned." Owen v. Weston, 63 N. H. 599, 603, 4 Atl. 801, 803 (56 Am. Rep. 547).

It appears, moreover, that the decree of divorce was suspended on July 13th for 30 days from July 11th, the day it was entered, in order to permit the libelee to file her motion for a rehearing. While this motion was pending and while the case was being reconsidered and reheard, no suggestion was made by any one that the power of the court came to an end when the 30-day limitation expired, as is now argued by the libelant. Until the questions raised on the rehearing were determined the case remained open, in accordance with the understanding of the parties, the undoubted intention of the court, and the recognized practice in this state. Eastman v. Concord, 64 N. H. 263, 8 Atl. 822. No question of jurisdiction is involved in this contention, requiring further discussion.

But it is claimed that the libelee's motion for further proceedings after the first decree was entered was in legal effect an application for a new trial, and that by granting the motion the court could only proceed upon that theory and hear the case de novo. If it is conceded that a retrial of the whole case might have been ordered by the court after it was convinced that a serious error of fact had been introduced at the first trial, it is clear that such an order was not the only method by which the error could be corrected. Lisbon v. Lyman, 49 N. H. 553. That no misunderstanding might be indulged as to what the court intended to do, if he found that some of the libelant's witnesses had testified falsely at the first trial, upon whose testimony he had relied in concluding that the libelee had committed adultery, the court stated expressly at a hearing as to the scope of the questions presented by the motion, that:

"I shall vacate my decree and order the libel dismissed if I am satisfied that by the balance of probabilities the libelant has not made out his case."

Other remarks by the court were made at the same time of similar import, and no exception or objection was made, on the theory now suggested that the court could only order a new trial. It is difficult to understand how counsel could have been misled in this respect or have been taken by surprise, when the court ordered the first decree vacated and the libel dismissed. It is certain that this court can draw no such inference. If the exception which the libelant took to the last decree might be held to cover the objection, it must be overruled.

Nor can the question whether the evidence warranted the court in vacating the decree and ordering the bill dismissed be now considered, since it appears that there was not "any claim as to the insufficiency of evidence to warrant a reconsideration of the first decree and dismissal of the bill made, until December 20, 1916," several days after the last decree was entered. To have the benefit of an exception upon that ground it must be taken before the case is submitted; otherwise the objection is deemed to be waived. Head & Dowst...

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22 cases
  • Bennett v. Larose
    • United States
    • New Hampshire Supreme Court
    • 7 Diciembre 1926
    ... ... Brennan, 77 N. H. 273, 274, 90 A. 964; Cook v. Sargent, 78 N. H. 25, 26, 95 A. 674; Morrison v. Noone, 78 N. H. 338, 340, 100 A. 45; Carpenter v. Carpenter, 78 N. H. 440, 444, 101 A. 628; Derosier v. Company, 82 N. H.——, 134 A. 719 ...         The rule is based upon the sound ... ...
  • Com. v. DiMarzo
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 28 Febrero 1974
    ... ... The Commonwealth takes, of course, the opposite position. In a New Hampshire case, Carpenter v. Carpenter, 78 N.H. 440, 101 A. 628 (1917), a view was taken in Magnolia, Massachusetts, by a judge trying a case in New Hampshire without a jury ... ...
  • Valentine v. Malone
    • United States
    • Michigan Supreme Court
    • 11 Diciembre 1934
    ... ... The better authority, I think, is as follows: A judge when taking a view acts simply as a trier of facts; he is pro hac vice the jury. Carpenter v. Carpenter, 78 N. H. 440, 101 A. 628, 632, L. R. A. 1917F, 974. An inspection of the premises for the purpose of enabling the court to properly ... ...
  • N. E. Redlon Co. v. Franklin Square Corp., 3269.
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    • New Hampshire Supreme Court
    • 2 Diciembre 1941
    ... ... Carpenter v. Carpenter, 78 N.H. 440, 442, 443, 101 A. 628, L.R.A.1917F, 974. There is no reason to doubt that the Court may before judgment review its exercise ... ...
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