25 N.H. 124 | Superior Court of New Hampshire | 1852
The objections to the acceptance of this report come from the town, the report being adverse to the discontinuance of the road. Upon the petition to discontinue the road, Blaisdell, one of the commissioners, being a resident of the town, Berry was appointed as a substitute, agreeably to the provisions of the statute. After this appointment, the commission to the board was delivered by one of the selectmen of the town to Stevens, one of the road commissioners, and the notices were issued by him for a hearing on a specified day. The case does not find the fact, but it would not perhaps be presuming too much to suppose that both the time and place were fixed upon by consultation with the selectmen.
At the time appointed for the hearing, the town and all others interested met the board, and before any proceedings were had upon the hearing, Berry was duly sworn to the faithful discharge of his duties, and the hearing proceeded without exception from any quarter.
The oath to Berry was no doubt administered in the presence of all, after they had assembled to proceed with the hearing. Such, we think, is the only legitimate inference from the facts stated. And the town now objects to the acceptance of the report, on the ground that Stevens hád no authority to act as chairman and issue the notices, and
But these objections cannot prevail. The issuing of the notices by Stevens was cured by the appearance. When parties entitled to a notice of the time and place of the meeting of the road commissioners, appear before them and make no objection, at the time, to the notices or their service, such appearance, without objection, is a waiver of all right to notice at all, and consequently of all right to object to the form of the notices or their sufficiency. Parish v. Gilmanton, 11 N. H. Rep. 293.
This principle carried out, is also an answer to the exception that Berry was not sworn before the notices were issued. The fixing of a time and place for the hearing is undoubtedly a matter of consequence in the proceedings. So also is the fact that the parties be duly notified. But if the parties interested appear, and especially the petitioners, as in this case, and, with a full knowledge of the fact that one of the commissioners has not been sworn before the issuing of the notices, proceed with the hearing, and take no exception whatever to the issuing of the notices or the fixing of a time and place, till after an adverse report is made, they must be held to have waived their right to except on that account.
The motion to reject the report must be overruled and the
Report accepted.
