Town of Hampton v. Palmer

• Decision Date: 01 July 1954
• Citation: 99 N.H. 143,106 A.2d 397
• Parties: TOWN OF HAMPTON v. PALMER et al.
• Court: New Hampshire Supreme Court

Page 397

106 A.2d 397

99 N.H. 143

TOWN OF HAMPTON v. PALMER et al.

Supreme Court of New Hampshire.

Argued June 2, 1954.

Decided July 1, 1954.

Upton, Sanders & Upton, Richard F. Upton, Concord, Frank A. Batchelder and Perkins & Holland, Exeter, for plaintiff.

Sleeper & Mullavey, Exeter, for defendant Mace.

Burns, Calderwood & Bryant, Donald R. Bryant, Dover, for other defendants.

KENISON, Chief Justice.

The plaintiff claims that its remedy at law is inadequate and this action falls within recognized equity jurisdiction. The defendants claim that the plaintiff has an adequate legal remedy and to allow this bill in equity to be maintained would deprive them of their constitutional right to trial by jury. N.H.Const. Pt. I, Art. 20. Both agree that the 'nature of the case and of the relief sought must be looked to for the settlement of the constitutional question,' Daley v. Kennett, 75 N.H. 536, 540, 78 A. 123, 125, 39 L.R.A., N.S., 45, and that the form of action employed or the procedural tag used to describe it are not necessarily determinative. Murphy & Sons, Inc., v. Peters, 95 N.H. 275, 276, 62 A.2d 718. As is so often the case the formula is easy to locate, simple to state and is generally undisputed but its application to specific facts provides no sure guide, is difficult to employ and is generally controverted. The decisions in other jurisdictions are in conflict. See Annotation 117 A.L.R. 9.

The mere fact that title to real estate is involved does not establish the right to a jury trial which deprives equity of all jurisdiction. Hatch v. Hillsgrove, 83 N.H. 91, 138 A. 428, 139 A. 366; R.L. c. 371, § 3; Nixon v. Bonenfant, 97 N.H. 230, 84 A.2d 841; cf. Adams v. Mellian, N.H. 106 A.2d 389. On the other hand the mere fact that there may be several actions against several defendants does not establish that the remedy at law is inadequate. Allbee v. Elms, 93 N.H. 202, 37 A.2d 790. The pleadings in this case indicate that it will involve much documentary material and ancient documents and records, some of which date from colonial times. With the exception of the defendant Doggett there is an identity of issues and a community of interests sufficient to invoke equity jurisdiction. Complete relief could not be obtained in the law actions originally brought. There is precedent for this basis of equity jurisdiction in Smith v. Bank, 69 N.H. 254, 45 A. 1082. See Page v. Whidden, 59 N.H. 507. 'Avoidance of a multiplicity of actions in equity makes for economy in trial procedure and for greater consistency in discretionary findings.' Allbee v. Elms, supra, 93 N.H. 203, 37 A.2d 791; 1 Pomeroy, Eq.Jur. (5th ed.) §§ 181, 269; 45 Harv.L.Rev. 1297. While the decisions in this state indicate a strong tendency to uphold the right of trial by jury whenever possible, Murphy & Sons, Inc., v Peters, 95 N.H. 275, 62 A.2d 718; Employers Liability Assurance Co. v. Tibbetts, 96 N.H. 296, 75 A.2d 714, we have not hesitated to permit equity jurisdiction where it involves accounting, injunction and relief from multiplicity of suits involving substantially identical issues. Nixon v. Bonenfant, supra; Berry v. Whidden, 62 N.H. 473.

The difficulties resulting from a multiplicity of suits may be avoided to a certain extent if the suits are consolidated and tried together. Salganik v. United States Fire Ins. Company, 80 N.H. 450, 452, 118 A. 815; Dartmouth College v. Cameron, 77 N.H. 66, 67, 87 A....