45 N.H. 403 | N.H. | 1864
The facts disclosed in this case tend to show that Hill, as original plaintiff, recovered his judgment, as upon default, against the present plaintiff as original defendant. Smith, as such defendant, now seeks to reverse the former judgment, and accordingly brings his writ of review. The said Hill residing out of the State, the writ of review appears to have been served upon his attorney of record in the original action. This is a mode of service properly made, being in strict compliance with our statute on that subject. Chapter 194, sec. 9, Comp. Laws.
The writ of review was also served on one Enoch Cass, whose name does not appear upon the original record, as either a real or nominal party. Hence the plaintiff in review, after sueing out his writ, was in no way obliged to seek out Cass for service upon him, as he had no legal notice that he had an interest in the action. It was enough for the plaintiff that he was enabled to make due service of the process upon the original attorney in the action, and when the plaintiff had executed this duty he had discharged all that the law required of him; and he is not now to be prejudiced by an extra-judicial service of the writ upon Cass. Cass was a stranger to the original record, and his name could not be connected with the record, except by leave of the court; no leave has been granted in any way to substitute, or insert the name of Cass, therefore, a service upon him may be regarded as a mere nullity. Hence, the motion to dismiss the action because, Cass being dead, his legal representative is not called in, must be regarded as out of order, and as properly denied.
An action on review is presumed to be between the same parties that were originally of record, and to be tried upon the original pleadings and issues in the case, unless for good cause they may have been varied by leave of court. Chap. 192, R. S. And the original plaintiff of record, who recovered his judgment, whether he be in fact the real or nominal party in interest, is treated as the responsible party, and upon the reversal of the judgment is bound to make due restitution to the injured and prevailing party. Little v. Bunce, 7 N. H. 490.
Again the motion to dismiss an action is generally maintained for some legal defect apparent upon the face of the record, and, under our practice, should be made at the first term, and not after the attorney has entered his general appearance in the action, and an imparlance or general continuance has been once had. Sometimes this motion is entertained after a continuance of the action, but not often, unless a right to make it has been reserved under some special entry of notice upon the court’s docket. The motion is treated as dilatory in its character, and is not favored when its tendency is to avoid an enquiry into the true merits of the controversy, or to operate as a bounty to negligence in pleading. Foster v. Hadduck, 6 N. H. 217. We think the court exercised a proper discretion in denying the motion of the defendant in review, and that there should be
Judgment on the verdict.