Coburn v. Rogers
32 N.H. 372
N.H.
1855
Check Treatment
Sawyer, J.

This is a petition for a review, or new trial, under the provisions of § 2, chap. 192, Revised Statutes. By § 1 of that chapter a review is granted, as a matter of right, “ in any civil action in the Court of Common Pleas in which an issue of fact has been joined and judgment rendered.” Section 2, of the same chapter, provides that “ the Superior (Supreme) Court may grant a review in any other case, when it shall appear that justice has not been done through any accident, mistake or misfortune, “ and that a further hearing would be just and equitable.”

The only question which arises in the case is as to the meaning of the words, “ in any other ease," as used in § 2. A doubt has been suggested whether it is not to be understood that by *374these words are intended, in any other actions than such as are specified in § 1; that is to say, in any other than those in which a review is secured to the party as a matter of right. Under our practice, judgments may he rendered upon the agreements of the parties or their attorneys in writing, filed in the ¿ase. Such agreements are to be considered as substantially the cognovit actionem, or confession of judgment, by warrant of attorney, in the English courts. Stephen on Pleading 108 ; Jacob’s Law Dictionary, Judgment III.; Oomyn’s Dig., Pleader, (Y. 2;) and if the agreement contain terms rendering it in effect conditional, the party against whom the judgment is rendered is to have the benefit of the condition for which he has stipulated, as in the case of confession of judgment by warrant of attorney in the English practice. Salk. 399 ; 7 Mod. 400. A stipulation inserted in the agreement for judgment that the action is “ open to review,” or that judgment be rendered “ subject to review,” or the like, has always been understood in our practice as securing the right to review the action within the time limited by statute for suing out the writ of review, as in other cases of right, whether an issue of fact has actually been joined in the action or not. This practice may perhaps be sustained, as conforming to the statute which grants a review as of right only in cases where an issue of fact has been joined, by regarding the agreement for the review as containing in itself an agreement that all has been done by the parties to the suit which the law requires to constitute it an action in which a review may be had of right, and estopping either party to deny, for the purpose of defeating the review, that such issue had been joined. Assuming, then, that this action is one in which a review may be had under the provisions of § 1 as of right, the question is, whether the authority of this court to grant a review on the ground of injustice done through accident, mistake or misfortune, under the provisions of § 2, is limited to actions other than those in which a review is given as matter of right; or, whether the expression, “ in any other case,” used in that section, is to be understood as meaning, in any other case of injustice happening through accident, mistake *375or misfortune than such as the party may have had opportunity to remedy by resorting to the right of review granted by § 1. The language used is certainly susceptible of the latter construction, if indeed this is not its most obvious and natural meaning; and it is a conclusive consideration in favor of this construction, that, upon any other, these provisions of the law are essentially defective, and fail, in the class of cases of which this is an instance, to effect the obvious intention of the legislature in their enactment, while upon this construction that intention is fully carried into effect.

That it was intended by these provisions to give to the party suffering injustice through accident, &c., in any judgment rendered, an opportunity by review to remedy the injustice in all cases, is quite apparent. In actions wherein an issue of fact has been joined, the remedy is provided by a review at any time within one year, as matter of right, and in all other cases by a review granted on application to this court. But in attempting to apply the remedy given by § 1, as a right, the party might fail, as in this case, by reason of precisely such accident, &c., as would entitle him to the remedy in the other mode in any other action than one in which such issue had been joined. To hold that the remedy in this other mode is to be thus limited, would be to hold that the party losing his review by accident, and to which he trusted for remedying injustice in the judgment, is to be left entirely remediless. Such an omission could not have been intended, for the case is as clearly within the mischief at which the statute is aimed, as if the judgment had been rendered upon default through mistake, without an issue of fact joined. To give to a statute of this remedial character a construction such as to exclude from its renqedy a class of cases manifestly within the mischief it was intended to cure, would be in violation of one of the most approved rules for the construction of statutes. It is the business of judges so to construe remedial statutes as to suppress the mischief and advance the remedy.

The review must he granted.