Springer v. Hungerford

• Decision Date: 26 March 1957
• Citation: 130 A.2d 538,100 N.H. 503
• Parties: Harold SPRINGER et al. v. Richard H. HUNGERFORD, Supt. Laconia State School.
• Court: New Hampshire Supreme Court

Page 538

130 A.2d 538

100 N.H. 503

Harold SPRINGER et al. v. Richard H. HUNGERFORD, Supt. Laconia State School.

Supreme Court of New Hampshire.

Argued Feb. 6, 1957.

Decided March 26, 1957.

Sleeper & Mullavey, Exeter, Wayne J. Mullavey, Exeter, for plaintiffs.

Louis C. Wyman, Atty. Gen., Arthur E. Bean, Jr., Asst. Atty. Gen. and William E. Lovejoy, Law Assistant, Claremont, for defendant.

KENISON, Chief Judge.

The plaintiffs seek the release of their minor child from the defendant's custody on the ground of noncompliance with the juvenile court law. Their first contention is that although juvenile delinquency proceedings may be heard 'in an informal manner', RSA 169:9 and the court is not bound 'by the technical rules of evidence', RSA 169:26, the court must hear evidence under oath. See annotation 43 A.L.R.2d 1128. The second contention is that no minor can be committed to the Laconia State School until notice has been given that the sanity of the minor child is in issue and there has been a finding that the child is either feeble-minded or insane. RSA 169:18. The precise nature of the first contention appears in the record as follows: 'Court: Your position is not, Brother Mullavey, that the Court was without jurisdiction but rather they committed an error within the framework of its jurisdiction by receiving evidence without being sworn? Mr. Mullavey: That's right, your Honor. Court: By receiving unsworn evidence in testimony. Mr. Mullavey: Yes.'

At the threshold of the dispute, however, we are faced with the proposition that habeas corpus is not the proper remedy and that the questions attempted to be transferred should be determined on the pending appeal. New Hampshire has usually followed the general common-law rule that habeas corpus is not a substitute for an appeal or writ of error or other similar proceedings for the review by a court of competent jurisdiction of errors and irregularities. State ex rel. Barnes v. Shattuck, 45 N.H. 205; Kruzas v. O'Dowd, 83 N.H. 173, 139 A. 580. The distinction has been stated in State ex rel. Welsh v. Towle, 42 N.H. 540, 541 as follows: 'There is no doubt of the power of the court to look into the proceedings so far as to see whether the court pronouncing sentence had jurisdiction to do it. If it be found that it had no jurisdiction its judgment is void, and on habeas corpus the person imprisoned under it will be discharged. But if the court had jurisdiction of the subject matter and the party, its judgment is final and conclusive, and must stand until revised by appeal, writ of error, certiorari, or other proceeding in some higher court, instituted for that purpose; and can not be examined and revised collaterally by the writ of habeas corpus.' To the same effect see State v. Coan, 91 N.H. 489, 23 A.2d 369; 76 A.L.R. 468.

When a petition for habeas corpus does not lie we have frequently treated the petition as though it were amended into the proper proceeding whenever the record below was such that the question could be disposed of in this court. Carpenter v Berry, 95 N.H. 151, 59 A.2d 485; Fitzgibbons v. Hancock, 97 N.H. 162, 82 A.2d 769. If the municipal court of Portsmouth had no jurisdiction in this matter, it is clear that habeas corpus would be a proper proceeding to obtain the release of the minor child. State ex rel. Cunningham v. Ray, 63 N.H. 406. However, if the procedure in the municipal court of Portsmouth was irregular or defective, this does not necessarily deprive it of jurisdiction or make its committal order void. Petition of Morin, 95 N.H. 518, 68 A.2d 668.

We are unable to...