Hughes v. Hebert
| Decision Date | 26 February 1965 |
| Citation | 207 A.2d 432,106 N.H. 176 |
| Parties | , 13 A.L.R.3d 974 Robert T. HUGHES v. Lumina HEBERT et al. |
| Court | New Hampshire Supreme Court |
Wyman, Bean & Tefft, Stanton E. Tefft, Manchester, for plaintiff.
Sheehan, Phinney, Bass, Green & Bergevin, Richard A. Morse and Charles P. Amyot, Manchester, for defendants.
By this action of case, brought on March 19, 1964, the plaintiff seeks to recover for injuries alleged to have been suffered on July 21, 1958 as a result of a fall on premises owned by the defendants. His exception to the order of the Superior Court granting the defendants' motion to dismiss was reserved and transferred by the Presiding Justice (Leahy, C. J.).
A prior action for the same cause was brought by the plaintiff against the defendants on April 19, 1961. On September 19, 1962, plaintiff's counsel in that action withdrew. Notice to the plaintiff requiring new counsel by October 4, 1962 was returned to the clerk, marked 'Moved, left no address.' On October 10, 1962 the prior action was marked 'nonsuit,' by order of the Court. Rule 14, Rules of the Superior Court.
The defendants' motion to dismiss the second action, now before us, is grounded upon the following statute: RSA 508:10.
Since the second action was brought more than one year after the entry of nonsuit in the first, the defendants argue that the second action was properly dismissed in accordance with the foregoing statute. The plaintiff, on the other hand, points out that the second suit was brought within the six-year limit imposed by the general statute of limitations (RSA 508:4), and argues that RSA 508:10, supra, provides a means by which the general limitation may be tolled or extended, but should not operate to shorten the period otherwise provided for commencing action.
All parties agree that the nonsuit entered in the first action did not operate to bar the plaintiff's right of action. While the plaintiff has suggested that the making of 'nonsuit' was not a 'judgment' within the meaning of RSA 508:10, there can be little doubt that the case went to judgment on judgment day, November 6, 1962, at the latest. See Rule 57 (now Rule 60), Rules of the Superior Court. Hence there can be no serious question but that RSA 508:10, supra, would have operated to permit a second action to be brought within one year after the judgment. Since this action was not so brought, the question presented is whether it was nevertheless seasonably brought even though more than a year after the judgment, because brought within six years after the cause of action accrued as permitted by RSA 508:4, supra.
We think it plain that the second action is not barred by the limitation of RSA 508:10. As was noted in Milford Quarry & Const. Co. v. Boston & M. Railroad Co., 78 N.H. 176, 97 A. 982, this statute had its origins in the early English statute of limitations, enacted in 1623. Section 10, as appears from an examination of the chapter in which it appears, is one of several provisions under which the running of general limitations may be tolled. Cf. RSA 508:8, 9.
The obvious purpose of section 10 was similarly to permit an action to be brought after the general limitation had run (RSA 508:4), where a prior action, seasonably brought, should be dismissed for reasons not barring the right of action or determining it upon its merits. Hence in Milford Quarry & Const. Co. v. Boston & M. Railroad Co., supra, where such a situation was presented, it was said that the 'sole test' under section 10 of the right to right a new action in a year 'is whether the right of action is or is not barred by the first judgment.' Id., 177, 97 A. 983.
Since no claim is made that the plaintiff's action was so barred, and since the six-year limitation of section 4 had not run when the pending suit was brought the plaintiff had no occasion to rely upon section 10. His cause not being barred, his suit may be...
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Elmore v. State Farm Mut. Auto. Ins. Co.
...Duncan v. Lumbermen's Mut. Casualty Co., 91 N.H. 349, 23 A.2d 325 (1941), overruled, in part, on other grounds by Hughes v. Hebert, 106 N.H. 176, 207 A.2d 432 (1965); Murray v. Allstate Ins. Co., 209 N.J.Super. 163, 507 A.2d 247 (1986); Browdy v. State-Wide Ins. Co., 56 Misc.2d 610, 289 N.Y......
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...N.E.2d 144 (1972); Duncan v. Lumbermen's Mut. Casualty Co., 91 N.H. 349, 23 A.2d 325 (1941), Overruled on other grnds, Hughes v. Herbert, 106 N.H. 176, 207 A.2d 432 (1965); Cue v. Casualty Corporation of America, 537 P.2d 349 (Okl.App.1975); Pringle v. Robertson, 258 Or. 389, 465 P.2d 223, ......
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McNeely v. Weyerhaeuser Co.
...are common in the United States and find their origin in the English Statute of Limitations, enacted in 1623. See Hughes v. Hebert, 106 N.H. 176, 177, 207 A.2d 432 (1965). Those remedial statutes are "liberally construed in order that disputes may be decided upon their merits." Vari v. Food......
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Town of Plaistow v. Riddle
...RSA 508:10's sole test, i.e., "whether the right of action is, or is not, barred by the first judgment," Hughes v. Hebert, 106 N.H. 176, 178, 207 A.2d 432, 433 (1965) (quotation omitted), we see no reason to treat a voluntary nonsuit any differently than a dismissal for failure to prosecute......