Rice v. Holden

55 N.H. 398 | N.H. | 1875

Lead Opinion

There is no question before the court as to the effect of the pendency of the bill in equity upon the suit at law, nor of the pendency of the suit upon the bill. The simple question is, whether the name of a case omitted from the printed docket of the court by mistake shall be restored. I think the motion should be allowed.

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Concurrence Opinion

It is quite within the ordinary practice of the court to bring forward actions which have been omitted from the docket. No better reason for so doing could well be assigned than that the action had been omitted by mistake. I think the motion should be allowed.

SMITH, J. An action will be brought forward upon the docket, as a matter of course, when either party desires to be heard on any motion in respect to it. The order to bring forward decides nothing, except that the court is ready to hear the party. Russell v. Dyer, 39 N.H. 528. Whether, when this case is brought forward, the court bill compel the plaintiff to elect whether to proceed with his suit at law or in equity before hearing the parties, or at a later stage in the proceedings, or whether this is a case where the plaintiff should be compelled to make such election, are questions not now before the court.

Motion granted.