63 N.H. 111 | N.H. | 1884
The power to set aside, vacate, modify, or amend judgments for sufficient cause, is unquestioned. Adams v. Adams,
It is contended that the facts upon which the motion is based furnish no sufficient cause for granting it if proved by competent evidence. It is a fundamental principle of the law, that judgment ought not to go against a party without an opportunity to make defence; and judgments rendered without notice are voidable. Gay v. Smith,
There is no conclusive presumption that a copy or summons left at the defendant's place of abode came to his knowledge. Upon the question of actual notice, the return that a copy or summons was left is evidence, but not conclusive. The rights of the plaintiff are secured by permitting him to have judgment upon proof that the statutory notice has been given. If his cause of action is well founded, his judgment is in no danger of being reversed or vacated. If it is not well founded, the defendant should not be compelled to submit to it unless he has in some way forfeited his right to question its validity; and upon showing that he has a defence, and that he had no notice of the plaintiff's action, he ought ordinarily to be permitted to try his case. Judgments are rendered on default upon a return of service by leaving a copy or summons at the last and usual place of abode of the defendant, or by publication, upon the assumption that the defendant having notice of the suit has admitted the plaintiffs' claim by failing to appear and contest it. The record shows a legal service; but in every case where the defendant has no actual notice of the suit, the record, so far as it implies notice, is incorrect, and the judgment is rendered upon an erroneous assumption of fact. To hold the return of service conclusive evidence of notice would in all such cases deprive the defendant of any opportunity of defence.
If the defendant is entitled to relief, this is the appropriate form of remedy. It is comparatively speedy and inexpensive. There is no occasion or excuse for compelling a party to resort to another process, when, by bringing forward the original action, all errors may be corrected and justice administered. McIntire v. Carr,
The finding of the court must be set aside. The facts and conclusions stated in the reserved case in Moore v. Carpenter were not competent evidence. No judgment or decree had been rendered in that case. The verdict or findings of a tribunal upon which no judgment has been rendered are not competent evidence to control or influence the judgment of another tribunal upon the same question. King v. Chase,
Exceptions sustained.
SMITH, J., did not sit: the others concurred. *114