Halle v. Cavanaugh

• Decision Date: 04 May 1920
• Citation: 111 A. 76
• Parties: HALLE v. CAVANAUGH.
• Court: New Hampshire Supreme Court

111 A. 76

HALLE

v. CAVANAUGH.

Supreme Court of New Hampshire. Hillsborough.

May 4, 1920.

Transferred from Superior Court, Hillsborough County.

Action by Agnes T. Halle against Leo A. Cavanaugh.Motion to abate action was granted, and plaintiff's executor excepts and case was transferred.Case discharged.

Motion to abate an action for personal injuries made at the May Term, 1919, of the superior court.The plaintiff, a married woman, died May 23, 1918, before trial.Her husband, named as executor in her will, was drafted into the military service of the United States, June 27, 1918, and was discharged January 27, 1919.Some time after May 15, 1919, he was appointed executor; no other having been appointed.In the Superior court, Allen, J., granted the motion because so required as matter of law, and transferred the case from the May term, 1919, upon exception by the plaintiff's executor.

Doyle & Lucier, of Nashua, and Charles E. Hammond, of Manchester, for plaintiff'sexecutor.

Warren, Howe & Wilson, of Manchester, for defendant.

PEASLEE, J.This is an action of tort for personal injuries; the plaintiff died May 23, 1918, during the May term; the second term thereafter was the January term, 1919, which ended May 5, 1919.No person having appeared to prosecute the suit, the court, at the May term, 1919, granted the defendant's motion to abate the action.Such action is ordinarily required by the statute of the state.The administrator has two full terms in which to appear and assume prosecution of the suit.Fairgraves v. Stark Mills, 77 N. H. 215, 90 Atl. 510;Shea v. Starr, 76 N. H. 538, 85 Atl. 788.To maintain such prosecutionhe must show compliance with the statute.Poff v. Telephone Co., 72 N. H. 164, 55 Atl. 891.The plaintiff's husband, who was named as executor in her will and appointed as such some time after May 15, 1919, was drafted into the military service of the United States, June 27, 1918, and discharged January 27, 1919.This fact is relied upon, under the Soldiers' and Sailors' Relief Act, passed by CongressMarch 8, 1918, to toll the statestatute.40 U. S. St. p. 440, c. 20 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3078 1/4 a-3078 1/4 ss).

The purpose of this act was the protection of persons in the military service of the United States, to prevent prejudice to their civil rights during their term of service by making provision for the temporary suspension of legal proceedings and transactions relating thereto.Id., § 100.Accordingly the act contains provisions prohibiting judgment by default against any defendant unless it appears he is not in the military service, and for the opening and vacating of any judgment or order against any person in such service.Sections 200,201,204.Relief under these sections is limited to the period of service and 30 or 60 days thereafter.Consequently these provisions, if otherwise applicable, are now of no avail.The only provision upon which reliance is placed is section 205, which is as follows:

"That the period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any action by or against any person in military service or by or against his heirs, executors, administrators or assigns, whether such cause of action shall have accrued prior to or during the period of such service."

The question under this section is whether this suit is one by a person who is or was in the military service, or, under the general terms of the act, a proceeding to enforce the civil rights of such person, or whether it is merely the motion of the husband as executor for leave to appear and prosecute the action.The suit of Agnes Halle is an action by a married woman to recover for injuries to her.She had the same right to maintain it as she would have had if unmarried.P. S. c. 176, §§ 1, 2;Seaver v. Adams, 66 N. H. 142, 19 Atl. 776, 49 Am. St. Rep. 597.If the husband by appointment as executor secured the power to prosecute the suit by seasonable action, such power is derived from the grant of administration and not from the marital relation or from the nomination in the will.Crosby v. Charlestown, 78 N. H. 39, 43, 95 Atl. 1043.Any other person duly appointed would have the same power.The husband is no more plaintiff in one case than in the other.The damages recoverable are part of the wife's estate to be distributed according to law.Piper v. Railroad, 75 N. H. 435, 75 Atl. 1041.The facts that the person appointed representative of the deceased was the plaintiff's husband or was at one time in the military service are immaterial in such proceeding, because the suit so prosecuted is still the suit of Agnes Halle, who never was in the military service, and the rights so sought to De enforced are primarily hers, and not those of her husband or of one who was in the military service.The federal statute has no application to such a situation.

Although the right of the executor of the will of Agnes Halle to appear and prosecute the suit is barred by the statute...