Parker v. Badger

26 N.H. 466

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

Opinion

Woods, J.

The court will, on good cause shown, and for the promotion of justice and the protection of actual rights, order a judgment to be entered as of a term, or a day in a term, anterior to that on which such order is made. And the judgment so entered will take effect by relation, from the day indicated. Bank v. Cornell, 2 N. H. Rep., 324. But the present case is not one which calls for the exercise of any such powers, or would even justify it. Such an order clearly could not properly be made until after verdict or default or other record confession of indebtedness, fully entitling the party to a judgment. The plaintiffs’ case had reached no such result at the time of their motion.

During the lifetime of the defendant, Badger, he appeared regularly in court; in form, contesting the plaintiff’s action; and might, for anything that appears in the case, have ultimately prevailed in the defence. But pending the suit he died, and of course all proceedings against him, were at an end. His death was suggested upon the record, and no further steps could have been taken, till the administrator should appear, or, on being served with scire facias, make default. Rev. Stat. chap. 161 §§ 16,17.

Before these events occurred, the.estate was represented insolvent, and commissioners were appointed, who by law had the exclusive cognizance of the plaintiffs’ claim in the first instance. The suit thereupon was, or should have been, discontinued. Clindenin v. Allen, 4 N. H. Rep. 385 ; Rev. Stat. chap. 161 § 8. The common pleas had no longer jurisdiction to determine the merits of the action or to order any disposition of it, excepting its discontinuance. The statute has long been so construed. It is therefore clear that the motion in the present case could not properly have been granted.

Motion denied.