Opinion
No. 5447.
Argued March 2, 1966.
Decided April 29, 1966.
1. While a plaintiff may become nonsuit us a matter of right before opening to the jury, leave to become nonsuit after a case is opened is within the discretion of the Trial Court.
2. Where there was objection to voluntary nonsuits in tax abatement appeals, and before hearing on the objection the plaintiffs proceeded to trial upon the appeals and presented testimony before the Tax Commission to which the appeals had been referred, the Superior Court could properly find that the plaintiffs waived their right to become nonsuit, and did not err in denying nonsuits in the Court's discretion.
Appeals pursuant to RSA 76:17 (supp) from taxes assessed against the plaintiffs for the years 1962 and 1963 filed on March 8, 1963, and September 4, 1963 respectively. Simultaneously the plaintiffs petitioned the Tax Commission for abatement of the same taxes. RSA 76:16-a (supp). When the appeals were filed there was pending in the Superior Court a petition for certiorari brought by the town, seeking to vacate and set aside an order of the Commission granting tax abatements to the plaintiffs for the year 1959. Questions of law presented by the latter petition were transferred to this court and determined in Hampton v. Marvin, 105 N.H. 34, handed down on July 9, 1963.
Following remand of Hampton v. Marvin, supra, to the Superior Court the plaintiffs herein moved on September 19, 1963 that the case be referred to the Tax Commission, which motion was denied on January 6, 1964. Thereafter a motion by the town that the proceedings for abatement for all three years be consolidated for hearing was granted by the Superior Court on April 24, 1964. At the same time the previous order of January 6, 1964, denying the motion to refer the proceeding relating to 1959 taxes was vacated. On May 7, 1964 the town moved that the three cases be referred to the Tax Commission, and this motion was granted on September 17, 1964.
On October 6, 1964 the Commission notified counsel that a view would be taken of the premises in question in Hampton on October 19, 1964, and that testimony would be taken commencing on November 3, 1964, at Concord. On October 19, 1964 the view was had, at which the parties were represented by counsel.
Under date of October 30, 1964, counsel for the plaintiffs wrote to the Clerk of the Superior Court requesting that the two appeals for the years 1962 and 1963 be marked "voluntary nonsuit." To this disposition the town duly objected.
On October 29, 1964 the parties were advised by the Commission that the taking of testimony would commence on November 4, 1964. At the hearing on November 4, 1964, the Commission was advised of the state of the record in the Superior Court with respect to the motion for voluntary nonsuits in the appeals involving the taxes for 1962 and 1963. The Commission proceeded to hear evidence relating to all three cases referred to it by the Superior Court. At the request of plaintiffs' counsel, the Commission ruled that the evidence would also be received for the purpose of deciding the plaintiffs' applications filed directly with the Commission with respect to taxes for 1962 and 1963. Thereafter, for reasons not relevant here, the hearings before the Commission were recessed, resumed in July 1965, and subsequently concluded.
Following hearing by the Superior Court on November 18, 1964, the plaintiffs' motion for nonsuits in the appeals relating to 1962 and 1963 taxes was denied by Morris, J. on November 27, 1964, subject to plaintiffs' exception. The questions presented were reserved and transferred by Grimes, J. in September 1965, on the "condition that the hearing before the Tax Commission would proceed" as though no transfer to this court had been made.
Shute Engel and Francis J. Frasier (Mr. Frasier orally), for the plaintiffs.
Upton, Sanders Upton (Mr. Robert W. Upton orally), for the defendant.
It has been settled in this jurisdiction since Judge of Probate v. Abbot, 13 N.H. 21, "that the plaintiff may become nonsuit as a matter of right before opening to the jury." Leonard v. Fahey, 87 N.H. 170, 171. See Barrett v. Cady, 78 N.H. 60, 63; Webster v. Bridgewater, 63 N.H. 296; Annot. 89 A.L.R. 13, 23. After a case is opened "leave to become nonsuit is within the discretion of the court." Ingalls v. Railroad, 83 N.H. 397. The Court in this case could properly find that by proceeding to trial upon the appeals in question and presenting testimony before the Tax Commission, the plaintiffs had waived their right to become nonsuit, and could not assert that justice required nonsuits to be permitted in the Court's discretion. Ingalls v. Railroad, supra, 398-399; Saykaly v. Manchester, 97 N.H. 4; Dorney v. Dorney, 98 N.H. 159, 160. See Maryland Casualty Co. v. Martin, 88 N.H. 346. They "could not at the same time invoke the judgment of the Court upon the merits . . . and deny its jurisdiction." Dolber v. Young, 81 N.H. 157, 159.
Exception overruled.
LAMPRON, J., did not sit; the others concurred.