Glover v. Baker

• Decision Date: 05 December 1911
• Citation: 81 A. 1081,76 N.H. 261
• Parties: GLOVER v. BAKER et al.
• Court: New Hampshire Supreme Court

81 A. 1081

76 N.H. 261

GLOVER

v. BAKER et al.

Spureme Court of New Hampshire. Merrimack.

Dec. 5, 1911.

Transferred from Superior Court, Merrimack County; Wallace, Judge.

Bill in equity by George W. Glover against Henry M. Baker, executor, and another, to which defendants demurred. Questions of law arising on the demurrer were transferred without a ruling from the superior court, and the cause was entered in the Supreme Court and plaintiff then filed the following motion: "The plaintiff moves that the above-entitled action be remanded to the superior court." Denied.

Hannis Taylor (William L. Chambers, William E. Chandler, John W. Kelley, and Dewitt C. Howe, on the brief), for plaintiff. Streeter, Demond & Woodworth (Elder, Whitman & Barnum, William A. Morse, and Leon M. Abbott, on the brief), for defendants.

PARSONS, C. J. The questions of law arising upon the defendants' demurrer are transferred to this court without ruling. The plaintiff moves to remand the case without consideration of any of the questions presented. This motion is not based upon the ground that as matter of convenience the facts should be found before any attempt is made to settle the law, but upon the claim in the brief that as matter of law the superior court, against the objection of either party, has no power under existing law to transfer, and this court no jurisdiction to determine, questions of law, except after final trial and settlement by the superior court of all questions involved. Upon argument the claim appeared to be reduced to the contention that against the objection of a party questions of law could not be considered here except upon exceptions to rulings made in the superior court.

The administration of the law is probably as little hampered here by subservience to form in procedure as in any common-law jurisdiction. Here in the vindication of "contested rights in civil cases each party has such remedy, including form, method, and order of procedure, as justice and convenience require." Owen v. Weston, 63 N. H. 599, 600, 4 Atl. 801, 802, 56 Am. Rep. 547. The power of the superior court to transfer in some way a question for determination and the jurisdiction of this court to determine it being conceded, the form in which the question is presented is not usually thought entitled to consideration. Petition of Moebus, 73 N. H. 350, 351, 62 Atl. 170; Hutchinson v. Railway, 73 N. H. 271, 277, 60 Atl. 1011; Claggett v. Simes, 31 N. H. 56. When the facts are in dispute, it is not the practice to consider difficult questions of law which may not arise when the facts are found; but, the case being before the court, questions that are necessarily involved in the controversy, the decision of which will aid in the trial, are generally considered, although the form in which they are presented is criticised. Conn. Valley Lumber Co. v. Monroe, 71 N. H. 473, 474, 52 Atl. 940; State v. Stevens, 36 N. H. 59, 61. Moreover, it: appears from the record that the defendants' motion to dismiss the bill was denied subject to exception. Other exceptions are reported taken by both parties and by the plaintiffs to the order of transfer. The case cannot, therefore, be summarily remanded because of the absence of ruling and exceptions in the superior court.

