123 A. 218 | N.H. | 1923
The plaintiff predicates her claim to jurisdiction on (1) personal service within the state, (2) written acceptance of service by defendant's attorney, (3) special appearance by counsel which had become general.
(1) Non-resident parties and witnesses are privileged from service of process while in attendance upon, going to, or returning from the trial of a cause. Process dependent upon service so made is subject to abatement. Ela v. Ela,
(2) The court has found that the defendant's attorney was not authorized to accept service.
(3) It follows, therefore, that this action is subject to abatement unless there has been a general appearance. A restricted appearance *159
for the purpose of objecting to jurisdiction merely will not confer jurisdiction. Wright v. Boynton,
The defendant predicates his claim of error in the denial of the prayer of his plea in abatement upon authority of Gamsby v. Ray,
The present suit is brought to recover rent. Upon defendant's motion in the first suit, the count for rent had been disposed of by a directed verdict in his favor for the reason that the suit as respects that count had been prematurely brought. Plaintiff's exception thereto, subsequently withdrawn, then remained the only impediment to an entry of judgment for the defendant which, otherwise, would follow as a matter of course upon judgment day. It is apparent, therefore, that it could be found that the present suit, brought after the withdrawal of plaintiff's exception, did not subject the defendant to a multiplicity of suits, and that, therefore, it was not vexatious or oppressive. It cannot be said as a matter of law that justice required a dismissal of the suit.
Defendant's exception to the court's finding that the waiver of plaintiff's exception in the first suit preceded the bringing of the second, raises no question of law. The superior court takes judicial notice of any action taken in court by counsel in cases there pending, and may rely upon the statements of counsel in respect thereto.
Exceptions overruled.
All concurred.