Matthews v. Fogg

35 N.H. 289

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1857
• Status: Published

Opinion

Fowler, J.

The only question arising in this case is whether, under the circumstances set forth in the petition, and apparent from the copies from the Probate Court, an appeal shall be granted without a full investigation of the merits of the controversy between the parties. And we think it should be. It distinctly appears that important matters of fact and questions of law arose in the hearing before the Judge of Probate, the right to investigate which before the Supreme Court of Probate has been lost to the petitioner by accident or misfortune, without any fault or neglect on her part. If the decree stands unappealed from, injustice will be done to the petitioner, inasmuch as she will be precluded from litigating important rights and questions before the tribunal whose judgment she was entitled and intended to have upon those rights and questions. And it is not usual or necessary to investigate fully the merits of the controversy between the parties on the petition for appeal. That can much better be done upon the appeal itself, than in a mere preliminary proceeding like the present.

This view of the rights of parties, and of the powers and duty of this court in a case like the present, seems fully sustained by the reasoning in Parker's Petition for an Appeal, 15 N. H. 24, and in N. E. Mat. Fire Ins. Co. v. Lisbon Manuf. Co., 22 N. H. (2 Foster) 170, in the analogous case of a petition for a new trial.

Appeal granted.