Town of Gilmanton v. Champagne

• Decision Date: 31 August 1976
• Docket Number: No. 7322,7322
• Citation: 363 A.2d 411,116 N.H. 507
• Parties: TOWN OF GILMANTON v. Norman CHAMPAGNE.
• Court: New Hampshire Supreme Court

Page 411

363 A.2d 411

116 N.H. 507

TOWN OF GILMANTON v. Norman CHAMPAGNE.

No. 7322.

Supreme Court of New Hampshire.

Aug. 31, 1976.

Richard P. Brouillard and Charles H. Bradley III, Laconia (Mr. Brouillard orally), for plaintiff.

New Hampshire Legal Assistance, George C. Bruno and Robert D. Gross, Manchester (Mr. Bruno orally), for defendant.

PER CURIAM.

The Superior Court (Loughlin, J.) denied the defendant's motion to strike off his default to a petition by the town of Gilmanton for an injunction to compel the defendant to comply with the Gilmanton zoning ordinance. This dispute began five years ago.

In 1970, Gilmanton adopted an ordinance which permitted persons then owning land in the town to live in trailer coaches or mobile homes on their property provided 'that the date of manufacture of subject trailer coach or mobile home shall not be more than two years prior to the application for permit. . . .' On June 16, 1971, the defendant moved a house trailer, manufactured in 1963, onto his property. The following day the town served the defendant in hand with a letter notifying him of the ordinance.

In July 1971, the town filed a criminal complaint charging the defendant with a continuing violation of the ordinance. The defendant was found guilty after a hearing at which he represented himself. In the interval between trial and sentencing the defendant contacted New Hampshire Legal Assistance which referred him to an attorney who agreed to represent the defendant without fee. This attorney filed a motion to dismiss the complaint and challenged the validity of the ordinance. In August 1971, the District Court (Bernard I. Snierson, J.) denied the motion and fined the defendant $1 for each day of violation, $70 in all. A proposed transfer to this court was not made because of a disagreement between the defendant and his counsel. The defendant failed to pay the fine until he was arrested for nonpayment in February 1972.

In May 1972, the town filed its petition for an injunction pursuant to the zoning ordinance to prohibit the defendant from living in the house trailer and to require him to remove the trailer from his premises. The defendant failed to appear, and, in October 1972, the Superior Court (Keller, C.J.) issued the injunction as requested. The town served the defendant with a copy of the decree. In January 1973 the town filed a petition for a writ of capias to enforce the injunction. The defendant did not appear in answer to the petition, so the writ issued and he was arrested. The defendant when went to New Hampshire Legal Assistance. A Legal Assistance attorney filed the present motion to strike the defendant's default to the petition for the injunction. The motion was denied in March 1973. The reserved case was approved in July 1975, and the case was argued in this court in 1976.

The trial court heard the defendant's motion in chambers; no testimony was offered. After the court denied the motion the defendant sought a rehearing and an opportunity to present evidence. The defendant's first exception is to the denial of his motion for rehearing. The practice of submitting motions 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...