Lamberton v. Dinsmore

• Decision Date: 06 December 1910
• Citation: 75 N.H. 574,78 A. 620
• Parties: LAMBERTON et al. v. DINSMORE et al.
• Court: New Hampshire Supreme Court

78 A. 620

75 N.H. 574

LAMBERTON et al.

v. DINSMORE et al.

Supreme Court of New Hampshire. Sullivan.

Dec. 6, 1910.

Transferred from Superior Court, Sullivan County; Pike, Judge.

Bill by Ollie M. Lamberton and another against Kate Dinsmore and another. Transferred on plaintiffs' exceptions. Exceptions sustained.

Bill in equity, brought by husband and wife to enjoin interference with a right of way alleged to be appurtenant to real estate owned by the wife. In a prior suit brought by the present defendants against the husband for trespass to real estate there had been a confession as to part, a brief statement of the right of way and its use by the husband as servant of the wife as a defense to the rest of the alleged wrong, a special verdict that the way existed as pleaded, and judgment on the verdict. The brief statement concluded as follows: "The defendant and the said Ollie M. Lamberton, whose servant and agent this defendant was at the time of the alleged trespass, claim the right as stated, and will show that they have the right to travel over said ancient way leading as stated to and from the lands of said Ollie M. Lamberton for any purpose connected therewith, and that they and those under whom they claim as matter of right have held and used the same from time immemorial for the purposes aforesaid. Ira Colby & Son, Attys. for Deft, and Ollie M. Lamberton." In this proceeding the court (Pike, J.) ruled that the existence of the way had not been established as between Mrs. Lamberton and Dinsmore, and the plaintiffs excepted.

Hosea W. Parker and Ira G. Colby, for plaintiffs.

Edward R. Buck and Scott Sloane, for defendants.

PEASLEE, J. The special defense of a right of way set up in the trespass suit, and the verdict and judgment thereon, settled the title to the way as between the parties to that action. Potter v. Baker, 19 N. H. 166; Bartlett v. Prescott, 41 N. H. 493; Moran v. Mansur, 63 N. H. 377. The question here is whether the wife, Ollie M. Lamberton, was a party to that litigation. This query is not necessarily determined by the record recital of parties plaintiff and defendant. One who is liable over for the acts of the defendant and has notice of the suit is concluded by the judgment therein when thereafter sued by the original defendant. Hubbard v. Gould, 74 N. H. 25, 64 Atl. 668; Boston & Maine R. R. v. Brackett, 71 N. H. 494, 53 Atl. 304; Boston & Maine it. R. v. Sargent, 70 N. H. 299, 47 Atl. 605; Gregg v. Company, 69 N. H. 247, 46 Atl. 20. Whether it is universally true that after such a proceeding the judgment is conclusive between the original plaintiff and the party notified to defend may not be so clear. It is held by some courts that a notice from the defendant which is no part of the record may bind the third party. French v. Parish, 14 N. H, 496, 502. But, if this were done without the knowledge of the plaintiff, it would seem that he would not be bound, and, as the...