Rochester v. Roberts

29 N.H. 360 | Superior Court of New Hampshire | 1854

Eastman, J.

This case, which has been before the court, at different times, upon various questions, is finally submitted to our determination upon an agreed statement; and upon this statement and the papers referred to and accompanying the same, two questions arise ; First, could judgment be rendered in the common pleas upon the original writ, or upon any one count in the same for $12, the sum for which it was rendered and costs; and second, judgment being taken for that sum in debt, could full costs be taxed Í

An examination of the declaration shows that it was founded on chapter 62 of the Revised Statutes, in relation to guide posts. It contains fifteen counts, each one being for a separate and distinct delinquency at an intersection of a highway different from that set up in the other counts; and in each count the claim of $12 is made for the neglect set forth in the same, the count, closing, in substance, as follows : Whereby an action hath accrued to the plaintiff to have and recover of the said town of Rochester the sum of $1 for each month’s neglect as aforesaid, and amounting in the whole to $12.

The declaration closes in the usual form, that “ yet, though often requested, the said defendants have not paid all or either of said sums, but neglect it. To the damage of the plaintiff, as he says, the sum of $500.”

The sixth cause of demurrer, referred to in the agreement of the parties was, “ that .the defendants forfeited but $1 each month for all of said supposed neglectsand upon the question going to the superior court, it was held, as we understand the decision to have been, that $12 was- the extent that could be recovered in any one action; that such "vyas the construction to be put upon the statute. The statute has since been repealed, and another passed as a substitute.

The section of the statute, as then in force, is as follows; “ If any town shall neglect to erect or keep in repair such guide post or guide board at each intersection of the highways therein, they shall forfeit for each month’s neglect the sum of one dollar, to be recovered by any person who will sue for the same for his own use.” Rev. Stat. ch. 62, § 2.

Upon this section it would seem clear that an action could be maintained against a town for a failure to keep in repair a guide post or board at one intersection only; and that had the plaintiff, in the court below, brought his suit for a failure at one intersection, and had inserted in his writ but one count for a twelve months’ delinquency at that intersection, he would have recovered the $12, that is, if the court of common pleas had jurisdiction of the case.

It is contended, in argument, that inasmuch as $12 is the extent of the amount that could be recovered on this statute, in any one suit, the common pleas had no jurisdiction of this case, the jurisdiction of the justice of the peace extending to $13,33.

Under the construction which has been given to this statute, to which we have alluded, and the general provisions that all suits and prosecutions founded upon any penal statute, which are wholly or in part for the use of the prosecutor, shall be brought within one year, (Rev. Stat. ch. 211, § 9,) there can be no doubt that $12 is the most that. could be recovered. But we have never held that because a justice of the peace may entertain jurisdiction to the extent of $13,-33, the common pleas are thereby ousted of jurisdiction of all matters below that sum. Unless the statute confines the original jurisdiction of the subject-matters to a magistrate, our practice has been to permit a party to bring his suit in the common pleas, if he so chose, but at the risk of having his costs limited to those recoverable before a justice of the peace.

And we think the defendant in error might well enough have brought his action in the common pleas, as he did, and that that court could entertain jurisdiction of the cause. There is nothing in the statute prohibiting the common pleas from taking jurisdiction of actions of this kind. The provision that all penalties and forfeitures, not exceeding $13,33, may be recovered before a magistrate, (Rev. Stat. ch. 211, § 1,) does not necessarily confine parties to the bringing of such actions before a justice of the peace.

There is, therefore, no difficulty in the case upon the question of jurisdiction, and even if there were, it might be questionable whether it could be taken advantage of at this stage of the proceedings. As a general rule, objections to the jurisdiction of a court of record must be taken advantage of by plea in abatement. But it is unnecessary to examine further this question, as we entertain no doubt that the common pleas could take jurisdiction of such an action.

Being, then, of opinion that an action of this kind could be brought in the common pleas for one neglect only, on the part of the town to keep up a guide board, as stated in the statute, we think the plaintiff, in the court below, might recover on one count of his declaration, “waiving,” as is expressed in the agreed statement, “ further prosecution on the other counts.” If fourteen of the counts were stricken out, or the plaintiff discontinued on fourteen of them, as we understand he might, according to the terms of the agreement, the declaration would then contain one good count,. such as would be drawn for one neglect, upon which judgment could be rendered for $12 debt. If there had been an allegation of claim for a default accruing upon all the counts, which would have been $180, there might be a difficulty in the plaintiff’s obtaining judgment on one count, but the declaration contains no such allegation; as it is drawn a discontinuance on fourteen of the counts, leaves the declaration a perfect one on one count, and the plaintiff “ waiving prosecution on the other counts,” could take judgment for one penalty.

But upon judgment being taken for $12 debt, could full common pleas costs be taxed ? This is the second question presented by the case.

Upon an -examination of the papers accompanying the agreed statement, it appears that costs to the amount of $59,96 were taxed upon the rendition of judgment in the court below. No exception is taken that they were not properly taxed as common pleas costs, but the objection is that the costs should have been limited to those recoverable before a justice of the peace.

The statute in regard to costs, which is applicable to this question, is quite familiar, but still we quote it. It is as follows: “ In all actions commenced in the court of common pleas, if it appears that the plaintiff had no reasonable expectation of recovering more than $13,33, the court may limit the costs to such sum as they think reasonable.” Under this section it is discretionary in the common pleas to limit the costs or not, as they shall deem proper and right, according to the circumstances of the case ; and the practice no doubt is, that where it is shown that the plaintiff had no reasonable expectation of recovering more than $13,33, the costs will be limited. But this should be made clearly to appear. Church v. Clarke, 6 Foster’s Rep. 366.

Matters within the discretion of an inferior court are not subject to revision by the court above, unless expressly transferred for that purpose. Such is our well established practice, and we have had occasion so to state it at the present term. Janvrin v. Scammon, 9 Foster’s Rep. 280. And a writ of error will not lie to correct a decision made upon a question addressed to the discretion of the court, and by them decided.

The court below might have limited these costs had they seen fit. But it was within their discretion to do it or not; and having declined to limit them, and ordered full costs to be taxed, we cannot, upon a writ of error, reverse that de» cisión.

Our opinion being against the plaintiffs in error, upon the questions raised by the agreed statement of the parties, there must of course be

Judgment for the defendant in error.