36 N.H. 501 | N.H. | 1858
"When a case is transferred to this court upon an agreed statement of facts, and the agreement contains no provision for a discharge of the case, or for further proceedings in the court below, the order from this court for judgment is ordinarily to be considered as absolute, and no proceedings are to be had in that court other than to render .judgment according to the order, unless leave is granted, in the order, to one of the parties to move in the court below for further proceedings. If, however, the agreed case contains a provision to the effect that, upon judgment being ordered upon the facts, as agreed, either party may have the right to controvert any of them by a trial before the jury, the order for judgment is to be considered as made subject to the condition for which the parties have stipulated. The order is absolute for judgment upon the statement of facts submitted ; but if, by the terms of the submission, either party is at liberty to show a different state of facts, the order is inoperative, provided either of the parties avails himself of the provision by moving for a trial for that purpose. Regularly, the trial can be had only by discharging the agreed case. It is consequently in order for the party who is dissatisfied with the judgment ordered, to move in the court below for the discharge, that the order may thereby become vacated, and he permitted to try the facts by the jury, in pursuance of the agreement. In this case it was expressly agreed that the case should be discharged and the cause stand for trial, if either party desired it. The case was, therefore, properly discharged by the court below, and when discharged the cause
The case having been properly discharged, it was competent for the court, upon motion of either party, to allow any amendment of the records of the town, consistent with established principles, regulating such amendments ; and the further questions presented are, whether the amendment moved is in its nature such that it can be admitted as an amendment, and, if so, whether it is warranted by the facts. Both these questions are referred to this court by the provisions of the case. It is not to be understood from the case that we are to consider the amendment as made ; that the records of the town have, in fact, been amended under the order of the court below allowing it. By the exception taken to the order, and the transfer of the question arising upon it to this court, the order is suspended until the grounds upon which it was made have been here revised and its propriety determined. The ruling of the court below, allowing the amendment and the exception taken to it, are precisely what would have been implied if the questions arising upon the defendants’ motion for leave to amend, and the evidence in support of it, had been transferred to this court without a distinct statement of the ruling and the exception. Claggett v. Simes, 31 N. H. (11 Foster) 60. If the motion, upon either of the grounds of objection taken by the plaintiff, is to be considered as one addressed to the discretion of the court below, the case is not one in which this court is now asked to revise the proceedings of that court in a matter entirely within their discretion, and in which that discretion has been exercised, but one where a pro forma ruling has been made, for the purpose of referring the question of discretion directly to this court. Such pro forma ruling is required by the provisions of the statute authorizing the transfer, and would be necessarily implied in the transfer, if it had not been expressly stated in the case.
We think the amendment is inadmissible upon either ground of objection.
The record in this case is of an assessment by a joint board, composed of the selectmen of the two towns, purporting on its