Hutchinson v. Manchester St. Ry.

• Decision Date: 03 May 1905
• Parties: HUTCHINSON v. MANCHESTER ST. RY.
• Court: New Hampshire Supreme Court

60 A. 1011

73 N.H. 271

HUTCHINSON

v. MANCHESTER ST. RY.

Supreme Court of New Hampshire. Hillsborough.

May 3, 1905.

Transferred from Superior Court.

Action by Charles H. Hutchinson against the Manchester Street Railway. A judgment was rendered in favor of plaintiff, and the case was transferred to the Supreme Court on a bill of exceptions. Exceptions overruled.

Burnham, Brown, Jones & Warren, for plaintiff. Streeter & Hollis and Taggart, Tuttle, Burroughs & Wyman, for defendants.

PARSONS, C. J. After judgment and execution against the defendants in the superior court, application was made by petition to the supervisory power of this court for the correction of alleged errors in the proceedings, and for an injunction restraining the collection of the execution. Section 5, c. 78, p. 563, Laws 1901, provides for the transfer of questions of law arising in the trial of any case in the superior court to this court for final decision, upon a case or statement of facts reserved by the trial justice; also that "any party aggrieved by the ruling, direction, or judgment of the superior court, seasonably objecting, may allege exceptions thereto in writing, which, being conformable to the truth of the case, shall be allowed by the trial justice and be entered in the Supreme Court for determination." The same act also provides (section 7, p. 564) that "the Justices of the Supreme Court shall do and perform all the duties reasonably requisite and necessary to be done by a court of final jurisdiction of questions of law and general superintendence of inferior courts." The petition therefore presented the question of the jurisdiction of this court to determine questions of law arising in the superior court, which were not brought here by exceptions duly allowed by a justice of the superior court, or transferred upon a case reserved by such justice; and also whether, pending the examination of questions so presented, this court could issue a restraining order against the process of the superior court.

The plaintiff duly appeared in answer to the petition, and disclaimed any purpose to proceed with the collection of the execution pending the decision of this court. It was therefore considered unnecessary to entertain the serious questions that have been suggested, and at the March session, 1904, the defendants were granted permission to apply for a bill of exceptions, and to file the same, when obtained, as an amendment to the petition. Such course has been pursued. By the bill it appears that the matter of which the defendants complain, and to which alone their exceptions relate, is that they were required by the superior court to proceed with the trial of the case February 22, 1904, before a jury and the member of the superior court then presiding in the session of the court then held at Manchester, where the case was pending and regularly in order for trial. After various postponements at the request of the defendants, the cause was finally set for trial by the jury upon that day it the opening of the court counsel for the defendants filed a motion for continuance upon the ground that their general counsel, who was relied upon to try the case, was unable, by reason of sickness, to attend court or conduct the trial. The court denied the motion for continuance, and the defendants excepted. No question of law is raised by this exception. "The motion for continuance raised a question of fact, and all such questions are for the trial term." White v. Dearborn, 70 N. H. 622, 45 Atl. 1090; Clark v. Clough, 62 N. H. 693. The thirtieth rule of court (71 N. H. 680), providing for a continuance in case of the absence on account of sickness, or other sufficient reason, of counsel who have been relied upon to conduct a trial, does not, by its terms, give the absolute right of continuance claimed. The ease is to be continued only if other counsel cannot be seasonably and properly instructed. It appears that at the September term, 1903, a considerable number of actions of a similar nature to the present were pending against the defendants, and that upon the defendants' request all of these cases were continued because of the illness of another of the defendants' counsel. In January one of these cases was tried, with the assistance of the counsel whose illness was urged for a further continuance of this case. February 2d the defendants knew that the counsel named in the affidavit would be unable to take part in further trials, and then moved for the continuance of all cases of this character against them. Counsel for the plaintiffs objected, and especially insisted upon a trial in the present case and that of one Villineuve. The motion for continuance was denied as to these two cases. The Villineuve case, which had been set down for February 3d, was postponed to February 15th, to be followed by this case. On February 15th counsel for the defendants appeared in court, and again moved to continue the Hutchinson case on account of the illness of their general counsel. The court ruled that the motion was disposed of February 2d, and again denied the motion. Trial of the Villineuve case then proceeded, the defendants being represented by able counsel. That case was finished February 18th, and an adjournment was had to February 22d. At the hearings upon the motions for continuance counsel for the plaintiff stated that his client, because of the injury for which suit was brought, was in feeble health; that he desired to testify in his case, and probably could never do so if the case was not then tried. This statement was not contradicted or questioned. Upon this state of facts the question was whether justice required that the plaintiff should have an opportunity to try his case himself, or the defendants be inconvenienced by being required to employ and instruct new counsel, if such could be done. This question was decided February 2d in favor of the plaintiff, and it is plain that there was evidence upon which the fact could properly be so found. It is not claimed that between February 2d and February 22d any change had developed in the situation, and the motion of that date could properly have been disposed of upon the ground that the question presented was adjudicated three weeks before.

