Town of New Castle v. Rand

• Citation: 101 N.H. 201,136 A.2d 914
• Parties: , 70 A.L.R.2d 669 TOWN OF NEW CASTLE v. Dorothy RAND et al.
• Decision Date: 18 December 1957
• Court: Supreme Court of New Hampshire

Page 914

136 A.2d 914

101 N.H. 201, 70 A.L.R.2d 669

TOWN OF NEW CASTLE v. Dorothy RAND et al.

Supreme Court of New Hampshire.

Argued Dec. 4, 1957.

Decided Dec. 18, 1957.

Waldron, Boynton & Waldron and Richard E. Dill, Portsmouth, for plaintiff.

Griffin, Harrington & Brigham and Robert Marvin, Portsmouth (Wm. F. Harrington, Portsmouth, orally), for defendant Dorothy Rand.

KENISON, Chief Justice.

Traditionally courts in New Hampshire have proceeded on the basic assumption that the orderly dispatch of judicial business is accomplished more efficiently where every plaintiff and every defendant is given adequate opportunity to properly prepare his case before trial. LaCoss v. Town of Lebanon, 78 N.H. 413, 101 A. 364; Lefebvre v. Somersworth Shoe Co., 93 N.H. 354, 358, 41 A.2d 924; State v. Cote, 95 N.H. 108, 111, 58 A.2d 749. Ever since the leading case of Reynolds v. Burgess Sulphite Fibre Co., 71 N.H. 332, 345, 51 A. 1075, 57 L.R.A. 949, parties, under the discretionary control of the Trial Court, have been allowed to obtain information by means of discovery as well as depositions. Wheeler v. Wadleigh, 37 N.H. 55. The parties have not been required to oscillate between law and equity and they have been permitted to obtain evidence in preparation of their cases by motions in law actions as well as by bills in equity. Lincoln v. Langley, 99 N.H. 158, 106 A.2d 383; Therrien v. New England Tel. & Tel. Company, 99 N.H. 197, 108 A.2d 48; Rosenblum v. Judson Engineering Corp., 99 N.H. 267, 109 A.2d 558.

The defendant argues that depositions in perpetual remembrance cannot be used in pending actions since the plaintiff has an adequate and proper remedy by taking depositions in the common form under RSA ch. 517. Reliance is placed upon the following sentence in Dearborn v. Dearborn, 10 N.H. 473, 474, decided in 1839: 'It is perfectly clear, that depositions taken in perpetuam cannot ordinarily be used in pending suits.' However, other statements in the opinion indicate a less restrictive view of what is now RSA ch. 518, providing for depositions in perpetual remembrance. 'Our statute is silent as to the cases in which such depositions may be used; but we think they are clearly admissible in cases where the witness has deceased since the taking of the deposition, whether the action was pending at the time of the caption or not.' Page 474. Again at page 475 appears the following: 'The fact that the testimony [in perpetuam] might have been taken expressly for this case, in the common form, cannot preclude its use * * *.'

Whatever view is taken of the Dearborn case, supra, the statute was amended in Revised Statutes (1842) and has remained unchanged as it now appears in RSA ch. 518:9, which reads as follows: 'Use. Depositions in perpetual remembrance may be used in the trial of any cause wherein the matters concerning which they were taken are drawn in question; and in case they shall be lost or out of the possession and control of the party desiring to use them a copy of the record thereof may be used.' (Emphasis supplied.) The provision in the statute that a deposition in perpetual remembrance may be used in the trial of any cause indicates a legislative purpose to allow depositions in perpetual remembrance to be taken for use in pending as well as future cases if there is a likelihood that the testimony may not be subsequently available due to the age or physical condition of the prospective witness. Support for this construction of the statute was also indicated as early as 1888, when it was said in Justice & Sheriff, p. 193, that the word 'any' in what is now RSA 518:9 'seems to make the deposition public property to be used by anyone having an interest.' In Re Petition of Central Vermont Public Service Corp., 115 Vt. 204, 208, 55 A.2d 201, 203, it was held that a deposition in perpetual remembrance could not be used in a pending cause because its purpose was 'in reality to aid in the preparation of his pending cause.' In this state that would be an additional reason for the taking of such a deposition. Furthermore, we have never followed the Vermont rule which construes deposition statutes strictly. Dole v. Erskine, 37 N.H. 316, 329; Taylor v. Thomas, 77 N.H. 410, 92 A. 740; In re Peters Estate, 116 Vt. 32, 69 A.2d 281.

The right to take depositions under RSA ch. 517, the right to obtain discovery under RSA 498:1 and the right to take depositions in perpetual remembrance under RSA ch. 518 are not mutually exclusive so that the use of one necessarily precludes the use of another. Drake v. Bowles, 97 N.H. 471, 473, 92 A.2d 161. Thus it has been decided that a...