Smith v. Tallman

• Citation: 175 A. 857
• Parties: SMITH v. TALLMAN.
• Decision Date: 04 December 1934
• Court: New Hampshire Supreme Court

175 A. 857

SMITH

v. TALLMAN.

Supreme Court of New Hampshire.

Dec. 4, 1934.

The writ had been duly entered and the municipal court had jurisdiction of the cause, and there was no defect in the process, no dispute as to parties, declaration, ad damnum, service, or any other matter making doubtful to the court or to the defendant either the jurisdiction or the nature of the action. Furthermore, the defendant had a copy of the writ which had been served on him, and his counsel on return day made full examination in court of the original writ, and had every opportunity to know all matters in issue or bearing upon the validity of the process.

Exceptions from Municipal Court of Charlestown.

Action by Alfred C. Smith against Lucius S. Tallman. Judgment for the plaintiff, and the defendant brings exceptions.

Exceptions overruled.

Assumpsit on the common counts; ad damnum $75.

The municipal court of Charlestown has no clerk. The writ was not signed by the justice or special justice as clerk. It was entered in court on the return day, November 25, 1933. The defendant on that day appeared specially by counsel and filed a motion to dismiss on the ground that the writ was "not signed by the Clerk, and was not signed by the Justice or Special Justice as Clerk, and is therefore void." The motion was taken under consideration by the justice, but was never passed on by him, since he conceived himself disqualified.

On May 28, 1934, the case was called up by the plaintiff before the special justice, at which time the writ could not be found, though it had been in court on the return day. The defendant, without waiving his former motion to dismiss, and still appearing specially, objected to further proceedings on the ground that the action had never been continued and was therefore out of court, and on the further ground that the writ was not in court, was not properly accounted for, and had never been presented to the special justice. The motion to dismiss and the objections to further proceedings were overruled, and the defendant excepted.

The case was called up by the plaintiff for hearing on the merits June 2, 1934, before the special justice. The writ was still not in court, but the copy served on the defendant was produced. The defendant's attorney, still appearing specially, renewed his objections to further proceedings, which were again overruled, subject to exception. The plaintiff then introduced evidence on the merits, but the defendant took no part in the hearing on the merits. Judgment was given for the plaintiff, and the defendant excepted on the ground that the court had no jurisdiction.

The plaintiff then asked the special justice to rule that "it is the custom of this (Municipal) Court to continue cases from term to term, when deemed by the Court advisable." The defendant's counsel objected that such a ruling was incompetent and unsupported by evidence. The ruling was made, and the defendant excepted. There is no record that the case was continued, and no evidence of continuance other than the ruling as to custom.

Other facts appear in the opinion.

James D. Spooner, of Claremont, for plaintiff.

Hugh Moore, of Claremont, for defendant.

PAGE, Justice.

"All writs issuing out of the clerk's office in any of the courts of law, shall be in the name of the state of New Hampshire; shall be under the seal of the court whence they issue, and bear test of the chief, first, or senior justice of the court; but when such justice shall be interested, then the writ shall bear test of some other justice of the court, to which the same shall be returnable; and be signed by the clerk of such court." Const, pt. 2, art. 87.

"Writs and processes issuing returnable to any court shall be in the name of the State of New Hampshire, shall be under the seal of the court, shall bear teste of the chief, first, senior or other justice of the court who is not a party, and shall be signed by the clerk. * * *" P. L. c. 330, § 2. This act had its origin in the Act of February 9, 1791.

The requirement of the signature of the clerk, in both the Constitution and the statute, is for the purpose of authenticating the writ. Obviously this might have been done by requiring the signature of a justice, but the framers of the Constitution of 1784 and of the statute of 1791 adopted what was already the practice in the three organized courts of the state (2 Laws of New Hampshire, 136, 137, 303-307) and provided for authentication by signature of the clerk.

The act of 1791, 5 Laws of New Hampshire, 621, applied the constitutional test to writs and processes issuing from the three organized courts having clerks, but provided that all writs issuing from any justice of the peace should be in the form prescribed by law, should be under seal, and should be signed by the justice. Since justice's courts were unorganized and had no clerks, the constitutional provision had no application to them, and neither then nor since has it been necessary for process issued by a justice of the peace to be authenticated in any way except by a seal and the signature of the justice.

When police courts came into being in 1852 to assume some of the jurisdiction of justices of the peace, there was at first no provision for clerks (Laws 1852, c. 1282, § 8), hence no question could arise about the authentication of writs; the police courts would follow the forms of process issued by justices of the peace.

In connection with the revision of 1867, a provision was inserted that the justice of a police court might appoint a clerk if provision was made for...