Wallace v. Stearns
| Decision Date | 05 December 1950 |
| Parties | WALLACE v. STEARNS et al. |
| Court | New Hampshire Supreme Court |
Warren, Wilson, Wiggin & Sundeen, Manchester, and Donald T. Gay, New London, for plaintiff.
Chretien & Craig, Manchester, Wm. H. Craig, Manchester, for defendants.
The defendants claim that the plaintiff is barred from maintaining the present petition because of the decree of dismissal of August 12, 1949. It is not disputed that both petitions brought by this plaintiff are based upon the same facts. However a new remedy was given the plaintiff by c. 266 of the Laws 1949. This statute added the following provision to the powers of the Superior Court in partition proceedings: 'The holder in possession of a fee simple interest in such real estate may have partition, irrespective of the class or duration of the estate of any petitionee named in the action'.
'Where the right to relief is denied because of the absence of any remedy the judgment does not bar a new action after a change in the law providing a remedy.' 2 Freeman on Judgments (5th ed.) 1506. It is stated in the decree of May 26, 1950 and in the present reserved case that the former petition was dismissed as a result of the decision of this court in Coleman v. Coleman, supra. The Presiding Justice was the same in the cases of both petitions. In other words, it was decided in the matter of the first petition that the court was without power to grant partition save in the case of 'persons holding with others estates of the same class.' Brierley v. Brierley, 81 N.H. 133, 137, 124 A. 311, 314, followed in the Coleman case.
The fact that the new remedy given by c. 266, of the Laws 1949 became available on June 22, 1949, whereas the first petition was not dismissed until August 12, 1949, does not deprive the plaintiff of the benefit of the new statute. A plaintiff's rights are ordinarily determined as of the commencement of his action unless the new right is brought to the attention of the court by supplemental pleadings or otherwise and is considered by it. 'So far as the plaintiff is concerned, no doubt he is not estopped from asserting any title acquired after the commencement of the action, because he must generally recover upon the cause of action held by him at that time, and cannot be aided by rights of action arising afterwards.' 2 Freeman on Judgments, (5th ed.) 1510. See also, Yager v. Yager, 7 Cal.2d 213, 60 P.2d 422, 106 A.L.R. 664. It appears that the provisions of c. 266 of the Laws 1949 first became available late in the pendency of the first petition and were not called to the notice of the court in connection with that petition and were not considered by it in dismissing said petition.
The court was not precluded accordingly from giving effect to said c. 266 of the Laws 1949 in deciding the case of the second petition. If valid, said statute authorizes partition under the circumstances of the plaintiff's case.
It is argued that the new statutory provision is unconstitutional because it is retrospective contrary to Art. 23d of the New Hampshire Bill of Rights. This article is as follows: It is true that the interests of the parties vested on the decease of their testator in 1943, some six years prior to the enactment of the new statute enlarging the powers of the superior court with respect to partition.
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...cannot be considered retrospective in the constitutional sense. See Alden v. Kimball, 104 N.H. 454, 189 A.2d 494; Wallace v. Stearns, 96 N.H. 367, 77 A.2d 109, 50 Am.Jur. 505, Statutes, s. 482. Since the notice given by the plaintiff on August 2, 1962 complied with the statute then in effec......
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