Mullin v. Mullin

60 N.H. 16

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1880
• Status: Published

Opinion

Foster, J.

Courts have power to set aside, vacate, modify, or amend their judgments, for good cause shown. Aldrich v. Wright, 57 N. H. 104; Judge of Probate v. Webster, 46 N. H. 518; Rees v. Morgan, 3 Durn. & E. 349. In this respect decrees in divorce suits stand upon the same footing as other judgments. Bellows, C. J., in Adams v. Adams, 51 N. H. 388, 396; G. L., c. 182, s. 15. It may be reasonably inferred from the referee’s report, that the alimony, or a part of it, has been paid to the libellant. But however that fact may be, it does not affect the power of the court to award a writ of restitution. The ancient practice was to award restitution on the reversal of the judgment, only where it appeared by the return of the execution that the damages or costs erroneously awarded by the court below had been actually levied or paid over to the defendant in error. And if the fact did not appear upon the record, the party was put to his scire facias to ascertain the fact, — upon the return of which restitution was awarded. 2 Tidd Pr. (3 Am. ed.) 1,033; 2 Salk. 588; 3 Bouv. Inst. 555; Pittsfield v. Barnstead, 38 N. H. 115, 123; Safford v. Stevens, 2 Wend. 158, 164. The practice in New York is now regulated by the code, but the common-law procedure is recognized in O’Gara v. Kearney, 77 N. Y. 423. See 2 Fisher Dig. 450.

We are unable to conceive of any reason why a judgment in a divorce suit should bear an exceptional character.

Exception overruled.

Bingham, J., did not sit: the others concurred.