It has been the practice here, as far back as the memory of any member of the bar can go, when important questions of law were involved in a controversy the decision of which might shorten the trial of the facts, to settle such questions first. Whether this should be done if the parties did not agree has been determined by the trial court. Their settlement has been effected by a transfer of the questions to the law court for determination. As the ruling of the trial court was of no importance, the case being held without further action until the settlement of the questions by the law court, it has not been usual to waste time or energy in argument and decision in the trial court. By this method the parties may be saved a prolonged struggle over facts which in the end might be found entirely useless. The theory that questions of law could be finally determined only by a writ of error after final judgment has been so long abandoned as to be practically unknown to practitioners at this bar. The convenience and advantages of the existing system appear from its statement. It is as well known in practice as it is useful in doing justice. But it is said that the procedure is peculiar to this jurisdiction; and it seems to be urged that the plaintiff has been deprived of some rights because, at the expenditure of much time and labor of counsel on both sides and of the trial court, that court has not elaborately heard, considered, and decided the questions raised, although there is no possibility that the party against whom the decision might run would abide by it. It may therefore be useful to examine the origin and growth of the practice. "Until 1813 there were no 'law terms' as contradistinguished from 'trial terms.' Each session of the court was required to be held by a majority of the judges; and questions of law and fact were 'blended together on the docket.' By the statute of June 24, 1813 [1 Laws 1815, p. 73], which remained in force until June 27, 1816, all the terms, except those commencing in November and December, were permitted to be held by a single judge; and all actions in which exceptions were allowed to his rulings were to be continued to the November and December terms in the respective counties, there to be determined by a majority of the judges. This statute also provided that 'all motions and petitions for new trials, and all appeals from judgments or decrees of judges of probate, and all questions of divorce and alimony, questions of law on statement of facts agreed by the parties, or special verdicts, and all issues in law,' should be 'heard, tried, and determined, exclusively' at the terms to be holden in November and December. Sections 2, 3, 5, and 6. In the. subsequent statute of November 5, 1813 [1 Laws 1815, p. 81, §§ 3, 4], the expression 'law term' is applied to these November and December terms, as it is also in the index of the edition of New Hampshire Laws printed in 1815." Smith, N. H, prefatory note, p. 7. The act of June 27, 1816 (Laws 1816, c. 34), repealed the act of 1813 which established the Supreme Judicial Court, revived the superior court of judicature, and restored the former practice under which law terms were unknown.

The act of December 29, 1832 (Laws 1831-32, Nov. Sess. c. 89), made a great and radical change in procedure. It was adopted, it is said, upon the written approval of Richardson, then chief justice, while its authorship is ascribed to Parker, almost immediately thereafter a judge of the court and later its chief justice. Shirley, Reporter's Note, 55 N. H. 7; Bell's Bench and Bar, 87; Sargent's Dartmouth Memorial Addresses, 86, 87. This act created a separate tribunal for the determination of questions of law. Section 7 from its phraseology doubtless drafted with the law of 1813 in mind effected this purpose as follows: It gave the right of exception to any party aggrieved by any "opinion, direction, or judgment" of the court of common pleas (the court of fact), and directed the allowance by the presiding justice of exceptions if "conformable to the truth of the case," and then enacted: "And the said action, matter, process, or proceeding may thereupon, if the presiding justice shall so direct and order, be transferred to the superior court of judicature." If such transfer were not ordered, the exceptions were to be filed in the court of common pleas as the foundation of a writ of error. The section further provides: "In like manner any issue of law, motion for a new trial, question arising from any special verdict, and any other question or matter of law arising at any such term may by the presiding justice present, if he think fit, be reserved and assigned and referred to the superior court of judicature. And the action, cause, motion, petition, or matter * * * shall in such case be transferred to the superior court of judicature." There was also a provision for a transfer upon an agreed statement of facts signed by the parties, "if the presiding judge shall deem it proper." Under this section the questions which the presiding justice may reserve, assign, and refer include those of which under the act of 1813 the "law terms" were given exclusive jurisdiction to hear, try, and determine. If under the law of 1832 he had been expected to hear and determine them before assigning and referring them to the superior court, his conclusion thereon would have constituted an opinion, direction, or judgment open to exception, and the whole matter would have been covered by the provisions as to exceptions. The whole of the section, after the subject of exceptions is disposed of, is unnecessary, useless, and absurd, except upon the theory that questions which the presiding judge thought fit to reserve, assign, and transfer to the superior court were those upon which he did not think fit to rule. The section provides for the two classes of cases: One in which the judge ruled, and then the party had his exception; and those upon which he did not rule, but which he reserved and referred. This result would be reached without considering all the terms employed, but the word "reserve" cannot be rejected. It must have been understood to have some meaning. To reserve an "issue of law, motion for a new trial," or "any other question." is not to decide such issue, motion, or question, but the contrary. It is "to defer the discussion or determination of" such matter. Webster, New Int. Dict. "Reserve," 2. The synonyms of the word "reserve" are "to keep, hold, retain, withhold." It is not synonymous with "determine, conclude, make a decision."" Soule, Eng. Syn. 102, 336. At the December term, 1833, the superior court, when Richardson and Parker were both...