Moses v. Craig

95 A. 148, 77 N.H. 586, 1915 N.H. LEXIS 82

• Court: Supreme Court of New Hampshire
• Decided: June 26, 1915
• Status: Published

Opinion

Parsons, C. J.

Whether the defendant was guilty of misconduct requiring the withdrawal of the case from the jury and its continuance to the next term is a question of fact for the trial court. Though the defendant did not formally move for a continuance, his conduct making the continuance necessary was an insistent demand for such continuance, and the order imposing terms was within the principle of the rules of court providing that continuances required by the necessities of a party should be made upon terms. Rules 30, 32,-71 N. H. 680.

Doubtless the defendant may elect to become default. If he does, the question whether he can be charged costs beyond the fee bill may be raised. If, however, the defendant accepts the continuance offered and goes on with the case, he will be held to have elected to pay the terms imposed. • Follansby v. Smith, 46 N. H. 137.

By section 5, chapter 204, Public Statutes, the court is authorized to “establish rules and orders of practice, consistent with the laws, for conducting and regulating its business.” Misconduct such as the defendant’s has not hitherto been of such frequent occurrence as to require a general rule providing that when a continuance is rendered necessary by the misconduct of a party the continuance shall be ordered on terms sufficient to indemnify the innocent party. But the court has authority, when justice requires, to make a special rule for a particular case. Hutchinson v. Railway, 73 N. H. 271, 282; Petition of Rindge, 54 N. H. 106, 108; Deming v. Foster, 42 N. H. 165, 178.

Exception overruled.

All concurred.