Dolber v. Young

• Decision Date: 04 December 1923
• Docket Number: No. 1921.,1921.
• Citation: Dolber v. Young, 81 N.H. 157, 123 A. 218 (N.H. 1923)
• Parties: DOLBER v. YOUNG.
• Court: New Hampshire Supreme Court

123 A. 218

DOLBER

v. YOUNG.

No. 1921.

Supreme Court of New Hampshire. Rockingham.

Dec. 4, 1923.

Transferred from Superior Court, Rockingham County; Marble, Judge.

Covenant by Sarah E. Dolber against Albert E. Young. Judgment for plaintiff. Transferred from the trial term on defendant's exceptions to the denial of his prayers to quash plaintiff's writ. Exceptions overruled.

Covenant, for rent. Trial by jury and verdict for plaintiff. Transferred by Marble, J., on defendant's exceptions to the denial of his prayers to quash the plaintiff's writ: (1) In a plea to the jurisdiction for want of service; (2) in a plea of abatement because of a pending prior action for the same cause; and to the finding of certain facts.

A former suit had been brought by the plaintiff declaring upon two counts: (1) Covenant to pay rent; and (2) case to recover damages occasioned to the rented premises by defendant's occupation. A verdict was directed for the defendant on the first count on the ground that the plaintiff's right of action had not accrued, to which the plaintiff excepted. The court refused to direct a verdict for the defendant on the second count, and the defendant excepted. Trial was had by jury, and verdict returned for plaintiff on April 20, 1922. Subsequent to the trial and verdict, but upon the same day, the present writ, declaring in covenant in the language of the first count in the first writ, was purchased and service made upon the defendant. At the same time service was accepted by his attorney by indorsement on the writ. On October 18, 1922, defendant filed his special appearance and plea to the jurisdiction setting up the fact that defendant at the time of such service was a resident of a foreign jurisdiction attending court here as a party and witness. On October 20 he filed his plea in abatement which set forth that he did so "without waiving his plea heretofore filed." On November 16 he filed an answer to the merits of the case, reciting that he did so "without waiving the pleas or either of them heretofore filed." On February 10, 1923, on defendant's motion, a commission to take depositions was issued, and on March 17 and March 26, 1923, depositions were taken thereunder both as to facts alleged in defendant's special appearance and plea and as to facts relating to the merits of the cause. Trial was had on April 11, 1923, when the defendant was first heard in support of his special appearance and plea and upon his plea in abatement.

No record relating to the trial of the first cause was made upon the clerk's docket until October 31, 1922, when, upon direction of the justice who had presided, the following entry was made:

"April 20, 1922, jury drawn. Verdict directed for defendant upon the first count (for rent). Plaintiff excepts. Verdict for the plaintiff $50.00 upon second count. Plaintiff waives exception to directed verdict upon the first count."

No written waiver of plaintiff's exception was filed in court, and there is no record evidence to show whether the writ in the second suit was served before or after the plaintiff had waived her exception to the directed verdict. Upon the statement of plaintiff's counsel the court found that the suit was begun after such waiver, to which finding the defendant excepted. Further facts appear in the opinion.

Sleeper & Brown and Wm. H. Sleeper, all of Exeter, for plaintiff.

Ernest L. Guptill, of Portsmouth, and N. D. A. Clarke, of Lynn, Mass., for defendant.

SNOW, J. The plaintiff predicates her claim to jurisdiction on; (1) Personal service within the state; (2) written acceptance of service by defendant's attorney; (3) special appearance by counsel which had become general.

1. Nonresident parties and witnesses are privileged from service of process while in attendance upon, going to, or returning from the trial of a cause. Process dependent upon service so made is subject to abatement. Ela v. Ela, 68 N. H. 312, 313, 36 AtL 15; Martin v. Whitney, 74 N. H. 505, 506, 69 Atl. 888, and cases there cited. The court has found that at the time of the service of the writ the defendant was returning within a reasonable time from attendance as a party and witness at the trial of the earlier suit.

2. The court has found that the defendant's attorney was not authorized to accept service.

3. It follows, therefore, that this action is subject to abatement unless there has been a general appearance. A restricted appearance for the purpose of objecting to jurisdiction merely will not confer jurisdiction. Wright v. Boynton, 37 N. H. 9, 72 Am. Dec. 319. But in that case the appearance must be made for the sole purpose of raising the question of jurisdiction. March v. Railroad, 40 N. H. 548, 583, 77 Am. Dec. 732.

"An objection to service or...