Langdell v. Eastern Basket & Veneer Co., 99 A. 90

Langdell v. Eastern Basket & Veneer Co.

99 A. 90 | N.H. | 1916

The court had power to permit the entry of the writ after the return day, if failure to enter it in due season was due to accident or mistake, and it would be equitable to permit such *244 entry. Taylor v. Cobleigh, 16 N.H. 105; Chadbourne v. Sumner, 16 N.H. 129,133, 134. Actions entered in a court, which has no jurisdiction because the action is local, may at any stage of the proceedings be entered in the court in which they should have been brought. Bartlett v. Lee, 60 N.H. 168; Lord v. Walker, 61 N.H. 261; Hayes v. Rochester, 64 N.H. 41; Tucker v. Lake, 67 N.H. 193. A suit brought for one cause of action may be prosecuted for another. Sanborn v. Railroad, 76 N.H. 65. Procedure is what justice requires. Owen v. Weston, 63 N.H. 599, 603, 604. If justice requires that a plaintiff who has failed to enter his writ by accident or mistake, should be permitted to do so, the court has power to correct the mistake whenever it is discovered, and may as well permit the entry of the suit at a subsequent term as during the one at which it would have been entered but for the mistake. The order necessarily places the plaintiff in the position in which he would have been, if the mistake had not been made. If this were not so, the power to relieve from the mistake would be wanting. Gunnison v. Abbott, 73 N.H. 590, 594. Legal entry of the writ under leave of the court re-instates the attachment so far as it was lost by the failure seasonably to enter the writ. Whether the plaintiff may be estopped set up the attachment as against third parties depends upon whether it would be inequitable for him to do so. Gunnison v. Abbott, 73 N.H. 590, 594; Brown v. Ellsworth, 72 N.H. 186. If third parties in reliance upon the plaintiff's supposed abandonment his attachment have lost rights which they had and would have exercised but for such understanding, it would not be equitable to permit the plaintiff to profit by his mistake and he would be estopped as against them to set up the attachment. The attachment might be valid as against some parties and of no force against others. If in the present case the creditors could have avoided the plaintiff's attachment by bankruptcy proceedings, and if but for the plaintiff's mistaken abandonment of his suit such proceedings would have been instituted, the plaintiff would be estopped to set up his attachment title as against the receiver. But if on the other hand the creditors and receiver were in no way misled and would not in any event have proceeded in the bankruptcy court, there is no lack of equity in permitting the plaintiff to maintain his attachment title against the receiver and creditors. The court has found that the plaintiff should be restored to his attachment unless as matter of law upon the facts stated this cannot be done.

Upon the facts stated it could be found that such restoration *245 would be equitable as between all the parties to the proceeding and upon such finding the court had power to make the order. If justice requires a further hearing upon the determining question of fact, relief will be given in the superior court.

Case discharged.

All concurred.