Hubley v. Goodwin

• Citation: 4 A.2d 665
• Parties: HUBLEY v. GOODWIN et al.
• Decision Date: 07 February 1939
• Court: New Hampshire Supreme Court

4 A.2d 665

HUBLEY

v. GOODWIN et al.

Supreme Court of New Hampshire. Rockingham.

Feb. 7, 1939.

Transferred from Superior Court, Rockingham County; Connor, Judge.

Bill in equity by Theresa M. Hubley, administratrix, against Roland A. Goodwin and another to amend record in certain action at law so that it shall relate only to one defendant, wherein the named defendant appeared specially and moved that the bill be dismissed for want of proper legal and sufficient service, whereupon the question raised by motion was transferred without ruling.

Motion denied.

Bill in equity in which the plaintiff prays that the record of the judgment in the action at law of Roland A. Goodwin v. City of Portsmouth and John D. Hubley "be amended so that the same shall relate only to the defendant, the City of Portsmouth." The defendant herein appeared specially and moved that the bill be dismissed "upon the ground that proper legal and sufficient service has not been made upon him." The question whether this motion should be granted or denied was transferred without ruling by Connor, J.

From the agreed statement of the parties the following facts appear. On October 12, 1933, Roland A. Goodwin, of Eliot, County of York and State of Maine, was the owner and operator of a certain motor vehicle which was in collision with a motor vehicle owned by the city of Portsmouth and operated by its agent and servant, John D. Hubley, of said Portsmouth, at the intersection of two public highways in said city of Portsmouth. On March 24, 1934, the said Roland A. Goodwin brought suit against the city of Portsmouth and John D. Hubley to recover for the damage to his motor vehicle. On February 9, 1935, the following agreement for docket entry, signed by the attorneys for the plaintiff and the defendants, was filed in the Superior Court for the county of Rockingham: "No. 5835. Roland A. Goodwin v. City of Portsmouth and John D. Hubley. Agreement for docket entry in the above action. It is hereby mutually agreed that there may be 'Judgment for the plaintiff in the sum of $250; no costs; judgment satisfied'". Upon September 22, 1935, the said John D. Hubley died, and by writ dated October 31, 1935, Theresa M. Hubley, his administratrix, brought suit against the said Roland A. Goodwin, in which it was alleged that the death of the said John D. Hubley resulted from personal injuries sustained by him upon October 12, 1933 in the above mentioned collision. This suit was duly entered in the Superior Court for the county of Rockingham, and upon January 10, 1936, the defendant Goodwin filed a plea in bar, in which it was asserted "that the action which is now instituted by said administratrix against said defendant is res adjudicata and said administratrix is now barred from maintaining this action" by the judgment in favor of said Goodwin against said city of Portsmouth and said Hubley above referred to. Upon April 1 1936, the present petition was entered, and upon October 27, 1936, a return of non est was filed in court. Upon February 15, 1937 a new order of notice was issued and service was made upon the defendant Goodwin at Eliot, Maine, by a deputy sheriff of Maine. Thereafter, upon April 23, 1937, the defendant Goodwin, appearing specially, filed a motion to dismiss for lack of service, and upon May 17, 1937, the plaintiff moved for a "further order of notice through service upon the Commissioner of Motor Vehicles." This motion was granted and upon May 20, 1937, service of the petition was made upon the Commissioner of Motor Vehicles. Thereafter, upon June 3, 1937, the defendant Goodwin appeared...