Di Pietro v. Lavigne
| Decision Date | 22 September 1953 |
| Citation | 98 N.H. 294,99 A.2d 413 |
| Parties | DI PIETRO v. LAVIGNE et al. |
| Court | New Hampshire Supreme Court |
Joel W. Eastman, Derry, for plaintiff.
Paul E. Nourie, Manchester, for defendant.
'A new trial may be granted in any case when through accident, mistake or misfortune justice has not been done and a further hearing would be equitable.' R.L., c. 398, § 1. Under the provisions of section 2 of this chapter, it is provided that when the petition is filed '* * * such notice shall be given to the adverse party or his attorney as the court may order.' The question to be decided under this chapter is whether a petition for a new trial, to which is appended a request for an oral hearing, may be denied without a hearing.
As a general rule, notice and an opportunity to be heard are basic essentials of a judicial proceeding. American Motorists Ins. Co. v. Central Garage, 86 N.H. 362, 368, 169 A. 121; Wetmore v. Karrick, 205 U.S. 141, 160, 27 S.Ct. 434, 51 L.Ed. 745; I Merrill, Notice (1952) § 531. Since notice is of no value if a party is denied opportunity to be heard in support of or in defense of his claim, Restatement, Judgments, § 6, comment (f), statutes expressly providing for notice are generally construed to include the right to a hearing. Governor & Council v. Morey, 78 N.H. 125, 97 A. 375. The provisions of R.L. c. 390, § 14, have been so construed in the Morey case. The statute reads as follows: 'The court shall order notice to be given, in such manner as they think fit, of any petition, complaint, libel, application or motion in writing filed therein, and no judgment or decree shall be rendered thereon without compliance with such order.' The requirement of notice and hearing need not be observed in matters which are formal, clerical or uncontested, Emery v. Berry, 28 N.H. 473, and special circumstances may demand the issuance of court orders without initial notice or hearing as in the case of injunctions. Superior Court Rules 133-136, 93 N.H.Appendix. As a matter of practice notice and hearing represents the general rule and the denial of a hearing is the exception. Hubley v. Goodwin, 93 N.H. 54, 4 A.2d 665; Watkins v. Boston and Maine Railroad, 80 N.H. 102, 113 A. 796.
While it is well established that the granting of a new trial or its denial is within the discretion of the Trial Court, where the request is not clearly repetitious, frivolous or solely for the purpose of delay,...
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Wyman v. De Gregory
...no legal requirement that notice and an opportunity to be heard be given to the defendant before immunity is granted. DiPietro v. Lavigne, 98 N.H. 294, 99 A.2d 413. See Governor and Council v. Morey, 78 N.H. 125, 97 A. 375; State v. 4.7 Acres of Land, 95 N.H. 291, 62 A.2d The Trial Court's ......
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...on the contempt petition. Defendant was thus justifiably unprepared to meet the issue when raised at the hearing. DiPietro v. Lavigne, 98 N.H. 294, 295, 99 A.2d 413, 414 (1953). The very purpose underlying the three-year renewal statute is to require the court to reexamine periodically 'all......
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Clark v. Bradstreet
...N.H.Appendix, and is not at fault it would be a question of fact to be determined by the Trial Court after hearing, see DiPietro v. Lavigne, 98 N.H. 294, 99 A.2d 413 whether such relief should be granted. Clough v. Moore, supra; Lamarre v. Lamarre, 84 N.H. 441, 445, 152 A. 272; Lancaster Na......
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Burroughs v. Wynn
...The granting or denial of a new trial, after notice and an opportunity to be heard, is in the discretion of the court. DiPietro v. Lavigne, 98 N.H. 294, 99 A.2d 413 (1953). In the instant case, an opportunity to be heard was provided to the parties in conference with the court, and therefor......