Opinion
Decided June, 1879.
The act of August 17, 1878 (c. 64, Laws of 1878), "relating to review and new trials," does not take away the right of review in actions pending when the statute went into effect, nor in actions in which judgment had been rendered and the limitation of time for review had not expired at the time of the passage of the act.
REVIEW. In the first action, in Rockingham, there was a verdict for the plaintiff at the April term, 1878, on which judgment was rendered at the April term, 1879, and thereupon the defendants moved to bring forward the action for review.
A. R. Hatch, for the defendants.
Marston and Frink, for the plaintiff.
In the second action, in Belknap, the plaintiff recovered judgment at the March term, 1878. The defendant sued out a writ of review August 28, 1878. The plaintiff moved to dismiss, on the ground that the action of review was abolished by c. 64, Laws of 1878. Motion granted, and the defendant excepted.
Whipple, for the defendant.
Hibbard, for the plaintiff.
In the third action, in Sullivan, the plaintiff recovered judgment at the September term, 1878. The action was brought forward by the defendants for review at the same term, and the plaintiff moved to dismiss.
Spring and Shirley, for the plaintiff.
Dole and Barton, for the defendants.
While the first and third actions were pending, and after trials and verdicts had been had, and after judgment had been rendered in the second action, that portion of Gen. St., c. 215, granting a review as matter of right, was repealed by the act of August 17, 1878 (c. 64, Laws of 1878); and the question presented is, whether the defendants have the right to review these actions. There is nothing in the language of the repealing act making it applicable to pending causes. Gen. St., c. 1, s. 34 (G. L., c. 1, s. 33), provides that "the repeal of any act shall in no case affect any act done, or any right accruing, accrued, acquired, or established, or any suit or proceeding had or commenced in any civil case, before the time when said repeal shall take effect." The question is settled in Dickinson v. Lovell, 36 N.H. 364. Upon the authority of that case, the act of August 17, 1878, does not take away the right of review in actions pending when the statute went into effect; and for the same reason we think it does not take away the right of review in actions in which judgment had been rendered and the limitation of time for review had not expired at the time of the passage of the act. Pickering v. Pickering, 19 N.H. 389; Woart v. Winnick, 3 N.H. 473; Colony v. Dublin, 32 N.H. 432; Railroad v. Cilley, 44 N.H. 578.
Motion in first action granted.
Exceptions in second action sustained.
Motion in third action denied.
DOE, C. J., doubted; FOSTER and BINGHAM, JJ., dissented; the others concurred.