Wentworth v. Town of Farmington , 48 N.H. 207 ( 1868 )

Bellows, ¿T.

The objections to the sufficiency of the allegations in respect to the application to the selectmen of Farmington do not appear to be insisted on; and we think it was too late, after the reference to the county commissioners, to take that exception. The petition sets out an application to the selectmen to lay out this road and their refusal to do it, and if there be\a defect, it is in matter of form in not stating when these things were done. It is substantially in this respect like Tappan’s Petition, 24 N. H. 43; and this was held good after default and reference; and, of course, enough must have been stated to give the court jurisdiction, and so it is here. Objections to the form of the petition must be made before the order of reference to the commissioners, or they will be considered as waived. 70th Rule of Court.

As the application to the selectmen was in substance sufficiently set forth, it is too late to take exception to the jurisdiction of the court on that ground. White v. Landaff, 35 N. H. 132; Huntress v. Effingham, 17 N. H. 585; Stevens v. Goffstown, 21 N. H. 457; Kennett’s Petition, 24 N. H. 139.

The next question is whether the county commissioners rightly acted under the General Statutes, or whether they ought to have been governed by chapter 958 of the Laws of 1850, which was in force when the application for the highway was filed with the clerk, and the order of notice issued; and this must depend upon the decision of the question whether this suit or proceeding was had or commenced before the time when the General Statutes took effect, which was January 1, 1868. Independently of express provisions in the Revised Statutes, and also in the General Statutes, the new law would not affect proceedings of this character already pending, unless the intention to do so was very clearly expressed. As no such intention was expressed in the General Statutes, it is very clear that their provisions cannot apply to suits and proceedings pending at the time they took effect. Kennett’s Petition, 24 N. H. 139; Colony v. Dublin, 32 N. H. 433. In Kennett’s Petition a similar question arose, and it was there decided that the law of 1850, before cited, empowering the road commissioners to impose part of the expense of making new highways upon neighboring towns other than those in which they were laid, did not apply where the petitions were pending when that law was passed.

The question then, is, Was this petition commenced or pending wheiy the General Statutes went into effect? By the law then in force, a j ;>/' tition for a new highway might be presented to the court in term < Imdi., or to the clerk in vacation; and upon its being filed, the clerk wsio y - quired to issue an order of notice, returnable to the next term, to be served upon the towns through which the road might pass ; omi if is understood that so much was done before January 1, 1868, Aihough service was not actually made until January 9th, and so aften'the law took effect; but we are of the opinion that the proceedings must bé regarded as commenced and pending before the first of January.

In Hardy v. Corliss & Trustee, 21 N. H. 356, it is If1 down by Perley, J., that it has been well and long understood in our practice, that, as a general rule, an action is commenced when th filled up with the declaration as the statute provides, in order to have it served on the opposite party; and he says that "so far as we are aware, no decision has been made in this State, applying a different rule to any case for any purpose,” and the cases cited sustain that position.

In Bennett v. Chase, 21 N. H. 583, it is held that a suit is commenced when the writ is made out and sent to the sheriff with the absolute and unequivocal intention of having it served; although it is left undecided whether an action in such case could be regarded as pending in court so as to defeat another action afterwards commenced.

In Clendenning v. Allen, 4 N. H. 385, however, it is said by Richardson, G: J, that, as the writ in this State always contains the declaration in which the cause of action is set forth at large, and as the term’ "pending” means nothing more than "remaining undecided,” an action may, without doubt, be considered as pending from the commencement; and in respect to petitions for divorce, partition, &c., he says that no doubt is entertained that they may be considered as pending in court as soon as they are filed with the clerk.

And so it is held in respect to informations, which contain the substance of the matter, and in this respect differ from writs in the English practice. Queen v. Harris, Cro. Elis. 261; 2 Hawk. P. C. Book 2, chap. 26, sec. 63, where it said that on the day such informations are filed, and before any process sued upon them, they may be pleaded in abatement of any other suit. In Arundell v. Arundell, Cro. Elis. 677, which was error to revise a fine, it was held that the writ was pendant on the purchase thereof. In Hayden v. Bucklin, 9 Paige Ch. Rep. 514, it was held that filing a bill in equity and taking out a subpasna and making a bona fide attempt to serve it without delay may be considered as a commencement of the suit to stop the running of the statute of limitations-, but not good as a lis pendens as to strangers without actual service. A similar doctrine was recognized in Leach v. Noyes, 45 N. H. 368.

In cases like the one before us, the petition is actually filed in court, and process is issued by the clerk with a view to present service, and we think, on the authorities referred to, it must be considered that the proceeding was then commenced, and was pending when the General Statutes went into effect, and it must, therefore, be governed by the law of 1850 ; and consequently the county commissioners had no power to ¡impose part of the expenses upon towns out of the county.

The. report, therefore, must be i-ecommitted.