Hood v. Marshall

Decision Date28 July 1899
Citation45 A. 574,69 N.H. 605
PartiesHOOD v. MARSHALL et al.
CourtNew Hampshire Supreme Court

Exceptions from probate court, Merrimack county.

Action by Harvey R. Hood, as administrator of the estate of one Lawrence, deceased, against A. S. Marshall, as administrator of one Crippen, and others. A judgment was rendered in favor of plaintiff, from which he appealed, and from an order granting his motion to dismiss the appeal, and refusing defendants' motion for leave to prosecute the appeal, they except. Exceptions overruled.

Appeal from a decree of the probate court, ordering Marshall, as administrator of Crippen, to pay over to Hood, as administrator of Lawrence, any balance in his hands belonging to the estate of Lawrence, of whose estate in his lifetime Crippen was administrator. Pacts found by the court. The appeal was taken in good faith by Hood, who assigned, as reasons for his appeal, insufficiency and ambiguity in the decree. At the term at which it was entered, counsel for Hood marked the case for trial by the court, but before the trial, at the same term, moved for leave to dismiss the appeal. Counsel for the sureties on Crippen's administration bond, who are the only parties interested adversely to Hood, objected to the dismissal of the appeal, and moved that they be allowed to prosecute the same for their protection, upon the ground that they were aggrieved by the decree, and intended to appeal therefrom, and would have appealed, except for the appeal taken by Hood, and for the reason that they were advised and understood that the questions as to which they were aggrieved by the decree would be open to them upon the trial of his appeal. The sureties offered to prove the foregoing, and that they had substantial grounds of defense against the decree of the probate court, which they desired and intended in good faith to litigate. The court rejected the evidence, denied the motion of the appellees, and granted that of the appellant, to all of which the sureties, as appellees, excepted.

Sargent & Niles, for plaintiff.

Leach & Stevens, for defendants.

BLODGETT, C. J. In analogy to the right of a plaintiff to become nonsuit before opening his case to the jury, it is the right of an appellant from the decree of the probate court to have his appeal dismissed at any time before trial. Doughty v. Little, 61 N, H. 365, 366; Simpson v. Gafney, 66 N. H. 477, 30 Atl. 1120. So far as appears, there was no error in denying the sureties'...

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6 cases
  • Fellows v. Normandin
    • United States
    • New Hampshire Supreme Court
    • July 6, 1950
    ...of the superior court may be attached to the appeal.' Applin v. Knowlton, 85 N.H. 320, 321, 158 A. 131. See also, Hood v. Marshall, 69 N.H. 605, 606, 45 A. 574. While these principles have not been strictly observed in argument, they must be regarded as controlling. The issues open to the a......
  • Goin v. Chute
    • United States
    • Oregon Supreme Court
    • September 25, 1928
    ... ... 685; Home Fire Ins ... Co. v. Deets, 54 Neb. 620, 74 N.W. 1088; Thornhill ... v. Hargreaves, 76 Neb. 582, 107 N.W. 847; Hood v ... Marshall, 69 N.H. 605, 45 A. 574; People v. Judges, ... 8 Cow. (N. Y.) 131; Arrigo Co. v. Sposato, 44 ... Pa. Co. Ct. R ... ...
  • Barrett v. Cady
    • United States
    • New Hampshire Supreme Court
    • December 7, 1915
    ...nonsuit at any time before trial, it would seem that the plaintiff had the right as matter of law to dismiss his bill. Hood v. Marshall, 69 N. H. 605, 45 Atl. 574; Simpson v. Gafney, 66 N. H. 477, 30 Atl. 1120; Webster v. Bridgewater, 63 N. H. But the bill should have been dismissed because......
  • Mansfield v. Gushee
    • United States
    • Maine Supreme Court
    • July 11, 1921
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