Chichester v. the New Hampshire Fire Ins. Co.

Per Curiam. General Statutes, § 1129, provided that upon the trial of all matters of fact in any action, in certain courts of which the Court of-Common Pleas was one, if either party should think himself aggrieved by the decision of the court upon any question of law arising in the trial, he might *708 appeal from the judgment in the cause and remove such question for revision to this court. General Statutes, § 1110, provides that should the plaintiff, in any action in either of those courts, after he has rested his case, be nonsuited by order of the court, because it was of opinion that he had failed to make out a prima fade case, he may file a written motion within a certain time to set aside such judgment, and should such motion be denied, “ revise the decision of the court, by appeal as in other cases.” This section was evidently intended to give a new right, and to give it on certain conditions. By the Public Acts of 1897, p. 888, Chapter 191, the main provisions regulating the jurisdiction of this court were brought together. One of them, which had been contained in General Statutes, § 1129, was re-enacted in terms, and that particular section repealed. There was no express repeal of § 1110, and no general clause repealing all laws inconsistent with the new Act. The appellant contends that it was repealed by necessary implication, or at all events rendered unimportant by the general language of the Act of 1897, § 2. Had § 1110 never existed, an appeal would have lain under General Statutes, § 1129, from a compulsory judgment of nonsuit, rendered, as that now in question was, as the necessary result of the decision of a question of law, and would now lie under the Act of 1897. But the re-enactment of the general appeal statute cannot be deemed to detract from the force of § 1110. Both statutes may stand well together. The same reasons which originally led to the enactment of § 1110 obtain still. Such a nonsuit may be asked and granted when there is no opportunity for a full consideration of the questions involved. It was therefore thought proper, by the legislature, to require the matter to be brought again to the attention of the trial court, at a later period, for review, before a remedy could be sought here. Section 1110 impliedly denies an appeal, unless a motion to set aside the judgment has been denied. No such motion having been filed, we have no jurisdiction to entertain the appeal and the motion to erase the cause from the docket is granted.