Plummer v. Meserve , 54 N.H. 166 ( 1873 )

Isaac W. Smith, J.

Ordinarily it will be regarded as a judicious exercise of the discretion of the judge at nisiprius “ to decline to examine or to decide any questions of law raised by the report of an auditor, unless the parties distinctly waive the right of a trial by the jury, and of a transfer to the superior court.” King v. Hutchins, 26 N. H. 139. Each party has his election, upon the coming in of the report, either to submit it to the court for decision, or to go to the jury. If he elects the former course, he is regarded as waiving the latter. Having his choice of two tribunals, he is not permitted to take his chances with one, and, if the result is not satisfactory, resort to the other. When, therefore, an auditor’s report is submitted to the court without reseiwing the right to go to the jury, the report is treated as a case agreed, and a trial by jury as waived. Hoyt v. French, 24 N. H. 198; Beebe v. Dudley, 30 N. H. 34; Goodrich v. Railroad, 38 N. H. 390.

If we construe this case as reserving the question whether in the exercise of the sound discretion of the court the plaintiff’s motion to go to the jury should have been granted, we are constrained to say that we see nothing in the circumstances of the case to take it out of the ordinary operation of the rule. No right of trial by jury was reserved, and no request to transfer questions of law arising upon the auditor’s report was made. There seems to be nothing in the circumstances of this case different from those of any other case founded upon the report of an auditor.

No questions of law being reserved, there must be

Judgment for the defendant at the trial term upon the report.