Eastman v. City of Concord

• Decision Date: 11 March 1887
• Citation: 64 N.H. 263,8 A. 822
• Parties: EASTMAN v. CITY OF CONCORD.
• Court: New Hampshire Supreme Court

8 A. 822

64 N.H. 263

EASTMAN

v. CITY OF CONCORD.¹

Supreme Court of New Hampshire.

March 11, 1887.

Bill of exceptions from Merrimack county.

Petition for leave to file a statement of claim against the defendant for injuries received through a defective way, under Gen. Laws, c. 75, § 7. The hearing was had April 28, 1886, and at its close Judge Smith, the presiding justice, announced that the petition was granted. Judge Carpenter presided from the opening of the term, April 6th, until April 19th, when Judge Smith came in, and presided until April 28th. The court then took a recess until May 3d, when Judge Carpenter came in, and presided until May 24th. It was then announced that all cases were finally disposed of except State v. Cofran, and that judgment would be entered up as of that day. The court then took a recess until June 7th for the trial of State v. Cofran, when Judge Allen presided till June 11th. The court was then adjourned without day. April 29th, Judge Smith filed with the clerk an order granting the plaintiff leave to file his statement on or before June 1st. June 5th, on the plaintiff's motion, but against the defendant's objection, Judge Smith filed with the clerk a new order, granting the plaintiff leave to file his statement before June 15, 1886, modifying the order first filed accordingly. Thereupon this bill of exceptions by the defendant was allowed.

Albin & Martin, for plaintiff.

Leach & Stevens and Chase & Streeter, for defendant.

BLODGETT, J. A court held by adjournment is not a new term, but a continuance of the former term, (Com. v. Justices, etc., 5 Mass. 435, 436,) and a court once regularly convened continues open until actually adjourned, (People v. Central Bank, 53 Barb. 412.) Keeping in mind these propositions, the modification of the original order was made in term time, and this Dill of exceptions presents nothing requiring extended consideration. When the order granting the petition was made and filed, it became both a judgment and a record of the court; and the power of courts, for sufficient cause, to set aside or modify their judgments, and to amend their records, is too well established in this jurisdiction to be now regarded as an open question. Mullin v. Mullin, 60 N. H. 16; Clough v. Moore, 63 SN. H. 111, 112; Wig gin v. Veasey, 43 N. H. 313, 314. Whether there was sufficient cause to require an extension of the time originally prescribed for the filing of the requisite statutory statement was a question...