Clough v. Clough

• Citation: 119 A. 327
• Parties: CLOUGH v. CLOUGH (two cases).
• Decision Date: 08 November 1922
• Court: New Hampshire Supreme Court

119 A. 327

CLOUGH

v. CLOUGH (two cases).

Supreme Court of New Hampshire. Hillsborough.

Nov. 8, 1922.

Exceptions from Superior Court, Hillsborough County; Allen, Judge.

Cross-actions for divorce by Elizabeth J. Clough against Harry G. Clough and Harry G. Clough against Elizabeth J. Clough. The husband, libellee in the first action and libellant in the second, applied for appointment of a commissioner to take depositions which was made without notice to the adverse party. The wife, libellant in the first action, was then, upon due notice, summoned to give her testimony before the magistrate and upon refusal was committed by him. To the ruling on an order denying the wife's petition for habeas corpus and her motion to revoke the commission to take depositions, she excepts. Case discharged.

Doyle & Doyle, of Nashua, and Tuttle, Wyman & Starr, and L. E. Wyman, all of Manchester, for Elizabeth J. Clough.

Warren, Howe & Wilson, of Manchester, and Robert W. Upton, of Concord, for Harry G. Clough.

PARSONS, C. J. "For the purpose of avoiding collusion in libels for divorce and petitions affecting the marriage relation, no evidence contained in depositions will be received unless taken before a commissioner appointed by the court." Rules of Court, No. 128, January, 1918, 78 N. H. 707. The same rule, in substance, is found in the rules of December, 1859, 38 N. H. 596, and December, 1875, 56 N. H. 596, and appears to have been in force in July 1849. Bell, Justice and Sheriff (3d Ed.) p. 145.

In the taking of a deposition, all matters may be inquired into which may become competent, i. e., be presented as evidence at the trial, but if the answers to any inquiries cannot be evidence at the trial "it would be the duty of the magistrate, upon objection by the witness, to refuse to put such questions." Boston & Maine Railroad v. State, 75 N. H. 513, 520, 77 Atl. 996, 999 (31 L. R. A. [N. S.] 539, Ann. Cos. 1912A, 382). Hence as under the rule no evidence is receivable at the trial which is contained in depositions taken before a magistrate not specially commissioned by the court, it would be the duty of such a magistrate not to put any questions to an objecting witness, and the deposition could not be taken. Such is the plain meaning of the rule; depositions are not to be taken at will by either party.

The hearing of libels for divorce upon oral testimony at the trial terms was authorized by chapter 2, Laws of 1870. Such is now the universal practice. Since that date it has been understood by the bar, it is believed, that depositions could not be taken for use in divorce trials except through permission from the court. The application of the libellee for the appointment of a commissioner is evidence of such understanding. At the trial of these motions his counsel contended for the statutory right to take depositions at will without regard to the rule. The orders excepted to were made because it was held they were required by the statute. The only question presented by the case therefore is whether the statute relied upon was intended to regulate practice in divorce cases.

The provision is:

"The deposition of any witness in a civil cause may be taken and used at the trial unless the adverse party procures him to attend, so that he may be called to testify when the deposition is offered." P. S. c. 225, § 1.

Other sections of the chapter define the procedure for such taking. The question is whether a libel for divorce is a "civil cause" within the meaning of the term as used in this chapter.

"Retrospective laws are highly injurious, oppressive, and unjust. No such laws, therefore, should be made, either for the decision of civil causes or the punishment of offenses." Const, part 1, art. 23.

The language makes only two classes of causes, civil and those for the punishment of offenses. It is plain the common-law division of causes into civil, equitable, and ecclesiastical is not here in mind. Because a retrospective law for a divorce operates oppressively and unjustly, such a law is held within the condemnation of the Constitution in Clark v. Clark, 10 N. H. 380, 34 Am. Rep. 165. In this case the conclusion is reached that a libel for divorce is a civil cause within the meaning of the term us used in the Constitution, rather than a proceeding for the punishment of an offense for which contention authority is cited, although it is admitted the prohibition of the Constitution would be equally applicable in either view. But it may be conceded that civil causes, as the term is used in the Constitution, includes libels for divorce. Dunbarton v. Franklin, 19 N. H. 257, 262.

