Otis v. Currier

17 N.H. 463

Opinion

Parker, C. J.

The statute, regulating reviews and new trials, provides that “ all writs of review shall be returnable in the court of common pleas in the county where the judgment was rendered, and shall be fried upon the pleadings filed in the original actions, if any, unless the court, upon such terms as they shall think reasonable, shall permit amendments to be made.” Pev. Stat., chap. 192, sec. 7.

There has been no application in this case for any amendment of the pleadings, or for any leave to file pleadings in the original action nunc pro tunc, which may be a proper course if none were filed before judgment; but it seems that the attempt is to set up, by way of bar to the writ of review, the possession which the original plaintiff obtained under his judgment, as a foreclosure of the mortgage upon which the suit was founded.

This is irregular. The plaintiff in review, instead of replying, should have moved to set aside the plea. But the replication and the demurrer to it have not given any validity to the plea, or cured any defect.

Pleadings set aside.