60 A. 98 | N.H. | 1905
An appeal is a continuation of the original suit, for the purpose of obtaining a new trial and a new judgment. It is analogous in its effect to the award of a new trial, by which the previous verdict is entirely set aside, and the case is to be heard anew like an original action and as if no judgment had been rendered in the court below. In highway appeals and generally, the appeal vacates the judgment in the court below, and the judgment in the appellate court is a distinct and original judgment. P. S., c. 68, s. 8; Morse v. Wheeler,
In his highway appeal the plaintiff alleges that the tribunal rendering the judgment from which he appealed was disqualified because of interest to act in the decision of the original petition. P.S., c. 45, s. 6. The defendants move to strike this allegation from the petition. They take the position in their brief that the plaintiff, if aggrieved by the illegal constitution of the original highway tribunal, has a sufficient remedy in a new trial before a new tribunal, to which he is entitled upon appeal, while the plaintiff advances the claim that the disqualification, if conceded or found to be true, is a sufficient objection against referring the petition to the county commissioners (P. S., c. 68, s. 5); that no new trial can be had, but the decision of the selectmen must be reversed without an investigation of the merits.
Upon these claims, the real question between the parties is whether the error alleged is fatal to the further maintenance of the original petition. This question would seem to be more properly raised by a motion by the plaintiff to quash or dismiss the proceedings, or by objection to a reference of the petition to the county commissioners. As the matter in dispute appears to be plain, it is not advisable to take time to consider whether it is technically presented by the motion and pro forma ruling in the superior court. The question is as to the jurisdiction of the appellate court to entertain the appeal and proceed to a trial upon the merits. *196
Where the objection goes to the jurisdiction of the original tribunal over the subject-matter, the judgment is void, and the appellate tribunal acquires no jurisdiction of the merits upon appeal. The proceedings may be quashed on motion or dismissed. State v. Gerry,
In a probate appeal, a disqualification of the tribunal appealed from is a sufficient ground for appeal — a reason why there should be a new trial; but such objection does not operate to quash the proceedings. In a highway appeal, the objection is immaterial as a ground why there should be a new trial, because the fact that the appellant (assuming that he has such interest as entitles him to appeal) considers himself aggrieved is sufficient ground to entitle him to a new trial upon appeal, without reference to the validity of the reasons which seem to him sufficient. P.S., c. 68, s. 2; Northern R. R. v. Enfield,
Case discharged.
All concurred. *198