Massachusetts Bonding & Ins. Co. v. Nudd

Decision Date04 October 1960
Citation164 A.2d 242,103 N.H. 1
CourtNew Hampshire Supreme Court

Russell H. McGuirk, New Market and Robert Shaw, Exeter, for plaintiff.

Broderick, Manning & Sullivan, Manchester, M. A. Broderick, Manchester, orally, for defendant.

LAMPRON, Justice.

'As a general rule, notice and an opportunity to be heard are basic essentials of a judicial proceeding.' DiPietro v. Lavigne, 98 N.H. 294, 295, 99 A.2d 413, 414. Also 'it is important that cases be decided on their merits, that a party have his day in court * * *. It is likewise important that litigation be concluded finally and with reasonable dispatch and that the dilatory shall not be rewarded at the expense of the diligent.' Lewellyn v. Follansbee, 94 N.H. 111, 114, 47 A.2d 572, 573. However the application of these well known principles to a particular set of facts often presents difficulties as is the case here.

It is admitted that a copy of the writ by which the instant action was instituted was served on the defendant on September 27, 1957 in accordance with the requirements of RSA ch. 510. However it has been alleged by the defendant in her affidavit of defense filed with her motion to strike off her default that the copy of the writ served on her contained neither specifications nor a special declaration. She further alleges that when the original writ was entered in court there was attached thereto and made a part thereof a special declaration containing a plea of case based on an agreement between the parties relative to the posting of a bond by the plaintiff for her in the conservatorship of her brother Charles. This writ contained the usual return by the sheriff that he had summoned the defendant by giving her in hand a true and attested copy thereof. RSA 510:2. We find no denial by the plaintiff of these allegations in the record before us.

Rule 17 of the Superior Court (99 N.H. 609, 610) provides that in actions upon special declaration 'where the writ does not contain a special declaration at the time of service, such writs will not be accepted for entry unless a motion to amend, containing the special declaration, accompanies the writ with a return of plaintiff's attorney that a copy of the motion has been mailed or delivered to defendant or counsel for defendant.' The record discloses no such motion but does contain the letter written on September 27, 1957, by plaintiff's counsel to the attorney for the defendant bearing the same date as that of the writ which conveyed the following information. 'On Wednesday I conferred with the Massachusetts Bonding & Insurance Company who had received from George Scammon attorney for the estate of Charles Rudd an execution demanding payment in full. This execution is for $1200 and some dollars. * * * I can see no alternative but that the Bonding Company will have to pay to the administrator the full amount of the execution. * * * I have this date brought suit against Christine Nudd and made a real estate attachment to secure any judgment obtained.'

Defendant herself received notice that an action was being instituted against her by the...

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4 cases
  • Douglas v. Douglas
    • United States
    • New Hampshire Supreme Court
    • March 10, 1999
    ...her that she must be available in person, and that she could not simply send counsel in her absence. See Massachusetts Bonding Co. v. Nudd , 103 N.H. 1, 3, 164 A.2d 242, 243 (1960) ( "notice and an opportunity to be heard are basic essentials of a judicial proceeding" (quotation omitted)); ......
  • Town of Gilmanton v. Champagne
    • United States
    • New Hampshire Supreme Court
    • August 31, 1976
    ...has twice failed to appear in response to summons. We cannot say that the trial court abused tis discretion. Massachusetts Bonding Co. v. Nudd, 103 N.H. 1, 164 A.2d 242 (1960); Lewellyn v. Follansbee, 94 N.H. 111, 47 A.2d 572 Defendant's exceptions overruled. ...
  • Cole v. Hobson
    • United States
    • New Hampshire Supreme Court
    • September 24, 1998
    ...argument is without merit because the defendant received sufficient notice of the proceedings. See Massachusetts Bonding & Ins. Co. v. Nudd, 103 N.H. 1, 4, 164 A.2d 242, 244 (1960). Finally, having reviewed the record regarding the defendant's remaining arguments, we conclude that they eith......
  • d'Agincourt v. Anderson Foreign Motors, Inc., 79-035
    • United States
    • New Hampshire Supreme Court
    • June 20, 1979
    ...Baillargeon v. Brodhead Ford Sales, Inc. supra, or that there was any denial of due process. See Massachusetts Bonding and Insurance Co. v. Nudd, 103 N.H. 1, 164 A.2d 242 (1960). Exception All concurred. ...

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