Whiton v. Wiggin , 34 N.H. 215 ( 1856 )

Perley, C. J.

The auditor’s report showed that due notice of a hearing before him had been served on the defendant, and that he neglected to appear by himself or counsel. No reason was given for this neglect in the Common Pleas, and none is suggested here. The question is, whether judgment shall be rendered against the defendant, as upon default.

The Revised Statutes, chap. 189, secs. 6 and 7, provide that if either party shall neglect or refuse to appear before the auditor, or to render an account, or to produce such books and papers as may be required, and to answer on oath such interrogatories relating to the matter in controversy as may be pertinent and material, the auditor shall certify the same to the court. The court shall thereupon render judgment against such party, as upon nonsuit or default.

The defendant has neglected to appear, and, following the language of the statute, the court are to render judgment against him, as upon default; and such, we think, is the meaning of the act. The party, on due notice, is bound to appear before the auditor to whom the cause has been referred, and maintain his action or defence, in the same way that he is bound to appear in court; and when the auditor reports the fact that he has neglected to appear, the statute treats his case as if he were nonsuit, or default in court.

A nonsuit or default in court may be taken off' on sufficient cause shown ; and so, if the auditor report that a party has neglected to appear, the court, upon his showing cause, would doubtless have power to relieve him. The appearance referred to in this part of the statute must be understood to be such an appearance as is required to be made to the action in court, either in person or by attorney.

Where an account is required to be. rendered, or the personal attendance of the party is demanded, to answer interrogatories, or books and papers are to be produced, a special notice, and reasonable time and opportunity, should be given; otherwise there would be no neglect or refusal, within the meaning off the statute ; because, ordinarily, the party who has the usual general notice of a hearing could not be expected to know that any thing of this kind would be required of him.

But if, after due notice, he wholly neglects to appear, by himself or counsel, he abandons his suit or his defence, and the intention of the statute was, that in such case he should be treated as if he were nonsuit or default in court.

Judgment against the defendant, as upon default, according to the auditor's report.