Hobbs v. Whidden

27 N.H. 386

• Court: Superior Court of New Hampshire
• Decided: December 15, 1853
• Status: Published

Opinion

Woods, J.

Assuming that the material facts alleged in the petition, namely, the payment of the note and the omission to defend are true, a very strong case is made out for the interposition of the court in behalf of the petitioner. Manifest injustice has been done him, and that, too, through the mere accidental omission of counsel employed by him to appear and make answer to the action. The acknowledged fidelity of Col. Bartlett to his clients would forbid the idea that the omission to make the defence was other than the result of accident or some fault of memory on his part, occasioning the misfortune to the petitioner. But however much the ends of justice may demand a review, and however much the court might be inclined for that cause to grant it, still it is quite plain that we have not now the power. The judgment in the action, which it is proposed to review, was rendered at the September term of the court of common pleas, in 1849, in this county, and this petition was filed with the clerk of this court on the 22d day of June, 1853. More than three years, therefore, had elapsed, since the rendition of the judgment, at the period of the filing of the petition.

Section 6, chapter 192, of the Revised Statutes, which governs this case, provides that “ no review shall be granted upon petition, unless such petition is filed within three years after the rendition of the judgment complained of, or the discontinuance or failure of the original suit,” &e.

The meaning of the provision is plain and explicit, admitting of no doubt as to its construction, and fully denying to this court authority to grant a review in a case like the present. See Tuttle v. Stickney, 3 N. H. Rep. 319.

Petition dismissed.