Opinion
No. 7624
Decided March 31, 1977
Laches — Elements — Nature of Action An action by holder of note to recover balance due from maker and accommodation indorser is one which seeks legal, not equitable, relief and defense that plaintiff was guilty of laches and therefore barred from relief was not applicable; where only legal rights are in controversy no neglect in asserting a right, short of the time prescribed by a statute of limitations, will bar an appropriate legal remedy.
Robert Singer, of Manchester, by brief, for the plaintiff.
Robert H. Fryer, Londonderry, by brief, for defendant William C. Colgate.
MEMORANDUM OPINION
This is an action by the holder of a promissory note seeking to recover from the maker and accommodation indorser the unpaid balance of the note. The plaintiff as well as the defendant indorser filed motions for summary judgment together with supporting affidavits. After a hearing Troisi, J., RSA 502-A:5 (Supp. 1975), granted the plaintiff's motion. The defendant appealed. All questions of law were reserved and transferred.
The defendant indorser's only argument is that the plaintiff was guilty of laches and therefore should be barred from relief. However, the plaintiff seeks only legal, not equitable, relief. "Laches is a doctrine peculiarly applicable to suits in equity." 2 J. Pomeroy, A Treatise on Equity Jurisprudence 419a n. 7 (5th ed. S. Symons 1941). Thus, it has no applicability here. "[W]here only strictly legal rights are in controversy no neglect in asserting the right, short of the time prescribed by the statute of limitations, will bar the appropriate legal remedy." Aronovitch v. Levy, 238 Minn. 237, 242, 56 N.W.2d 570, 574 (1953), quoted in E. Re, Equity and Equitable Remedies, Cases and Materials 1139 (1975); see Note, Laches in Federal Substantive Law: Relation to Statutes of Limitations, 56 B.U.L. Rev. 970, 970 974-75 (1976).
Defendant's exception overruled.