Langdell v. E. Basket & Veneer Co.

• Decision Date: 03 October 1916
• Citation: Langdell v. E. Basket & Veneer Co., 99 A. 90, 78 N.H. 243 (N.H. 1916)
• Parties: LANGDELL v. EASTERN BASKET & VENEER CO.
• Court: New Hampshire Supreme Court

99 A. 90

78 N.H. 243

LANGDELL

v. EASTERN BASKET & VENEER CO.

Supreme Court of New Hampshire. Hillsborough.

Oct. 3, 1916.

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

Petition by Samuel F. Langdell for leave to enter a writ of attachment against the Eastern Basket & Veneer Company. Plaintiff allowed to enter his writ as of September, 1914, term, and question of court's powers to enter such order transferred without a ruling. Case discharged.

Petition filed during the January, 1915, term, for leave to enter a writ returnable at the September, 1914, term as of that term. The defendants, a New York corporation, were doing business in this state May 22, 1914, when the plaintiff attached their property. The officer held it until some time after May 26th when he turned it over to receivers appointed by the federal court for the Western district of New York on their agreement to hold it without prejudice to the plaintiff's rights. On July 16th the federal court for the district of New Hampshire appointed the New York receivers ancillary receivers and directed them to take possession of all the defendants' property in this state. At some time after the property had been turned over to the receivers, but just when did not appear, the plaintiff was advised that the proceedings in the federal court dissolved his attachment, and he thereupon directed the officer to abandon it. Nothing more was done until the plaintiff heard that the advice was unsound, when the petition was filed. Hearing by Pike, C. J., who found that the plaintiff should be permitted to enter his writ as of the September term and restored to his rights under the attachment if the court had power to make the order upon the facts stated, and transferred the question of the court's power without a ruling.

James P. Tuttle and Albert H. White, both of Manchester, for plaintiff. Hollis & Murchie, of Concord, and John W. Van Allen, of Buffalo, N. Y., for defendant.

PARSONS, C. J. The court had power to permit the entry of the writ after the return day if failure to enter it in due season was due to accident or mistake, and it would be equitable to permit such entry. Taylor v. Cobleigh, 16 N. H. 105; Chadbourne v. Sumner, 16 N. H. 129, 133, 134, 41 Am. Dec. 720.

Actions entered in a court which has no jurisdiction because the action is local may at any stage of the proceedings be entered in the court in which they should have been brought. Bartlett v. Lee, 60 N. H. 168; Lord v. Walker, 61 N. H. 261; Hayes v. Rochester, 64 N. H. 41, 6 Atl. 274; Tucker v. Lake, 67 N. H. 193, 29 Atl. 406.

A suit brought for one cause of action may be prosecuted for another. Sanborn v. Railroad, 76 N. H. 65, 79 Atl. 642. Procedure is what justice requires. Owen v. Weston, 63 N. H. 599, 603, 604, 4 Atl. 801, 56 Am. Rep. 547.

If Justice requires that a plaintiff who has failed to enter his writ by accident or mistake should be permitted to do so, the court has power to correct the mistake whenever it is discovered, and may as well permit the entry of the suit at a subsequent term as during the one at which it would have been entered but for the mistake. The order necessarily places the plaintiff in the...