Simpson v. Gafney
Decision Date | 31 July 1891 |
Citation | 30 A. 1120,66 N.H. 477 |
Parties | SIMPSON v. GAFNEY. |
Court | New Hampshire Supreme Court |
Exceptions from Strafford county.
Charles B. Gafney, executor of the estate of Lois Merrill, appealed from the decision of the commissioners allowing to Roxana E. Simpson $1,000. The jury returned a verdict for Simpson of $2,500, which verdict was set aside when the executor moved that his appeal be dismissed. The motion was granted, and the plaintiff excepted. Overruled.
W. S. & D. R. Pierce, for plaintiff.
Worcester & Gafney and John Kivel, for defendant.
The plaintiff may become nonsuit at any time before trial. Webster v. Bridge water, 63 N. H.296; Farr v. Cate, 58 N. H. 367; Fulford v. Converse, 54 N. H. 543; Wright v. Bartlett, 45 N. H. 289; Judge of Probate v. Abbott, 13 N. H. 21. The executor, having taken the appeal, might abandon it by neglecting to give notice to the creditor. Gen. Laws, c. 200, § 3; Varrell v. Varrell, 57 N. H. 208. The obligation of the creditor to enter and prosecute his claim to judgment (Gen. Laws, c. 200, §§ 5, 7) is avoided by the abandonment of the appeal by the party taking the same. The appellant, for the purpose of maintaining his appeal, is in the same' position as the plaintiff in a civil suit, and may abandon the same at any time before a trial is entered upon. Doughty v. Little, 61 N. H. 365. That there had been a trial, and a verdict, which had been set aside, is immaterial, because, after a verdict rendered and set aside, the same rules and remedy apply as if the cause had never before been tried. Wright v. Bartlett, supra. The appeal being dismissed upon motion of the appellant,—that Is, abandoned by him,— the allowance by the commissioner, and...
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Town of Plaistow v. Riddle
...let the judgment of the court below 'stand as if no appeal had been taken.' " Id. at 730, 599 A.2d at 117 (quoting Simpson v. Gafney, 66 N.H. 477, 477, 30 A. 1120, 1120 (1891)). An "appeal," as that word was used in Nolan, refers to an appeal of a judgment to the supreme court, not an admin......
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Appeal of Nolan, 90-151
...of withdrawing an administrative agency appeal. A voluntary nonsuit is allowable after an appeal has been taken, Simpson v. Gafney, 66 N.H. 477, 30 A. 1120 (1891), up until the time at which it would be " 'manifestly unjust to the other side' " to allow it, Total Service, Inc. v. Promotiona......
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Hinchey v. National Sur. Co.
...The cases relied on by them in which the plaintiffs were permitted to take a nonsuit after the verdict was set aside, Simpson v. Gafney, 66 N.H. 477, 30 A. 1120, and after the case had been reopened by Court order for further evidence, Saykaly v. City of Manchester, 97 N.H. 4, 79 A.2d 625, ......
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Barrett v. Cady
...seem that the plaintiff had the right as matter of law to dismiss his bill. Hood v. Marshall, 69 N. H. 605, 45 Atl. 574; Simpson v. Gafney, 66 N. H. 477, 30 Atl. 1120; Webster v. Bridgewater, 63 N. H. But the bill should have been dismissed because it was not maintainable upon the facts all......