Smith v. Knowlton

11 N.H. 191 | Superior Court of New Hampshire | 1840

Parker, C. J.

We are not aware of any rule or principle on which we can presume that Josiah D. Smith was dead in September, 1831, when the judgment was rendered against him. in the action in which the defendant was charged as his trustee.

The presumption is that a party continues to live, until some evidence is offered to rebut it. 2 East’s R. 313, Wilson vs. Hodges. But evidence that he has not been heard of for the term of seven years, rebuts this presumption of the duration of life. 6 East’s R. 85, Doe vs. Jesson; 2 Bay’s R. 479, 480, Woods vs. Admrs. of Woods; 2 Camp. R. 113, Hopewell vs. DePinna; 4 Barn. & Ald. 433, Doe vs. Deakin.

In such case the death is not generally presumed to have occurred until the expiration of the time. The presumption of death does not relate back to the time when the party was last heard of, or to any intermediate time. 10 Pick. R. 515, Newman vs. Jenkins.

Where there are conflicting presumptions, it has been held that the presumption of the continuance of life will yield to the presumption of innocence ; as, where a woman married again within a little more than twelve months after her husband went abroad. The King vs. The Inhabitants of Twyning, 2 Barn. & Ald. 386.

The period of seven years it is said has been fixed from analogy to the statute of bigamy, and the statute concerning leases determinable on lives. 1 Phil. Ev. 197; 2 Stark.Ev. 458.

Our statute authorizing this court to decree a divorce where the husband or wife has been absent for the term of three years without having been heard of, will hardly warrant us m adopting that as a period at the expiration of which the presumption of life is rebutted here; for although one reason for the passage of the act probably was the possibility that the party might be dead at the expiration of that time, it does not seem to be predicated entirely on such a presumption. If, however, we could make that presumption, it would not avail in this case, as a letter had been received from Smith within three years next previous to the rendition of the judgment. And we are not aware of any authority upon which the dangers of a sealing voyage will authorize the court to draw such a conclusion, at the expiration of two years, respecting a party who has embarked on such a voyage.

The jury may find, as a matter of fact, that a party died within a much less period after he was last heard from, on circumstantial evidence which leads their minds to such a conclusion. 1 W. Black. Rep. 404, Rowe vs. Hasland; 1 Stark. N. P. R. 121, Watson vs. King; 18 Johns. R. 143, King vs. Paddock.

To the second objection to the judgment, that the sum demanded in damages was not sufficient to give jurisdiction to the court rendering it, and that the proceedings are therefore void, no sufficient answer seems to be given.

The statute of December 21, 1824, to establish a court of common pleas, enacted, among other things, that the court of common pleas should have original jurisdiction in all civil actions arising within the several counties ; with a proviso, that the superior court should have original jurisdiction, concurrent with the common pleas, of all real actions, and of all personal actions wherein the sum demanded in damages should exceed one hundred dollars; and then made a further provision, that in all personal actions commenced in that court, if the plaintiff should not recover the sum of one hundred dollars, he should not recover any costs, but the defendant should recover costs, and have a separate judgment therefor. That this act made the original jurisdiction of this court, in personal actions, depend upon the ad damnum in the writ, is very clear. 2 N. H. Rep. 322, Hoyt vs. Molony. The further provision respecting the costs, was intended to regulate the matter, and prevent the demand of a greater sum in damages than one hundred dollars, when the party had no expectation of recovering more than that sum.

The act of January 2, 1829, to declare the jurisdiction of the court of common pleas and of the superior court of judicature, passed upon a partial revision of the laws, contained a similar clause respecting the jurisdiction of this court in personal actions, omitting the clause respecting the costs; and gave the common pleas final jurisdiction in cases where the damages demanded did not exceed fifty dollars. This act was in force when the action was instituted in which the defendant was summoned as trustee, and when the judgment was rendered. The sum demanded in damages not exceeding one hundred dollars, the action was of course not regularly brought in this court. Had the attention of the court been called to the fact, by a motion, it must have been dismissed for want of jurisdiction. 2 N. H. Rep. 322; 2 Dall. R. 368; 1 Binn. R. 138.

The court having no jurisdiction of the cause, the whole proceedings are void, and the judgment cannot protect the defendant from this action.

Where a court has jurisdiction of the cause and the parties, and proceeds erroneously, the judgment, notwithstanding the error, is binding until it is vacated or reversed. This distinction is well settled. 3 N. H. Rep. 269, Gorrill vs. Whittier; 10 Co. 76, The Case of the Marshalsea; 1 Peters' S. C. R. 340, Elliot vs. Piersol; 12 Johns. R. 256, 267, Smith vs. Shaw; 19 Johns. R. 33, Mills vs. Martin; 9 Cowen’s R. 227, Latham vs. Edgerton; 8 D. & E. 424, Brown vs. Crompton; 3 Binn. R. 410, Hecker vs. Jarratt; 17 Johns. R. 290, Prescott vs. Hull; 4 Johns. Ch. R. 468; 20 Johns. R. 268, Holmes vs. Remsen; 1 Pick. R. 440, and cases cited.

The objections to the service and notice, in this view of the matter, become immaterial.

The exception taken by the defendant to the maintenance of this action, on account of the infancy of Smith, the intestate, must be overruled. There is sufficient evidence tending to show that he was emancipated, and nothing to rebut it. He is shown to have been in partnership with another person, doing business for himself, prior to the time when he embarked on the voyage out of which this demand arose, and the defendant acknowledged that part of the proceeds belonged to him. So far from there being any evidence to control this, the case does not even find that he had either a father or mother living.

Judgment for the plaintiff.