Garthe v. Mills

385 A.2d 855, 118 N.H. 270, 1978 N.H. LEXIS 395

• Court: Supreme Court of New Hampshire
• Decided: April 25, 1978
• Docket: No. 7943
• Status: Published

Opinion

Memorandum Opinion

This is an appeal from a finding of contempt entered against the defendant arising out of his failure to comply with an ex parte order of the court to allow the plaintiff to retrieve personal property from defendant’s apartment building. Defendant asserts that the superior court is without jurisdiction to issue an ex parte order allowing plaintiff to reclaim his personal property inasmuch as such an order circumvents the normal requirements of notice and hearing provided by the replevin statute. RSA ch. 536-A. Flynn, J., transferred the defendant’s exception to the contempt order.

Although we look askance at such ex parte orders, the central issue before us is factually similar to the case of Nottingham v. Cedar Waters, Inc., 118 N.H. 282, 385 A.2d 851 (1978), decided this day. Because the court apparently entered a criminal contempt penalty, a $300 fine (not clearly payable to the complainant), following an indirect civil contempt proceeding, the court’s order is vacated and remanded for disposition in accordance with the principles stated in Nottingham v. Cedar Waters, Inc. supra.

Exception sustained; remanded.