Clarke v. Manchester , 1876 N.H. LEXIS 175 ( 1876 )

Proceedings were commenced in this case by a petition to the mayor and aldermen of the city of Manchester for the establishment of a new highway, wholly within the limits of said city, under the provisions of ch. 61, sec. 1, Gen. Stats.

The mayor and aldermen laid out the highway, and assessed the plaintiff's damages. From the decision of this tribunal, both as to the laying out of the highway and the assessment of his damages, the plaintiff appealed to the supreme court, under the provisions of ch. 63, sec. 10, Gen. Stats.

Subsequently, the county commissioners, to whom had been referred the plaintiff's appeal, reported a laying out of said highway, and assessed the plaintiff's damages.

The question is now presented, whether the judgment of the mayor and aldermen was vacated by the plaintiffs appeal, so that the subsequent action of the commissioners established a new, and, in a certain sense, independent highway, which the court alone had power to discontinue; or whether, after the plaintiff's appeal, the judgment of the mayor and aldermen still existed, suspended and in abeyance merely, and the jurisdiction of the matter remained with them, so that, without the leave of the court, they had the power to discontinue the highway.

What was the effect of the plaintiff's appeal upon the judgment of the mayor and aldermen? Did it oust them of jurisdiction?

The effect of all appeal, said BELL, J., in Wallace v. Brown,25 N.H. 218, "is to vacate for most purposes the judgment below, and the judgment in the court above is a distinct and original judgment." "Every appeal assumes that, in the opinion of the appellant, the judgment appealed from is wrong. The object of the appeal is, that the case may be tried anew, and a proper judgment entered." The object of the appeal is, "to carry the cause to a higher tribunal, to be there tried anew, and a new judgment entered, according to the opinion of the court above." Although an appeal is said to be a continuation of the original suit, it is analogous in its effect to an award of a new trial, by which the previous verdict is entirely set aside, and the case is to be heard anew, like an original action. Bixby v. Harris, 26 N.H. 125, 128. The pleadings and the evidence in the court below remain unaffected. The judgment therein is suspended, and the action of the supreme court commences at that stage of the proceedings which existed immediately prior to the judgment of the court below. Stalbird v. Beattie, 36 N.H. 456.

But, at the point where the control of the appellate court commences, it would seem that the control of the inferior court should cease, otherwise there might be a serious conflict of jurisdiction and authority. A cause ought not to be buffeted about by the orders of independent tribunals. As the inferior court cannot proceed to enforce its judgment after it has become suspended by the appeal, so, also, it should not be permitted to reverse the suspended judgment, because, although the mischief to the party aggrieved might not be so serious, still, important rights would be affected, if in no other respect, certainly in respect of costs properly and reasonably incurred.

For this reason it is held, that, after a case has been appealed, a judgment by default cannot be rendered below before the procedendo has been sent down. Messenger v. Marsh, 6 Iowa 491.

After all appeal, no order can be passed in the case which in any contingency can possibly prejudice the appellant. Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253. An appeal suspends all proceedings until it is decided. Stone v. Spillman, 16 Tex. 432; Bryan v. Berry, 8 Cal. 130; McGlaughlin v. O'Rourke, 12 Iowa 459; Levi v. Karrick, 15 Iowa 444; Helen v. Boone, 6 J. J. Marsh 351; State v. Judge, c., 11 La. An. 728; Yeaton v. United States, 5 Cranch. 281; The Venus, 1 Wheat. 113; Archer v. Hart,5 Fla. 234; Atkins v. Wyman, 45 Me. 399. Therefore it has been held, that, after an appeal from the state circuit court has been taken and allowed, that court ceases to have any jurisdiction in the cause, and thereafter the record cannot be changed by either party; nor can an entry be filed nunc pro tunc — Stewart v. Stringer, 41 Mo. 400; and on a prayer for an appeal in the court below, and the execution of a bond on the rising of the court, that court has no longer jurisdiction of the case, and the entry of a dismissal of the cause in that court is a nullity. Freeman v. Henderson, 6 Coldw. (Tenn.) 647; — see, also, Suggs v. Suggs, 1 Overt. (Tenn.) 2.

The decree of a judge of probate is vacated by an appeal, and a new decree, affirming or reversing the former one, must be made by the appellate court. Mathes v. Bennett, 21 N.H. 188.

Our statutes are not in conflict with the principle of these decisions. With regard to probate appeals, it is declared, — "Every decision of a judge, so far as the same shall be affirmed or unaltered by the supreme court upon appeal, shall be considered to have been in force from the time the same was made or passed by the judge of probate" — Gen. Stats., ch. 188, sec. 12; and in respect to appeals from the decision of selectmen, it is provided that "the commissioners shall consider and report upon the matters in regard to which the appeal is taken, as set forth in the petition; and the decision of the selectmen may be affirmed, modified, or reversed by the court, according to the report of the commissioners. Gen. Stats., ch. 63, sec. 12.

In both cases the subject-matter of the controversy is brought by the appeal within the jurisdiction of the appellate court (Perkins v. George,45 N.H. 453), and in neither case is the cause remanded by writ of procedendo or other order to the inferior court; but in the one case the "decision of the judge" of probate (although for convenience regarded, if unreversed, as having been in force from the time it was made by the judge of probate) is affirmed nunc pro tunc "by the supreme court," and in the other case the decision of the selectmen is "affirmed, modified, or reversed by the court."

In both cases there is a new decree, — a decree and judgment by the appellate tribunal; and with the authority of the appellate court to make such final decree, the inferior court during the suspension of its vitality cannot interfere.

In the present case, then, there was a laying out of the highway by the supreme court, and it "cannot be discontinued without the consent of said court." Gen. Stats., ch. 66, sec. 2.

The demurrer admits that the plaintiff has sustained damages by the laying out of the highway. The proceeding before this court is an appeal from the assessment of those damages, and the statute requires that the court shall assess his damages by a jury, and issue execution therefor. Gen. Stats., ch. 63, secs. 13, 14.

It is only "in cases where execution may not be issued by the supreme court for damages on account of a highway" that the person entitled thereto may recover them by action of debt. Gen. Stats., ch. 64, sec. 7.

To send the plaintiff out of court for the relief provided in such a contingency would be inconvenient, burdensome, and unnecessary.

Demurrer overruled.