Chemical Insecticide Corp. v. State

• Decision Date: 23 May 1967
• Citation: 108 N.H. 126,229 A.2d 167
• Parties: CHEMICAL INSECTICIDE CORPORATION v. The STATE of New Hampshire.
• Court: New Hampshire Supreme Court

Page 167

229 A.2d 167

108 N.H. 126

CHEMICAL INSECTICIDE CORPORATION v. The STATE of New Hampshire.

Supreme Court of New Hampshire.

Argued Dec. 7, 1966.

Decided April 28, 1967.

Rehearing Denied May 23, 1967.

Paul A. Rinden and Charles F. Dalton, Jr., Concord, for plaintiff.

George S. Pappagianis, Atty. Gen., and R. Peter Shapiro, Asst. Atty. Gen., for defendant.

PER CURIAM.

I. RSA 491:8-a (supp) provides in part that a motion 'for immediate entry of judgment' shall be accompanied 'by affidavits based upon personal knowledge of admissible facts * * *.' The statute continues: 'The facts stated in accompanying affidavits shall be taken to be admitted for the purpose of the motion unless within fifteen days contradictory affidavits based on personal knowledge are filed or the opposing party shall file an affidavit showing specifically and clearly reasonable grounds for believing that contradictory evidence can be presented at a trial but cannot be furnished by affidavits. If such affidavits are not filed by the opposing party within said fifteen days, judgment shall be entered on the next judgment day in accordance with the facts. Copies of all motions and affidavits shall upon filing be furnished opposing counsel. If affidavits are filed but it shall appear upon hearing that no genuine issue of material fact exists, judgment may be entered accordingly.'

The plaintiff contends that since the defendant failed to file its counter-affidavit within fifteen days, the plaintiff became entitled as a matter of law to have judgment entered in its favor on the next judgment day, by force of the statutory provisions quoted above. In support of this contention, it points to a 1965 amendment of the statute which deleted the words 'or such further order made as justice may require' which formerly followed the words 'judgment shall be entered on the next judgment day in accordance with the facts.' See Laws 1965, 139:1; Community Oil Co. v. Welch, 105 N.H. 320, 199 A.2d 107.

The defendant contends that the amendment did not deprive the Trial Court of discretion, that the fifteen-day limitation of the statute is inapplicable to the State as a party and that if literally enforced, the statute would be unconstitutional.

A threshold inquiry which is stressed by the defendant but not referred to by the plaintiff in its brief, is whether the summary judgment statute (RSA 491:8-a (supp)) applies in actions against the State. The defendant cites no cases squarely in point supporting its position, but relies upon the general principle that the doctrine of sovereign immunity protects the State. Moore v. Dailey, 97 N.H. 278, 86 A.2d 342; Public Service Co. v. State, 102 N.H. 54, 149 A.2d 874; Holte v. Rondeau, 105 N.H. 304, 199 A.2d 100.

Concededly, the State cannot be sued without its consent, as the above cases demonstrate. However, in this case the Legislature in unmistakable language has given the plaintiff the right to recover a judgment against the state in any action 'founded upon an express or implied contract with the state. * * *' RSA 491:8. Mittersill Ski Lift Corp. v. State, 105 N.H. 219, 196 A.2d 71.

As a litigant, the State like other parties may be called upon to respond to demurrers and motions for nonsuits or directed verdicts which may determine its rights. In cases where the Legislature has permitted sovereign immunity to be waived, we see no reason, nor is any suggested, why the State should not be subject to other rules of pleading and procedure, including those relating to summary judgment.

We cannot agree with the State's contention that RSA 491:8-a (supp) creates a 'substantive statutory form of action.' It merely obviates waste and accelerates an action already begun. Nor do we believe that this section can be equated to a statute of limitations. The State cites no cases holding summary judgment procedures to be such, nor do such cases as Manchester v. Manchester Teachers Guild, 100 N.H. 507, 131 A.2d 59, relied upon by it, furnish authority for this position. We conclude that the State is subject to the requirements of RSA 491:8-a (supp) in any case in which it has consented to suit. See In re Dockham Estate, 108 N.H. --, 227 A.2d 774 (March 29, 1967).

II. The plaintiff maintains that since the summary judgment statute is couched in mandatory terms, and the amendment of 1965 deleted the words 'or such further order made as justice may require,' the Legislature thereby demonstrated an intention that judgment should be summarily entered for the moving party when no counter-affidavit is filed within the fifteen-day period. While the argument is not without force, we think it equally likely that the deletion was made because of doubt that the deleted provision had any rightful place in the act in the first place. Obviously if no counter-affidavits are filed to indicate that a genuine issue of fact exists, summary judgment should be entered, and no occasion would arise for entry of some alternative order. The occasion for entry of some order other than for summary judgment would be the one occasion which the statute does not expressly regulate, namely, where the affidavits filed do establish a genuine issue of fact to be heard.

In the case before us, had the defendant taken no action after the plaintiff's motion for summary judgment, it is evident that under the statute the plaintiff would have been...