The foregoing motion having been disposed of, the defendants presented a second motion, in which the only relief asked was a continuance of the cause. As a motion for continuance the exception to its denial is disposed of by what has already been said. The defendants claim that this motion was a recusation of the presiding judge. If the judge then presiding was disqualified to try the ease, it was the right and duty of the defendants to bring the matter to his attention by petition or motion setting forth the facts relied upon as a disqualification, and requesting that he should not sit upon the trial of the cause. If the facts alleged are true, and sufficient in law to disqualify the judge present, the relief to which the party objecting is entitled is not a continuance, but to have some qualified judge proceed with the trial. But to protect their rights it was sufficient for the defendants to call attention to the disqualification of the presiding judge. If disqualified, it was his duty to withdraw from the case. But "a judge ought not to withdraw upon a mere suggestion, unless the cause of recusation is true in fact and sufficient in law; because the office of judge is one necessary for the administration of justice, and from which a judge should not be permitted to withdraw without sufficient grounds." Moses v. Julian, 45 N. H. 52, 53, 84 Am. Dec. 114. Two questions were therefore presented by the defendants' motion: (1) Were the facts alleged true? and (2) if true, did they constitute legal disqualification? If the facts alleged are not admitted, it is said in Moses v. Julian that it is the duty of the party objecting to lay before the court proof of their truth, to be passed upon by the judge himself, if alone. The defendants contend that the judge, if disqualified to try the main cause, could not he qualified to pass on any question in relation to it. There is great force to this argument, so far as matters of fact are involved; hut upon the legal question whether the facts alleged are sufficient in law the defendants are fully protected by their exception. Assuming, therefore, for the purpose of the discussion, that the defendants are right in their contention that the presiding justice under the circumstances had no authority to pass upon the truth of the matters alleged, the question is, whether, assuming the facts to be as alleged, these facts as matter of law disqualified the justice then presiding from further action in the cause. The motion was as follows: "The defendant further says that, having tried the Hanson case, so called, in strict conformity with the rules of law, as it is informed and believes, but not agreeably to the views of the presiding justice, as later appeared, and the justice after said trial having said to defendant's counsel, among other things, that if it was proposed to try further cases by the methods of the Hanson case by taking so many exceptions to evidence and to so many things done by the court and plaintiff's counsel, the defendant must expect no concession from this court; and, said justice having denied the defendant's motion for a continuance this day filed, and based upon facts known or exhibited to said justice, the defendant is led to fear and believe that it will not be able to have a judicial trial at this time." The only fact directly alleged is the defendants' fear and belief that at the time they could not have a judicial trial. If the defendants meant to be understood as alleging their fear or belief that they could not have a fair trial before the judge then presiding, their fear or belief on the subject did not disqualify the judge.

At common law, interest in the cause was the only ground...