Aldrich v. Wright

FROM COOS CIRCUIT COURT. At the January law term, 1872, of the supreme judicial court for this county, the exceptions taken by the defendant on the trial of this case were overruled, and judgment ordered on the verdict. At the February trial term, 1872, judgment was rendered according to the order, and execution issued, which was returned satisfied. At the June law term, 1873, the defendant entered a motion to bring the action forward for a rehearing, and upon this motion briefs were ordered. At the ensuing December law term the motion was granted, the cause reheard, the exceptions sustained, the judgment vacated, a writ of restitution ordered to issue in favor of the defendant for the amount of the judgment, the verdict set aside, and a new trial granted. This was not done without the parties being heard, and, so far as appears, no exception was taken to the orders of the court. The defendant now asks that the orders be carried out; and the plaintiff moves to vacate the order whereby the judgment was vacated and a writ of restitution issued, and asks for a hearing on the question whether the court had the power to make such orders. By ch. 97 of the acts of 1874, sec. 2, the circuit court has jurisdiction of all matters and things of which the supreme judicial court at a trial term had jurisdiction; and by section 3, the superior court has jurisdiction of all matters and things of which the supreme judicial court at a law term had jurisdiction; and by section 12, the records and files of the supreme judicial court are placed in the custody and under the control of this court. *Page 106 It is well settled that the court has the power to vacate a judgment for good cause shown. Adams v. Adams, 51 N.H. 388, and authorities cited; McClees v. Burt, 5 Met. 198; Stickney v. Davis, 17 Pick. 169. There is no suggestion that this was done without notice. On the contrary, the case shows briefs were ordered, and the parties heard; and there is no suggestion that the rights of third parties were thereby affected. This order was in the nature of a judgment, and is final, and cannot be reheard except upon the like grounds and in like cases as the ordinary judgments of the court. Russell v. Dyer, 39 N.H. 528. The matter, then, must be regarded as res adjudicata. Johnson v. Atlantic St. Lawrence Railroad, 43 N.H. 410. It follows, therefore, that the action should have been brought forward upon the docket of the supreme judicial court at the trial term next succeeding the December law term, 1873, the judgment vacated, and the writ of restitution issued. The circuit court being the successor of the trial term of the supreme court, the action should be restored to the docket of that court as matter of course, and the orders entered upon the docket. No new motion or order in that court, or in this court, is necessary for that purpose. This being done, the cause will then stand in order for trial by jury, if either party elects.