Wilbur v. Abbot

Supreme Court of New Hampshire

Wilbur v. Abbot

58 N.H. 272

DecidedMarch 5, 1878

StatusPublished

This text of 58 N.H. 272 (Wilbur v. Abbot) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilbur v. Abbot, 58 N.H. 272 (N.H. 1878).

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Opinion

*273 Allen, J.

It is not necessary, in a declaration of debt on a judgment, to aver all the facts which give jurisdiction to the court rendering the judgment. The jurisdiction of a superior court of common law is presumed unless the contrary appears, and nothing is intended to be out of the jurisdiction but that which specially appears to be so. Wingate v. Haywood, 40 N. H. 441. The party setting up a judgment is not bound, in the first instance, to offer proof of jurisdiction, and so is not required to state it in pleading. Rogers v. Odell, 39 N. H. 460. It was not necessary for the plaintiff to aver in his declaration that the court rendering the judgment had jurisdiction of the parties. Profert of the record was unnecessary, and did not entitle the defendant to oyer. 1 Ch. Pl. 366. Not being entitled to oyer of the record, the defendant cannot make it a part of the declaration for the purpose of demurring to it.

The allegation in the third and fourth counts, that one of the parties defendant, named in the judgment, was summoned, must be taken to mean that the other defendant was not summoned. This fact, material on the question of jurisdiction, appears on the face of the declaration; and since it is not shown that the want of summons was cured by an appearance of the defendants in the suit, it must be understood that the court rendering the judgment had no jurisdiction of the parties defendant. The third and fourth counts are bad on demurrer.

The judgment declared on recites that a certain sum of money was recovered with lawful interest from a certain day. All judgments for recovery of money must state the sum recovered with certainty. That is certain which may be made certain ; and it is sufficient if the sum'recovered can be definitely and certainly ascertained by an inspection of\the record, and without going outside for aid. Stokes v. Sanborn, 45 N. H. 274. The date from which the interest is to be computed is given in the record, and the amount can be made certain without going beyond it.

The demurrcrNc- -i;he first and second counts is overruled; to the third and fourth counts-,vit is sustained.

Bingham and Clark, JJ., did not sit.

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*273 Allen, J.

It is not necessary, in a declaration of debt on a judgment, to aver all the facts which give jurisdiction to the court rendering the judgment. The jurisdiction of a superior court of common law is presumed unless the contrary appears, and nothing is intended to be out of the jurisdiction but that which specially appears to be so. Wingate v. Haywood, 40 N. H. 441. The party setting up a judgment is not bound, in the first instance, to offer proof of jurisdiction, and so is not required to state it in pleading. Rogers v. Odell, 39 N. H. 460. It was not necessary for the plaintiff to aver in his declaration that the court rendering the judgment had jurisdiction of the parties. Profert of the record was unnecessary, and did not entitle the defendant to oyer. 1 Ch. Pl. 366. Not being entitled to oyer of the record, the defendant cannot make it a part of the declaration for the purpose of demurring to it.

The allegation in the third and fourth counts, that one of the parties defendant, named in the judgment, was summoned, must be taken to mean that the other defendant was not summoned. This fact, material on the question of jurisdiction, appears on the face of the declaration; and since it is not shown that the want of summons was cured by an appearance of the defendants in the suit, it must be understood that the court rendering the judgment had no jurisdiction of the parties defendant. The third and fourth counts are bad on demurrer.

The judgment declared on recites that a certain sum of money was recovered with lawful interest from a certain day. All judgments for recovery of money must state the sum recovered with certainty. That is certain which may be made certain ; and it is sufficient if the sum'recovered can be definitely and certainly ascertained by an inspection of\the record, and without going outside for aid. Stokes v. Sanborn, 45 N. H. 274. The date from which the interest is to be computed is given in the record, and the amount can be made certain without going beyond it.

The demurrcrNc- -i;he first and second counts is overruled; to the third and fourth counts-,vit is sustained.

Bingham and Clark, JJ., did not sit.

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Bluebook (online)

58 N.H. 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilbur-v-abbot-nh-1878.