Farmington v. Copp and Johnson
Supreme Court of New Hampshire
From Strafford Circuit Court. These two actions were referred to an auditor. In the first the report had been made, and the plaintiff elected a trial by jury. In the second the report had been made, and returned to court, and recommitted to the auditor, who had not yet returned his report.
Read the full summary
From Strafford Circuit Court. These two actions were referred to an auditor. In the first the report had been made, and the plaintiff elected a trial by jury. In the second the report had been made, and returned to court, and recommitted to the auditor, who had not yet returned his report. And now, at this time, the plaintiffs moved for leave to become nonsuit in both actions as a matter of right, to which the defendants objected; but the court, Stanley, J., granted the motion, and the defendants excepted. The questions thereupon arising were transferred to this court for determination.
1Opinion of the Court
FROM STRAFFORD CIRCUIT COURT. The question in the first of these cases is identical with that decided in Fulford v. Converse, 54 N.H. 543, and the rule there laid down applies.
In the second, I think the plaintiffs are not now in a position to discontinue their suit in this way. The matter is still pending before the auditor. If the plaintiffs should omit to appear before the auditor, it would be his duty to report that fact to the court, and, in case there had been no report previously made, the judgment would be "as upon nonsuit." Gen. Stats., ch. 212, secs. 5, 6. Whether the fact that there…
2Cases cited1 opinion
- Fulford v. ConverseSupreme Court of New Hampshire · 1871
3Cited by1 opinion
- Parker v. BurnsSupreme Court of New Hampshire · 1876