State Ex Rel. Hyde v. Lynch

55 A. 553 | N.H. | 1903

The substantive fact upon which the proceeding depends is the existence of the alleged illegal use at the commencement of the proceedings. State v. Strickford, 70 N.H. 297; State v. Saunders, 66 N.H. 39, 90. Such use is the cause of action. Whether the injunction against such use is asked in the name of the state by a petition at the instance of an officer of the town, or by an information by the law officer of the county or state, the state is the real plaintiff. State v. Wilkins, 67 N.H. 164, 165. The issue and the judgment are the same in each case. Laws 1899, c. 81, s. 1. Whether the petitioner can withdraw against the objection of the state's counsel, and whether such withdrawal abates the proceeding, are immaterial questions. If necessary to maintain the proceeding, and required for the promotion of justice, the substitution of the solicitor for the withdrawing complainant and the denomination of the proceeding as an information by amendment render these questions immaterial. The suggested amendments introduce no new cause of action, and are within the statute authorizing amendments in civil cases. P.S., c. 222, ss. 7, 8, 11; State v. Batcheller,66 N.H. 145; State v. Wilkins, 67 N.H. 164; State v. Collins, 68 N.H. 46. If permitted, the amendments relate to the commencement of the proceeding. State v. Collins, supra; Whittier v. Varney, 10 N.H. 291,303. Whether such amendments should be allowed is a question of fact. The superior court having ruled, in substance, that such substitution should be made, such order presents no question of law.

Case discharged.

All concurred.