Steele's Petition , 44 N.H. 220 ( 1860 )

Nesmith, J.

This case comes before the court upon a bill of exceptions allowed by the judge who heard the merits thereof, and accepted the report of the board of road commissioners, laying out the road in question, May term, 1862, in this county. The chief exception of the town of Hudson is founded upon an alleged irregularity in the acts of the two road commissioners appointing Moody Hobbs as a substitute for Ephraim Weston, on the 7th day of December, 1861, three days prior to the day assigned for the hearing, and two days previous to the death of said Weston, and before any actual vacancy had occurred in the board. It appears, also, that notice of the selection or appointment of said Hobbs, and of the time and manner in which it was made, was brought to the knowledge of B. E. Emerson, Esq., who appeared as legal counsel for the town on the day of hearing, and made no objection on any account, but permitted said Hobbs to be sworn into office, and then proceeded to the consideration of the facts and merits of the petition, and the reasons against it; and, after a report is presented in favor of the petitioners, for the first tinte the town of Hudson interposes her objections to the report, and the sufficiency or power of the tribunal which tried their case, on account of the defective appointment of Hobbs as a member of the board of commissioners.

It is a well settled principle of law, that if a pai’ty who has grounds to move to set aside “ any process or proceeding of any kind,” neglect to make his application in a reasonable time after the facts have come to his knowledge, he is deemed to waive the exception by the delay, and will be forever precluded to make the objection afterward. This rule is applicable to courts of general jurisdiction as well as to inferior courts of special or limited jurisdiction, sucb as boards of road commissioners. State v. Richmond, 26 N. H. 242, where this doctrine is examined at length. Hanson v. Hart, 14 N. H. 56; Smith v. Whittier, 9 N. H. 466; Gilford's Petition, 25 N. H. 124; Towns v. Stoddard, 30 N. H. 23. If a party iutend subsequently to avail himself of the want of official qualification in a fence-viewer to make a division of fences, he must take the exception at the time of the hearing, otherwise it will be waived. Glidden v. Towle, 31 N. H. 147. The general doctrine of waiver is well discussed, showing it to be applicable to the facts of this case, in Broom Leg. Max. 121. Upon these grounds the exception can not prevail. In answer to other views presented by the petitionees, it may be suggested that proceedings had duly commenced before the full board .of commissioners, by giving the requisite notices to the parties, and all concerned, of the time and place of hearing under the commission conferring power upon them. Buffum’s Petition, 19 N. H. 445. Section 2, of chapter 51, of the Bevised Statutes, provides that in case any one of the commissioners shall be unable to attend, agreeably to notice, at the time and place of hearing, the two commissioners who do attend may appoint some suitable person to act in his stead. We are of the opinion that the legislature did not intend to repeal this part of the act aforesaid, by their subsequent act of June, 1855, “establishing the judiciary, and for other purposes,” so far as to interfere with those cases where proceedings had already been commenced by a majority of the board for the appointment of a substitute for an associate, who may have been, by sickness or other good cause, unable to discharge his duties at the time assigned for the hearing. The action of the majority, under the circumstances of the case, in providing, in advance of the time of the hearing, by the appointment of Ilobbs as a substitute for Weston, do not seem to us to be premature. Weston’s sickness was of that character as to negative the presumption that he could attend the hearing. No previous hearing seems to be necessary, before the commissioners might act, provided they could act at all. The appointment of a suitable person depended upon the action of the majority of the board. After the selection of the substitute it is sufficient that either party might make objections, for any proper cause, to him who was appointed. But it was in the power of either or both parties to waive all objections, if any existed, and to proceed to the trial of the ease. Such was the action here. The parties had full knowledge of all the facts, and full opportunity to examine all previous proceedings.

.In Kennett's Petition, 24 N. H. 139, the court say, that “objections to the jurisdiction, orto the regularity of the proceedings in petitions for highways, must be taken early, or they will be regarded as waived.” The case comes clearly within the rule, where consent will confer jurisdiction; therefore the proceedings are not void, but valid.

The exceptions are overruled.