Gitsis v. Thornton
| Decision Date | 05 November 1940 |
| Citation | 16 A.2d 369 |
| Parties | GITSIS et al. v. THORNTON et al. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Grafton County; Young, Judge.
Action for declaratory judgment by George A. Gitsis and another against Francis W. Thornton and another, wherein defendants filed a motion to dismiss the petition. Transferred without ruling to the Supreme Court.
Petition dismissed.
Petition, for a declaratory judgment.
The plaintiff Dodge, while driving an automobile of which he was the bailee and of which the plaintiff Gitsis was the owner, had a collision in Claremont with a motorcycle driven by the defendant Thornton with the defendant Brace as his passenger. Soon after the petition was brought Dodge was sued by the defendants in separate actions for his alleged blame for the collision. Brace is a nonresident and has brought his action in Grafton County where Dodge is a resident, while the action of Thornton, a resident of Claremont, is pending in Sullivan County. There has been no trial of either action.
The petition sets forth that the plaintiffs have no adequate remedy at law, and that the proceeding is necessary to enable them properly to investigate the claims of the defendants and to prepare for possible trial of the claims.
The question whether the petition should be dismissed upon the foregoing facts is raised by motion of the defendants for its dismissal and has been transferred without ruling by Young, J.
Sewall, Varney & Hartnett and C. F. Hartnett, 2nd, all of Dover, for plaintiffs.
Albert D. Leahy, of Claremont, for defendants.
While the petition alleges a claim of the defendants against the plaintiff Gitsis, it was conceded in argument that they have made none and that at most the existence of the claim is only a possibility. The declaratory judgment statute (Laws 1929, c. 86) requires that there be an adverse claim to the claim of the petitioner. Since it does not appear that the defendants here have any claim against Gitsis, he has no right to maintain the petition. Merchants Mutual Casualty Co. v. Kennett, 90 N.H. 253, 7 A.2d 249. "There is no right to an adjudication of matters not in contention." Conway v. New Hampshire Water Resources Board, 89 N.H. 346, 349, 199 A. 83, 87.
As to the plaintiff Dodge, the statute has been construed to deny the right to maintain a petition when other remedy is available and adequate. Baker v. Goodale, 85 N.H. 561, 157 A. 885; Reynolds v. Chase, 87 N.H. 227,...
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...Resources Roard, 89 N.H. 346, 349, 199 A. 83; Merchants Mutual Casualty Co. v. Kennett, 90 N.H. 253, 255, 7 A.2d 249; Gitsis v. Thornton, 91 N.H. 192, 16 A.2d 369. Looking at the situation realistically, however, the plaintiff takes the position that Albert has not lost his rights at common......
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...within the terms of RSA 491:22, which requires that a present right of the plaintiff be subjected to an adverse claim. Gitsis v. Thornton, 91 N.H. 192, 16 A.2d 369 (1940); Wallace v. Brown, 89 N.H. 561, 3 A.2d 95 (1938). The statute has been construed to encompass any 'act of the defendant ......
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...“question the validity of a law.” Benson v. N.H. Ins. Guaranty Assoc., 151 N.H. 590, 593, 864 A.2d 359 (2004); see Gitsis v. Thornton, 91 N.H. 192, 193, 16 A.2d 369 (1940) (“The only new right created by the [declaratory judgment] statute is to make disputes as to rights or titles justiciab......
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Villars v. City of Portsmouth
...adverse claim. Therefore the plaintiff was not entitled to maintain his declaratory judgment petition against the company. Gitsis v. Thornton, 91 N.H. 192, 16 A.2d 369; see also, Conway v. New Hampshire Water Resources Board, 89 N.H. 346, 349, 199 A. 83. It follows the order Defendant city ......