Opinion
No. 4102.
Decided June 3, 1952.
In an action on promissory notes, there was no abuse of discretion in the denial of plaintiff's motion to reopen, filed over a year after judgment had been obtained by him and satisfied, for the alleged reason of error in the specifications, where the notes were available and copies thereof were not filed in accordance with the rules of court. However, the summary dismissal of plaintiff's motion for a new trial without a hearing and an opportunity to present affidavits and other evidence in support of the motion was error.
ASSUMPSIT, based on certain promissory notes, begun by a writ containing specifications dated April 15, 1948, in which the plaintiff recovered judgment by default and took out execution on May 4, 1949, in accordance with an amended specification filed April 27, 1949. This execution being returned unsatisfied, an alias execution was issued on November 29, 1949. It was returned on February 1, 1950, with the notation "Payment in full received. William H. Sleeper, attorney for plaintiff."
On March 7, 1951, motions were filed by the plaintiff to reopen the case because the specifications were not properly drawn since they included "only interest charges upon the original notes," leaving approximately $1,200 still due on the principal, and for a new trial upon the grounds of "accident, mistake or misfortune." After a hearing the motion to reopen was denied and the "request" for a hearing on the motion for a new trial was also denied, but without a hearing. To these denials the plaintiff excepted.
The notes, three in number totaling $2,300, were made at various times during the year 1930 and it is claimed that payments were made throughout succeeding years aggregating some $3,300 including interest. Further facts appear in the opinion. Transferred by Wescott, J.
William H. Sleeper and Wayne J. Mullavey (Mr. Mullavey orally), for the plaintiff.
Robert J. Wakefield for the defendant.
The record shows there was no abuse of discretion in the denial of the motion to reopen the case. It appears that while execution on the judgment obtained by the plaintiff was satisfied January 28, 1950, and receipted for by her counsel as paid in full on February 1, 1950, the motions to reopen and for a new trial were not filed until over a year later on March 7, 1951. Plaintiff's counsel does not deny that the notes were available even prior to bringing the writ, or that an examination of them at any time would have disclosed the error in the specifications. This in itself is sufficient reason for the denial of this motion. Perley v. Roberts, 91 N.H. 254. However, in addition to this the plaintiff failed to file copies of the notes upon which she sought judgment with the clerk of court, before taking out execution. Not only has our long established practice been to file such copies prior to taking out execution (Hackett v. Pickering, 5 N.H. 19, 25), but rule 43 of the Superior Court rules provides that this be done. It follows that the exception to the denial of this motion must be overruled.
However, the record also discloses that the plaintiff has never had a hearing on her motion for a new trial. Her counsel stated at the beginning of the hearing on the motion to reopen: "As I understand, this motion, this matter today is limited to whether hearing will be granted on our motion to reopen." No objection was offered to this procedure by Court or counsel and the Court in the reserved case, while stating specifically that a hearing was held on the motion to reopen, merely says that "the request for hearing on the motion for new trial was also denied." Furthermore, on the motion to reopen, the order is signed by the Presiding Justice, but on the motion for a new trial no order was made. The plaintiff has indicated in oral argument that she desires to present certain affidavits and other evidence in support of this motion not produced at the hearing. She should have an opportunity to do so and it follows the order is
Exceptions sustained in part and overruled in part.
All concurred.