Richardson v. Smith

It does not appear that the petitioners objected to the course proposed by the defendant when the hearing before him closed; nor does it appear that there was any further hearing after they left; nor is it found that any fraud was practised. The judgment was not invalidated by the defendant's delay to make his decision known to the petitioners until the day following the hearing. Ela v. Goss, 20 N.H. 53. Whether certiorari is a proper process to set aside a judgment fraudulently rendered, we have no occasion to inquire.

A justice of the peace, upon proper proceedings, has jurisdiction of timber, lumber, stone, or other things upon a highway, incumbering it. G. L., c. 76, ss. 4, 5. The proceedings are of a summary character, and intended to afford a prompt remedy for the removal of incumbrances rendering the public use of the highway unsafe or inconvenient. Whether such lumber or stone is an incumbrance, and its removal necessary for the public convenience, are questions of fact to be determined upon a view and upon other competent evidence by the justice. The magistrate found that the stones were an incumbrance, and their removal necessary for the public convenience. His proceedings as shown by the record were regular, and the record is conclusive. State v. Thompson, 2 N.H. 237; Petition of Landaff,34 N.H. 163, 173, 176, 178; Hayward v. Bath, 35 N.H. 514, 522. To look into the facts and hold that the magistrate decided wrongly (provided we should come to that conclusion), and therefore that he had no jurisdiction, would be turning the process of certiorari into an appeal. The common-law writ of certiorari is awarded after judgment, where the court above has no jurisdiction of the original cause and can render no judgment in it, in order that the judges may inspect the record and see whether the inferior court has kept within the limits of its jurisdiction. 1 Tidd Prac. 333, 334; Petition of Landaff, 34 N.H. 163, 173. The record in this case discloses no error.

Writ denied.

All concurred.