54 N.H. 419 | N.H. | 1874
The orignal suit between these parties was terminated by the judgment upon the verdict in favor of the defendants. “No proceeding by review can reverse or otherwise affect that judgment.” Badger v. Gilmore, 37 N. H. 459. It is true that the effect of that judgment may bo obviated and the judgment practically reversed upon another trial — Eastman v. Amoskeag Manf. Co., 47 N. H. 78 — and the rights of the parties are not finally concluded until a judgment shall have been obtained upon the proceeding in review — Haynes v. Ordway, 52 N. H. 284 — but the new proceeding does not vacate the original judgment, which may be enforced notwithstanding the subsequent review. Neither the original action nor the review was pending during the time after the judgment in the original proceeding and before the commencement of the present, but the original suit, having performed its office, vras functus officio. Badger v. Gilmore, before cited.
The contract and liability of the endorser wore, to pay the costs of the original suit only, in case the plaintiff might fail to pay them.
The original proceeding and the proceeding of review are distinct proceedings. There can be no costs recovered by cither party on review, except the costs accruing therein. Gen. Stats., ch. 215, sec. 13. The change in the law — first made in 18G7, by Gen. Stats., ch. 215, sec. 3, whereby the provisions of ch. 192, sec. 7, Rev. Stats., were enlarged so as to permit a party to file in the office of the clerk of the court, in which judgment against him has been rendered, a notice of review instead of resorting to a new writ — was intended, perhaps, to facilitate proceedings by a saving of costs, and by procuring a more speedy trial of the cause; but, so far from annulling or reversing the judgment in the original suit, the later statute expressly recognizes its existing validity and force, by providing, in section 9, that the review shall be tried as if no judgment had been rendered in the original proceeding, thus plainly indicating no purpose to vacate the judgment, but only to prescribo what the legislature deemed a better order and method of trial.
Original writs must be indorsed by an inhabitant of this state — Gen. Stats., ch. 203, sec. 8; but as a writ of review is not an original writ, so, as we have seen, a notice of review is not a revival of an original
This condition of the law permits no injustice, because, “ in all actions or petitions in the supreme court, costs may, on motion and good cause shown, be limited, allowed, and such security therefor ordered, as the court may deem just.” Gen. Stats., ch. 214, sec. 2, being a reenactment of Rev. Stats., ch. 191, sec. 7.
This proceeding by review on notice is an “action” brought forward for the purpose of a second trial, — the judgment in which is still unreversed, though it is thus placed in peril, not of technical but of practical reversal.
The statute concerning costs, above cited, is very broad, and is applied by our courts to all cases not expressly enumerated. Bartlett v. Hodgdon, 44 N. H. 472; Smith v. Boynton, ib. 529. Its purpose was, to confer a discretion as unlimited as the varying circumstances of cases not immediately recognizable.
In Gookin v. Upham, 22 N. H. 38, it was applied to the case of a suit brought in the name of an insolvent plaintiff, a resident of the state, for the benefit of his assignees, who were required, in the exercise of the court’s discretion, to furnish security for costs; and in Gale v. French, 16 N. H. 95, where, after verdict and judgment for the defendant, the plaintiff sued out his writ of review, the court (Woods, J.) remarked that the mere poverty or insolvency of the plaintiff did not of itself furnish sufficient ground for granting an order for security for costs, “ but, where a plaintiff is pursuing his claim under circumstances wearing an aspect of oppression or vexation, or where facts exist which raise a legal'presumption that his claim is unfounded, as where a verdict, judgment, or nonsuit has once been taken or entered in a suit involving the same questions, courts having the power have ordinarily interposed some restraints upon its prosecution, with a view to the protection of the defendant. * * The plaintiff has once failed in his action, and is unable to answer to the defendant the consequences of another failure, should he incur it. The court below acted clearly within their authority in ordering the security.”
Without finding it necessary, and, for my own part, being unprepared to indorse the suggestion that a “ legal presumption” of an “ unfounded claim” is raised by a verdict for the defendant in a suit which “may once be reviewed,” (“ Presumptions of law consist of those rules which, in certain cases, cither forbid or dispense with any ulterior inquiry”— 1 .Gr. Ev., sec. 14,) it is quite clear that the present case falls within the class of cases in which the discretion of the court may properly be exercised to require security for costs — a discretion which would probably be applied in circumstances like the present, where the plaintiff is not an inhabitant of the state, and where an indorser is not required by statute, for the reason that this proceeding is not commenced nor prosecuted by an original writ.
Case discharged.
