Atwood v. York

Superior Court of New Hampshire

Atwood v. York

4 N.H. 50

DecidedFebruary 15, 1827

StatusPublished

This text of 4 N.H. 50 (Atwood v. York) is published on Counsel Stack Legal Research, covering Superior Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Atwood v. York, 4 N.H. 50 (N.H. Super. Ct. 1827).

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Opinion

Richardson, C. J.

When parties have a controversy of two hundred dollars value, or under, which they are desirous to settle by a reference, they may apply to a justice of the peace and enter into a rule for the purpose, and the justice is authorized to receive the report of the referees and to enter judgment accordingly. The rule is a written agreement signed by the parties and by them acknowledged before the justice. By the acknowledgment the agreement becomes a record before the justice and the proper foundation of a judgment rendered upon any report made in pursuance of the submission.

As the referees may mistake the law, in cases where they intend to be governed in their decision by it, or may [52]*52proceed to a hearing without having given to the parties due notice of the time and place, or be guilty of corruption or other misconduct, which would constitute a legal objection to their award, natural justice requires that the parties should have an opportunity to be heard in every case, before any judgment is rendered upon the report. A day is therefore to be fixed in the agreement to refer when the report shall be returned to the justice, and then by the agreement the parties have a day before the justice to be heard. 1 Mass. Rep. 411, Durell v. Merrill; 5 Mass. Rep. 139; 14 ditto, 148; 2 Pick. 625.

In the record now before us it does not appear that the agreement to refer was ever made a rule before the justice, or that he had any evidence that Atwood and wife assented to the submission other than the agreement which purported to be signed by them. It does not appear that the justice had any knowledge of the proceedings, until the report, and the agreement to refer, were brought to him, and that may have been done by York without the knowledge of Atwood and wife.

In Eastman v. Burleigh, 2 N. H. Rep. 484, we held, that a rule entered into before a justice by an agent was not a legal foundation for a judgment unless the authority of the agent to enter into the rule appeared. And we are of opinion that in this case there is no record of a rule that could support a judgment.

We also think that the judgment is erroneous in another respect. The parties had no day before the justice to be heard, nor does it appear that the party against whom the judgment was rendered, had any notice of the time when it. was rendered.

Judgment reversed.

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Richardson, C. J.

When parties have a controversy of two hundred dollars value, or under, which they are desirous to settle by a reference, they may apply to a justice of the peace and enter into a rule for the purpose, and the justice is authorized to receive the report of the referees and to enter judgment accordingly. The rule is a written agreement signed by the parties and by them acknowledged before the justice. By the acknowledgment the agreement becomes a record before the justice and the proper foundation of a judgment rendered upon any report made in pursuance of the submission.

As the referees may mistake the law, in cases where they intend to be governed in their decision by it, or may [52]*52proceed to a hearing without having given to the parties due notice of the time and place, or be guilty of corruption or other misconduct, which would constitute a legal objection to their award, natural justice requires that the parties should have an opportunity to be heard in every case, before any judgment is rendered upon the report. A day is therefore to be fixed in the agreement to refer when the report shall be returned to the justice, and then by the agreement the parties have a day before the justice to be heard. 1 Mass. Rep. 411, Durell v. Merrill; 5 Mass. Rep. 139; 14 ditto, 148; 2 Pick. 625.

In the record now before us it does not appear that the agreement to refer was ever made a rule before the justice, or that he had any evidence that Atwood and wife assented to the submission other than the agreement which purported to be signed by them. It does not appear that the justice had any knowledge of the proceedings, until the report, and the agreement to refer, were brought to him, and that may have been done by York without the knowledge of Atwood and wife.

In Eastman v. Burleigh, 2 N. H. Rep. 484, we held, that a rule entered into before a justice by an agent was not a legal foundation for a judgment unless the authority of the agent to enter into the rule appeared. And we are of opinion that in this case there is no record of a rule that could support a judgment.

We also think that the judgment is erroneous in another respect. The parties had no day before the justice to be heard, nor does it appear that the party against whom the judgment was rendered, had any notice of the time when it. was rendered.

Judgment reversed.

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