Rigney v. Hutchins

The evidence satisfactorily establishes the fact that the default of the petitioner was by accident, and that he intended to have appeared and answered to the action. The attorney of the plaintiff in that suit might well, under the circumstances, have assented that the de*258fault should be taken off, and the ease stand for trial ; or the justice might, on motion, have ordered that it should be done, -the petitioner having made his appearance on the same day, and the counsel for the respondent being present. But judgment having been rendered on the default, the petitioner has no remedy except by this application under the statute, which authorizes the justices of this court to grant one review, or new trial, upon judgments rendered in this court, or in the common pleas, or before any justice of the peace, “ if it shall appear to them that justice hath not ‘ been attained, and that a further hearing of the cause ‘ would (all circumstances considered) be just and equitable.” N. H. Laws 54. The case appears to be one within the intention of the statute, and the prayer of the petitioner is granted, the costs to abide the event of the suit.

The statute provides that the process on said review, or new trial, shall be by writ of review, as in other cases, and that the new trial “ shall be in the county where the original cause was tried.” No reviews of judgments of justices of the peace can be instituted, as a matter of right; and the clause last cited seems to indicate, that where a new trial is granted in an action in which judgment has been rendered, by a justice of the peace, the legislature did not intend that the review should be brought before him. Cases might occur in which it could not, by reason of his death, removal, or the expiration of his office. No practice is recollected upon the subject; but we are of opinion that so long as this court had a jury for the trial of causes, the writ of review might well have been directed to be brought in this court, and that under the transfer of jurisdiction, by the act of 1832, it should now be brought in the common pleas.