20 N.H. 53 | Superior Court of New Hampshire | 1849
It appears that Goss, the defendant, was owner of a quantity of boards, and that the petitioner converted them to his own use by selling them; that Goss, to recover the value of the boards, brought an action of trover against the petitioner, to which he filed a plea, as described in the petition; that the justice of the peace refused to receive the same, and directed a default, but whether it was known to the petitioner that such default was entered at a time sufficiently early to have enabled him to appeal, the evidence is not quite uniform or satisfactory.
It seems probable that the justice of the peace erred in refusing to receive the plea tendered by the petitioner at the return day of the process; but the plea itself not being-before us, and its precise terms not having been made known, it is not a point upon which we can judge with certainty; but for the purposes of this case it may be conceded to the petitioner.
The general jurisdiction of this court, embracing “the superintendence of all courts of inferior jurisdiction for the prevention and correction of errors and abuses, where the laws have not expressly provided a remedy,” may be
Its aid has been sought by petition, and administered, in the following cases.
In Blodgett v. Brewer, Grafton county, 1846, the petitioner had applied to the United States District Court for discharge under the bankrupt act of 1842, and was opposed by the defendant in the cause; who had also commenced an action in the Court of Common Pleas against the petitioner. The proceedings in the District Court had been continued, upon an agreement of the parties that the action in the Court of Common Pleas should also be continued, so as to enable the petitioner to plead his discharge in bar, if he should obtain one. The defendant, Brewer, in violation of the agreement, as proved, caused the action in the Court of Common Pleas to be defaulted. This Court, upon petition, set aside the judgment in the Court of Common Pleas.
Upon that occasion, the case of Sawyer v. Chadwick was cited, which was a petition to set aside a judgment of the Court of Common Pleas. Chadwick had brought an action against Sawyer in that court, pending which the subject matter of the suit was arbitrated and settled. But Chadwick, notwithstanding the arbitration, in the absence of Sawyer went to court and caused judgment to be entered. The judgment was, upon the petition, set aside. That case, also, arose in the county of Grafton.
But it is a well founded and perfectly established maxim, that the extraordinary summary powers of the court will not be exerted to rectify a mere error of form, where the substantial ends of justice do not require such action.
The plea that was erroneously rejected was a mere dilatory plea. If true in point of fact, it would have availed the party filing it no more than the exaction of trifling terms from his antagonist, for leave to amend his writ.
This hearing the court would, nevertheless, restore to him, if any evidence were adduced that should render it probable, that in losing the opportunity of being heard he lost, also, that of mating a substantial and effective defence.
But the contrary of that has been made to appear from the evidence exhibited by the defendant here, without any contradiction from that produced by the complainant.
There is no ground upon which we can raise a reasonable doubt, from the testimony, that the defence of the complainant in the action before the justice would have failed. The justice of the claim in that action is but feebly denied by the complainant himself, and is sustained in detail by the testimony of the witnesses.
The ease is not one, therefore, in which the court ought to exert its summaiy and transcendant powers, or in which it has ever been accustomed to do so. Nor is this a case in which the court, under the general prayer for relief with which the petition concludes, can, consistently with the general rules of practice, or with the equity and justice of the case, grant the petitioner leave to review.
This must be denied upon the same ground that has been indicated; that is to say, that the petitioner has not made out a case for relief. He has not shown that substantial justice requires a new trial, or that any real injustice has been done by the magistrate, by refusing to receive his dilatory plea.
The petition must, therefore, he dismissed.
