Moore v. Dailey
| Citation | 86 A.2d 342,97 N.H. 278 |
| Parties | MOORE v. DAILEY et al. |
| Decision Date | 05 February 1952 |
| Court | Supreme Court of New Hampshire |
Frederick J. Grady, Derry, Hughes & Burns and Robert E. Hinchey, all of Dover, for the plaintiff.
Gordon M. Tiffany, Atty. Gen., John N. Nassikas, Asst. Atty. Gen., and Arthur E. Bean, Jr., Law Asst., Concord, specially for the State.
It is too well established to require extended citation that the State can not be sued without its consent. Rothrock v. Loon Island, 96 N.H. 421, 78 A.2d 512. It also seems clear under our law that the trustee process here is actually a suit against the State, Klinger v. Cartier, 96 N.H. 180, 71 A.2d 786, and as such it is barred unless there has been a waiver by the State of its immunity. Concededly, there is no express statute which may be so construed and we do not believe c. 243, Laws 1951, which has been called to our attention, authorizes by implication any such radical departure from our long established rule as to permit judgment against the State by trustee process. The only provision in our statutes specifically permitting trustee process on the State, R.L. c. 412, § 9, does not include such cases as the present, which is a powerful, if not conclusive argument against the plaintiff here. State v. Wilton Railroad Co., 89 N.H. 59, 61, 192 A. 623, 111 A.L.R. 52, and cases cited. However, the plaintiff claims that Specification 7.12 of the State highway department's specifications adopted by the department, 'an agency of the State,' is a waiver in fact. This specification so far as material provides that the contractor shall save harmless the State from all actions on account of any injuries sustained by any person due to negligence of the contractor, or claims arising under the Workman's Compensation Law. It further provides that so much of the money due the contractor as the highway commissioner may deem necessary may be 'retained for the use of the State, or in case no money is due, his Surety shall be held until such suit * * * or claim * * * shall have been settled and suitable evidence to that effect furnished to the Commissioner.' We do not believe this specification can be construed as any express or clearly implied waiver by the State or as any delegation of authority to the State Treasurer to waive its immunity. Bow v. Plummer, 79 N.H. 23, 104 A. 35; State v. Kimball, 96 N.H. 377, 380, 77 A.2d 115. The plaintiff argues persuasively that this results in an injustice in this...
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Patey v. Peaslee
...to inherit a share of his wife's property (RSA 560:18, 19), and the presumption is that no others were to be included. Moore v. Dailey, 97 N.H. 278, 279, 86 A.2d 342; Carbonneau v. United States Cas. Company, 97 N.H. 438, 443, 91 A.2d 449. Neither of the required causes exists here. The que......
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State v. A. D. Ingalls, Inc.
...Bankruptcy, s. 857, p. 638. By parity of reasoning the fact that the laborers and materialmen could not trustee the State (Moore v. Dailey, 97 N.H. 278, 86 A.2d 342) should not affect the rights of the parties. If the State had been subject to trustee process, no creditor who served it with......
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City of Manchester v. Manchester Teachers Guild
...engaged in a governmental function, Cushman v. Grafton County, 97 N.H. 32, 79 A.2d 630, as well as its immunity from suit, Moore v. Dailey, 97 N.H. 278, 86 A.2d 342: D'Amours v. Hills, 96 N.H. 498, 79 A.2d 348, the underlying basis for the policy against strikes by public employees is the d......
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Wiseman v. State
...axiomatic that the State is not subject to suit without its consent. Bow v. Plummer, 79 N.H. 23, 104 A. 35 and cases cited; Moore v. Dailey, 97 N.H. 278, 86 A.2d 342. To establish such consent the plaintiffs rely upon Laws 1951, c. 243, conferring jurisdiction upon the Superior Court 'to en......