Bergeron v. Dartmouth Savings Bank , 62 N.H. 655 ( 1883 )

The judgment in the suit of the savings-bank against the plaintiff and her husband was not void per se as to her, because the record showed she was a married woman. Prima facie, the contract of the plaintiff, upon which she was sued and upon which the judgment was founded, was binding upon her, and the fact that it came within the statutory exception, as a contract of suretyship for her husband, was a defence that was not made. It might have been made, and the judgment against her thereby prevented. The fact that it was a defence, which if made use of would have been effective, cannot now be treated as having the same force it would have had had it been used, nor in the absence of the other party's fraud can it be set up as a ground of equity for defeating the judgment. 2 Sto. Eq. Jur., ss. 894, 895. The record showing no legal error, and the court having jurisdiction of the cause and the parties, the judgment and the levy following it must stand until reversed or set aside by appropriate proceedings. Claggett v. Simes, 31 N.H. 56; Bruce v. Cloutman, 45 N.H. 37.

The plaintiff is not entitled to a new trial by reason of accident, mistake, or misfortune, if the mistake or accident, against the consequences of which relief is sought, was occasioned by her own fault or negligence (French's Petition, 17 N.H. 472), or by the fault or negligence of her authorized attorney appearing in the case. Handy v. Davis,38 N.H. 411; Heath v. Marshall, 46 N.H. 40. The mistake or accident relied on here, which was the plaintiff's failure to make the defence which she had to the suit, was the result of her attorney's negligence, and justice does not require a new trial. The bill in equity is dismissed.

In the second named suit, the acts of the defendants complained of as trespasses were done by them as agents of the defendant in the first suit, under and by virtue of its right of possession to the land acquired by the levy of its execution. The title and right of possession acquired by the extent were sufficient to justify the defendants' acts. Drown v. Foss,39 N.H. 525; Ladd v. Dudley, 45 N.H. 61.

Judgment for the defendants.

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