Gallup v. Mulvah

26 N.H. 132

• Court: Superior Court of New Hampshire
• Decided: December 15, 1852
• Status: Published

Opinion

Eastman; J.

The amount in controversy between these parties is very small, but it is not unfrequently the case that the severest litigation originates in the smallest sums, especially where the matter in dispute grows out of special statute enactments relative to the business of towns and town officers.

This action is one of that class, this being the third time that it has come up to this court, and none of the exceptions' now presented have appeared heretofore.

The action is founded upon section 14 of chapter 136 of the Eevised Statutes. By that section it is provided that each “ fence viewer-shall be allowed one dollar per day for his services, to be paid by the party making the-application, and he shall be entitled to demand and recover the one half thereof of the other party, in an action of assumpsit for money paid for his use, unless in the opinion of the fence viewers, justice requires a different division of the costs, in which case they may so order.”

Several exceptions were taken upon the trial, to the plaintiff’s right of recovery, which we will notice in their order.

The first is that there was no competent board to divide the fence on the day it was done. It appears that the notice for the hearing was given on the 15th day of July, at which time only two of the fence viewers had taken the oath of office. The hearing took place on thé 22d of July, when the official oath was administered to the other. Both parties appeared and were heard, and no exception was taken to the official character of any member of the board. If the defendant had wished or intended to except to the want of qualification in either of'them, he should have made it known at that time, and not making it known, he must be regarded as having waived the exception.

The principle involved in this question was settled at the last term of this court, in the case of the petition of Gilford, for the discontinuance of a highway. We held in that case that, where one of the road commissioners did not take the official oath till after the notices of the hearing were issued, but did take it before the hearing, and the parties appeared and proceeded with the hearing without objection, with a knowledge of the fact, the exception could not be taken afterwards, and was waived. The same principle was also recognised at this present term of the court, in the case of Goodwin & als., petitioners for a highway in Milton.

The insertion in the report that the portion of fence assigned to each party should be built by him, “ and kept in repair by him, his heirs and assigns forever,” is at best but mere surplusage. The second section of the chapter of the statute upon this subject, provides that “ any division of fence made by the parties in writing and recorded in the town records, shall be forever binding upon the parties, and all succeeding owners and occupants of the land.” And the third section provides <( that if the parties shall not agree upon a division, the fence viewers of the town, upon application, shall make such division, which, being recorded in the town records, shall be of the same force as a division made by the parties, and a copy of such record shall be evidence.” Rev. Stat. ch. 136, §§ 2, 3.

By the second section, an agreement made by the parties clearly binds them, their heirs and assigns forever, and a division made under the third section has the same force.

The legal effect, then," of a report of fence viewers, under this statute, is to bind the parties in the manner specified in the report in this case, and the statement of its effect, although unnecessary, cannot vitiate or weaken their doings.

The next exception is not of a character to render void . the proceedings. The sections of the chapter which we have just quoted, show that the diyision, being recorded in the town records, becomes binding upon the parties. The section which requires the fence viewers, to furnish a copy of their decision in the premises to each of the parties, could not have been intended to override the third section. The provision is directory to them, and failing to furnish, the copies they may perhaps be liable. But it was not necessary that the plaintiff should prove that such copies were furnished, in order to sustain the action.

Neither can the exception that the items of the fees of the fence viewers were not specified in the report prevail. There is no direction in the statute that the items shall be specified: and the report in this respect is sufficient, so far as not to bar the plaintiff’s right of recovery.

As a general rule, the judgment of a justice of the peace becomes vacated by an appeal. If the papers are sufficient to bring the case legally before the common pleas, so as to give that court jurisdiction, it is enough; and the common pleas will render such judgment as should be.

The justice erred in making up his judgment, but the icopy of the writ and pleadings and the recognizance taken ■were before the court, and were sufficient to give them jurisdiction. Besides, the defendant had a right to appeal, if he saw fit, for the very reason that the judgment was erroneously entered up.

Judgment on the verdict.