Theriault v. Theriault

CourtSupreme Court of New Hampshire
Writing for the CourtKENISON
Citation104 N.H. 326,184 A.2d 459
PartiesMurielle THERIAULT v. Donald THERIAULT.
Decision Date30 November 1962

Page 459

184 A.2d 459
104 N.H. 326
Supreme Court of New Hampshire.
Submitted Oct. 3, 1962.
Decided Nov. 30, 1962.

Harry Weistrop, Whitefield, for plaintiff, furnished no brief.

Arnold P. Hanson, Berlin, for defendant, furnished no brief.

KENISON, Chief Justice.

The defendant objected to the motion to reopen the divorce proceedings and the petition for rehearing on the grounds that the pleadings were not verified by affidavit as required by rule of court; the evidence sought to be introduced was not new evidence; and that the allegations in the petition for rehearing as to the paternity of the child were contrary to the plaintiff's allegations in her prior petition for legal separation.

'In this state it is provided by a rule of court that no motion [104 N.H. 327] grounded upon facts that do not appear in the record or papers on file in the case, or that are not agreed to in writing, will be heard by the court, either in support of or in opposition to the motion, unless the facts are verifiedby

Page 460

affidavit.' Goodwin v. Blanchard, 73 N.H. 550, 551, 64 A. 22, 23, Rule 45 of the Rules of the Superior Court, 99 N.H. Appendix, p. 614. While this rule is well established and of ancient lineage, it does not preclude the court from hearing a motion or petition involving an issue of fact upon oral testimony of witnesses or statement of counsel. Goodwin v. Blanchard, supra; Blodgett v. Park, 76 N.H. 435, 438, 84 A. 42: Pike v. Scribner, 101 N.H. 314, 316, 142 A.2d 154. While the plaintiff's pleadings to reopen and rehear the matter were not verified by affidavit, it does not appear that the Court's denial of the motion and petition was based on this procedural ground. Huey v. West Ossipee Mine, Inc., 81 N.H. 103, 122 A. 334; Morin v. Traveler's Insurance Company, 85 N.H. 471, 160 A. 482; Carpenter v. Carpenter, 78 N.H. 440, 101 A. 628, L.R.A.1917F, 974.

The plaintiff's motion and petition to reopen and rehear the divorce proceedings did not allege new evidence which was not available to the plaintiff at the time of the original hearing. Insofar as the motion and petition casts doubt on the paternity of the child, it is clear that this was certainly evidence within the knowledge of the plaintiff which if true could have been alleged in the previous petition. The Court stated that custody of the child would not be awarded to the mother in any event even if a rehearing were to be granted. In this...

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4 cases
  • Arizona Real Estate Dept. v. Arizona Land Title & Trust Co., 2
    • United States
    • Court of Appeals of Arizona
    • 24 December 1968
    ...may permit the reception of oral testimony. Skouland v. Skouland, 201 Cal.App.2d 677, 20 Cal.Rptr. 185 (1962); Theriault v. Theriault, 104 N.H. 326, 184 A.2d 459 (1962); 60 C.J.S. Motions and Orders § We consider first whether the broker was acting as such in converting the money. At the ti......
  • McAlpin v. McAlpin, 86-161
    • United States
    • Supreme Court of New Hampshire
    • 9 October 1987
    ...prevented from presenting it by fraud or deception. Rollins v. Rollins, 122 N.H. 6, 9, 440 A.2d 438, 440 (1982); Theriault v. Theriault, 104 N.H. 326, 327, 184 A.2d 459, 460 III. Brokerage Account Although we hold that the trial judge did not abuse his discretion in dividing the camp procee......
  • Town of Gilmanton v. Champagne, 7322
    • United States
    • Supreme Court of New Hampshire
    • 31 August 1976
    ...on the statements of counsel is well established in this State. Wein v. Arlen's, 98 N.H. 487, 103 A.2d 86 (1954); Theriault v. Theriault, 104 N.H. 326, 184 A.2d 459 (1962); Salmonsen v. Rindge, 113 N.H. 46, 299 A.2d 926 (1973). The defendant filed a sworn affidavit with his motion to strike......
  • Salmonsen v. Town of Rindge, 6488
    • United States
    • Supreme Court of New Hampshire
    • 31 January 1973
    ...Kusky v. Laderbush, 96 N.H. 286, 74 A.2d 546 (1950); Wein v. Arlen's, Inc., 98 N.H. 487, 103 A.2d 86, 88 (1954); Theriault v. Theriault, 104 N.H. 326, 327, 184 A.2d 459, 460 (1962). We find no error and conclude that the plaintiffs' appeal is untimely because not filed within thirty days af......

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