Hellberg v. Norris

Supreme Court of New Hampshire

Hellberg v. Norris

84 A.2d 835, 97 N.H. 222, 1951 N.H. LEXIS 56

CourtSupreme Court of New Hampshire

DecidedDecember 4, 1951

Docket4071

StatusPublished

Cited by2 cases

This text of 84 A.2d 835 (Hellberg v. Norris) is published on Counsel Stack Legal Research, covering Supreme 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

Hellberg v. Norris, 84 A.2d 835, 97 N.H. 222, 1951 N.H. LEXIS 56 (N.H. 1951).

Pincite

Opinion

Kenison, J.

Since in this state a landlord has no right to seize the tenants’ property for nonpayment of rent, the plaintiffs in this case followed the normal procedure by attaching the defendant tenants’ property to secure any judgment that might be recovered. Standish v. Moldawan, 93 N. H. 204, 206. It appears from the reserved case that the plea of recoupment filed by the defendants *223 constitutes “a claim they have been damaged by the action brought by the plaintiffs, on this lease . . . .” To the extent that the gravamen of the plea of recoupment is malicious prosecution, it was correctly denied. Before one can maintain an action for malicious prosecution, the original proceedings must have terminated in his favor. Restatement, Torts, s. 674 (b). To the extent that the plea of recoupment is predicated upon malicious abuse of process (Friel v. Plumer, 69 N. H. 498), it was permissible only if it could be found that “equity and justice required” it. Klein v. Bronstein, 91 N. H. 42, 43. If “special circumstances exist which entitle the defendant to equitable relief” (Vernon Corp. v. Granite &c. Co., 93 N. H. 315, 316) a plea of equitable set off or recoupment is permitted. Lovejoy v. Ashworth, 94 N. H. 8, 10. The plea has frequently been allowed where one of the parties is a nonresident. Arcadia Mills v. Company, 89 N. H. 188; Lehigh &c. Co. v. Company, 89 N. H. 274, 276.

The Trial Court has found that the tenants’ plea of recoupment should not be allowed in this action. It is clear that the disallowance of the plea was not a technical ruling on pleading (Cf. Soble Inc. v. Company, 96 N. H. 279) but in effect was a determination that the tenants’ claims could not be adjudicated conveniently in this action. The ruling was proper on this record and is supported by authority elsewhere. See Bach v. Quigan, 5 F. R. D. 34; Park Bridge Corp. v. Elias, 3 F. R. D. 94; Gabriel v. Borowy, 324 Mass. 231.

Exception overruled.

All concurred.

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Kenison, J.

Since in this state a landlord has no right to seize the tenants’ property for nonpayment of rent, the plaintiffs in this case followed the normal procedure by attaching the defendant tenants’ property to secure any judgment that might be recovered. Standish v. Moldawan, 93 N. H. 204, 206. It appears from the reserved case that the plea of recoupment filed by the defendants *223 constitutes “a claim they have been damaged by the action brought by the plaintiffs, on this lease . . . .” To the extent that the gravamen of the plea of recoupment is malicious prosecution, it was correctly denied. Before one can maintain an action for malicious prosecution, the original proceedings must have terminated in his favor. Restatement, Torts, s. 674 (b). To the extent that the plea of recoupment is predicated upon malicious abuse of process (Friel v. Plumer, 69 N. H. 498), it was permissible only if it could be found that “equity and justice required” it. Klein v. Bronstein, 91 N. H. 42, 43. If “special circumstances exist which entitle the defendant to equitable relief” (Vernon Corp. v. Granite &c. Co., 93 N. H. 315, 316) a plea of equitable set off or recoupment is permitted. Lovejoy v. Ashworth, 94 N. H. 8, 10. The plea has frequently been allowed where one of the parties is a nonresident. Arcadia Mills v. Company, 89 N. H. 188; Lehigh &c. Co. v. Company, 89 N. H. 274, 276.

The Trial Court has found that the tenants’ plea of recoupment should not be allowed in this action. It is clear that the disallowance of the plea was not a technical ruling on pleading (Cf. Soble Inc. v. Company, 96 N. H. 279) but in effect was a determination that the tenants’ claims could not be adjudicated conveniently in this action. The ruling was proper on this record and is supported by authority elsewhere. See Bach v. Quigan, 5 F. R. D. 34; Park Bridge Corp. v. Elias, 3 F. R. D. 94; Gabriel v. Borowy, 324 Mass. 231.

Exception overruled.

All concurred.

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84 A.2d 835, 97 N.H. 222, 1951 N.H. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hellberg-v-norris-nh-1951.

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