"The same words may have different meanings in different parts of the same act and of course words may be used in a statate in a different sense from what they are used in the Constitution." Lamar v. U. S. 240 U. S. 60, 65, 36 Sup. Ct. 255, 257 (60 L. Ed. 526).

"It needs no authority to show that the same phrase may have different meanings in different connections." American Security Co. v. District of Columbia, 224 IT. S. 491, 494, 32 Sup. Ct. 553, 554 (56 L. Ed. 856).

See Boston & Maine Railroad v. Portsmouth, 80 N. H. 7, 112 Atl. 394; Boston & M. R. R. v. Concord, 78 N. H. 463, 101 Atl. 663; Boston & M R. R. v. Franklin, 76 N. H. 459, 84 Atl. 44.

The meaning of a statute is the intention of the makers, and generally this is to be found in the history of legislation upon the subject, the circumstances under which it was enacted, and the mischief sought to be remedied. Stanyan v. Peterborough 69 N. H. 372, 46 Atl. 191. The question is: Was the statute enacted in aid of all causes not criminal or was it adopted to supply a defect in common-law, as distinguished from equitable, administration? The history and purpose of the statute is to be found in reported cases.

"The occasion for the statute was found in the inability of courts of law to authorize depositions to be taken de bene esse and used in trials before the jury. It was the right of the parties to have all witnesses produced and examined viva voce before the jury. If the personal attendance of the witness could not be secured, without the consent of the ether party, the evidence could not be obtained except by resort to equity and an auxiliary proceeding in aid of the suit at law." Boston & Maine Railroad v. State, 75 N. H. 513. 518, 77 Atl. 996, 998 (31 L. R. A. [N. S.] 539, Ann. Cas. 1912A, 382).

The principal object of the legislation as stated in Hay ward v. Barron, was "to dispense with the common-law rule limiting the testimony to be received on trial to that delivered orally upon the stand in the presence of the court and jury." 38 N. H. 369. The object of the legislation being to correct a defect in the common-law "civil causes" in the provincial statute of 1701 (1 N. H. Laws, [Batchellor] p. 689) and in the subsequent legislation intended causes within the common-law jurisdiction. In equity the power already existed.

All the detail of the procedure in divorce proceedings before 1870, which must now be little more than a tradition in the bar, cannot perhaps be accurately settled. Up to that time libels for divorce were entered at the law term and heard upon depositions. Laws 1855, c. 1659, § 11; Spaulding's Appeal, 33 N. H. 479, 480. The practice appears to have been at this time upon entry of the libel to apply for the appointment of a commissioner to take depositions, whom the rule required to personally examine the witnesses and to report his findings whether there be any collusion between the parties. The depositions when completed were passed to the court, and decisions made upon the documentary evidence. Rules 78-81, 56 N. H. 596.

At an earlier date cases appear to have been determined upon voluntary affidavits, those of the parties being required. Smith v. Smith, 12 N. H. SO (1841); Quincy v. Quincy, 10 N. H. 272 (1839); Poor v. Poor, 8 N. H. 307, 29 Am. Dee. 664 (1836). The procedure was not according to common-law rules; the facts were found by the judges (see cases just cited); the parties testified (Warner v. Warner. 69 N. H. 137, 138, 44 Atl. 908; Melvin v. Melvin, 58 N. H. 569, 42 Am. Rep. 605; Corson v. Corson, 44 N. H. 587, 588), and the personal attendance of witnesses was not required as at commonlaw trials (Hayward v. Barron, 38 N. H. 366); the New England invention of default in common-law actions (Hutchinson v. Rail way, 73 N. H. 271, 277, 278, 60 Atl. 1011) has no application. The libellant takes nothing as a legal proposition if the libellee fails to appear. The allegation of the libel must still be proved to the satisfaction of the court. Section 1, c. 192, Rev. St., which gives a right of review in all "civil actions" applies only to those cases in which the course...