Simmons v. Goodell

2 A. 897, 63 N.H. 458

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1885
• Status: Published

Opinion

Carpenter., J.

The decree made at the second settlement has the same conclusive effect upon the plaintiff as if he had been of full age. He was represented by his guardian, who had notice and was present. French v. Hoyt, 6 N. H. 370; Boody v. Emerson, 17 N. H. 577; Robbins v. Cutler, 26 N. H. 173 ; Thompson v. Paris, ante 421; Peters v. Peters, 8 Cush. 529.

If no appeal is taken, a decree of the court of probate has the same force and effect as a judgment of a court of common law. It is conclusive of all matters direptly in issue and determined. Poplin v. Hawke, 8 N. H. 124; Mathes v. Bennett, 21 N. H. 188, 202; Tebbets v. Tilton, 24 N. H. 120; Wilson v. Edmonds, 24 N. H. 517; Merrill v. Harris, 26 N. H. 142; Hurlburt v. Wheeler, 40 N. H. 73; Morgan v. Dodge, 44 N. H. 255, 257, 258; Jones v. Chase, 55 N. H. 234. Evidence of facts inconsistent with it is incompetent. Judge of Probate v. Briggs, 3 N. H. 309; Allen v. Hubbard, 8 N. H. 489; Parker v. Gregg, 23 N. H. 425; Flanders v. Lane, 54 N. H. 390. If the precise matter in issue does not appear upon the face of the record, extrinsic evidence may be received to show what facts were determined, — as, for example, to show that a particular item of account formed a part of a larger one. King v. Chase, 15 N. H. 9; Morgan v. Burr, 58 N. H. 470; Eastman v. Clark, ante 31.

Erroneous decrees can be corrected only upon appeal. Judge of Probate v. Robins, 5 N. H. 246; Bryant v. Allen, 6 N. H. 116;

tm Kimball v. Fisk, 39 N. H. 110; Judge of Probate v. Lane, 51 N. H. 342, and cases before cited. Errors in the record of a decree maybe corrected at any time. The court of probate has the power inherent in all courts to correct its own records and make them conform to the fact. Allen v Hubbard, 8 N. H. 487 ; Chamberlain v. Crane, 4 N. H. 115; Emery v. Berry, 28 N. H. 473 ; Carlton v. Patterson, 29 N. H. 580; Claggett v. Simes, 31 N. H. 56 ; Wingate v. Haywood, 40 N. H. 437, 452; Stark v. Gamble, 43 N. H. 467.

The plaintiff is restricted to the matters specified in his reasons of appeal. At his instance, no grievances except such as he has assigned will be considered (Bean v. Burleigh, 4 N. H. 550, Mathes v. Bennett, 21 N. H. 188, Hatch v. Purcell, 21 N. H. 544) ; but the whole record is open to the defendant, and any errors which he may point out will be corrected. Wendell v. French, 19 N. H. 205 ; Twitchell v. Smith, 35 N. H. 48 ; Patrick v. Cowles, 45 N. H. 553 ; Caswell v. Hill, 47 N. H. 407.

In the settlement of 1874 the defendant was credited with the uncollected principal of the notes in question, and the interest follows the principal. This was an adjudication that the defendant was not accountable for the remainder of the notes, by which both parties are concluded.

It is not stated what the manifest mistake was by which the item of $100 was credited to the defendant. In the absence of a more definite finding, it must be taken that it was not an error of judgment in the judge of probate, but an error in the record, and it should be corrected. The defendant should be credited with the item of $117.

Decree modified accordingly.

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