Kennedy v. Shaw, 78-148

CourtSupreme Court of New Hampshire
Citation119 N.H. 99,398 A.2d 834
Docket NumberNo. 78-148,78-148
PartiesWilliam KENNEDY v. Robert SHAW et al.
Decision Date28 February 1979

Hall, Morse, Gallagher & Anderson, Concord (G. Wells Anderson, Concord, orally), for plaintiff.

Robert Shaw, Exeter (Norman C. Gile, Exeter, orally), for defendant.

LAMPRON, Chief Justice.

This case is a bill in equity seeking diverse relief arising out of certain transactions between the parties. At a hearing, the Trial Court (Goode, J.) considered as confessed, under Superior Court Rule 222, RSA 491:App. R. 222 (Supp.1977), the plaintiff's amendment to his bill seeking the discharge of two mortgages hereinafter described, and decreed the relief sought. The defendant excepted to the court's entering the final decree without allowing him to submit a defense. Defendant's exceptions were transferred. We uphold the action of the trial court.

The plaintiff's bill sought an accounting and requested the court to impose a constructive trust on monies that were obtained by the defendant Shaw, who was the plaintiff's attorney, in the foreclosure sale of business and personal property that was once owned by the plaintiff. The bill also sought to discharge numerous mortgages that the defendant held on business and personal property of the plaintiff.

While the bill in equity was pending, the plaintiff filed a motion in the superior court requesting that the court order the defendant to execute a subordination agreement on a second mortgage that was held by the defendant on the plaintiff's personal residence. The plaintiff filed an additional motion requesting that his wife, Carol Kennedy, be added as a party plaintiff to the original bill, and that he be permitted to add a second count to the original bill. This second count, pursuant to RSA 479:10, requested a discharge of mortgages on the plaintiff's personal and business property that was held by defendant's secretary, who was his straw party in the transactions. The defendant failed to object to this motion, so it was granted. In addition, the defendant failed to answer the allegations set forth in the plaintiff's added count, so it was ordered confessed on December 1, 1978, pursuant to Superior Court Rule 222.

On January 3, 1978, a hearing in superior court was held on the plaintiff's motion to compel the defendant to subordinate his second mortgage. At the close of the plaintiff's case, his counsel moved that the confessed count, the petition for discharge of the two mortgages, be brought forth for disposition. Plaintiff's counsel requested that the court grant the petition to discharge the mortgages rather than the motion to subordinate previously sought, arguing that the mortgage discharge would provide more complete relief than would subordination. The defendant, who was representing himself, excepted to the bringing forth of this count. He argued that he was unfamiliar with the confessed count and that it would be a "miscarriage of justice" to grant the relief requested by the plaintiff. Two days after the hearing, without leave of court, the defendant filed an answer to the count that had been ordered confessed.

On January 9, 1978, the trial court issued its findings and rulings. The court "overruled" defendant's late answer, and considered the second count as confessed. Accordingly, the relief that was requested in the plaintiff's amended bill was granted and it was decreed that the two notes and the two mortgages securing them be discharged. The first is a mortgage by William R. Kennedy, Carol Kennedy, and Kennedy's Restaurant to Elizabeth Kudaruska dated December 22, 1969, and recorded in volume 1999 page 148 of the Rockingham County Registry of Deeds. The second is a mortgage from William Kennedy and Carol Kennedy to Elizabeth Kudaruska dated April 6, 1971 and recorded in volume 2062 page 478 of the same registry.

The defendant challenges the trial court's issuance of the final decree, which discharged the mortgages. Although the defendant admits that he failed to answer in timely fashion the amended bill, he asserts that it was an abuse of discretion for the trial judge not to permit his late answer and to refuse to set aside the confessed pleading. Consequently, he argues that the final decree should be set aside by this court.

A defendant must answer an amended equity bill within ten days after it is filed and delivered to the defendant's attorney. Sup.Ct. Rule 222; RSA 491:App. R. 222 (Supp.1977). If the defendant fails to answer within the prescribed time period the amended bill shall be taken as confessed. Id. A court's order declaring the confession is called a judgment or decree Pro confesso. See H. Gibson, Suits in Chancery § 205 (1916); 27 Am.Jur.2d Equity § 221 (1966). The decree Pro confesso is an interlocutory order, and may be entered as soon as the default appears. Sup.Ct. R.216; RSA 491:App. R.216...

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6 cases
  • Newman v. Newman
    • United States
    • Supreme Court of Connecticut
    • 15 de agosto de 1995
  • Douglas v. Douglas
    • United States
    • Supreme Court of New Hampshire
    • 10 de março de 1999
    ...of law). The decree pro confesso , like the entry of a default, is merely an interlocutory order, see, e.g. , Kennedy v. Shaw , 119 N.H. 99, 101, 398 A.2d 834, 836 (1979) (decree pro confesso ); 5 R. Weibusch, supra § 33.02, at 60 (default), and as such entry of a judgment pro confesso or d......
  • Douglas v. Douglas, 97-878.
    • United States
    • Supreme Court of New Hampshire
    • 10 de março de 1999
    ...conclusions of law). The decree pro confesso, like the entry of a default, is merely an interlocutory order, see, e.g., Kennedy v. Shaw, 119 N.H. 99, 101, 398 A.2d 834, 836 (1979) (decree pro confesso); 5 WEIBUSCH, supra § 33.02, at 60 (default), and as such entry of a judgment pro confesso......
  • Chasse v. Banas
    • United States
    • Supreme Court of New Hampshire
    • 28 de fevereiro de 1979
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