Opinion
No. 7271
Decided September 30, 1975
1. Order requiring plaintiff to post security for any extension of order for defendant's support was a condition of order for dismissal of defendant's motion for discovery of plaintiff's assets and not of order for transfer of plaintiff's exceptions to supreme court.
2. Stay of order for security to permit transfer of plaintiff's exceptions in advance of any hearing on issue of extension of support order rested in discretion of trial court.
3. Order continuing in effect a prior order that plaintiff post security by specified date or discover his assets upon noncompliance was not a penalty imposed upon plaintiff as excepting party but a regulation of statutory right of exception.
4. The filing of a bill of exceptions under RSA 490:10 did not entitle plaintiff as matter of law to have his exceptions adjudicated in supreme court in advance of trial of merits of underlying petition and did not deprive trial court of jurisdiction to determine manner and timing of trial.
5. Supreme court found no occasion for exercise of its supervisory power to stay trial court's order pending appeal.
Sulloway, Hollis, Godfrey Soden and Martin L. Gross (Mr. Gross orally) for the plaintiff.
Devine, Millimet, Stahl Branch and Richard E. Galway, Jr. (Mr. Galway orally) for the defendant.
MEMORANDUM OPINION
Following the opinion of this court in Calderwood v. Calderwood, 114 N.H. 651, 327 A.2d 704 (1974), the Trial Court (Dunfey, J.) after hearing, ordered on April 17, 1975 that the defendant's "motion for discovery is denied on the condition that Walter A. Calderwood posts the sum of $15,000.00 with the clerk of court as security for any extension of the support order in issue that may be decreed." The plaintiff was "ordered to comply. . . on or before May 16, 1975. . . [o]therwise [the defendant's] motion for discovery shall be granted, and in such an event [the plaintiff] is ordered to comply [with discovery] on or before June 20, 1975." To this order the plaintiff excepted, moved for rehearing, and upon denial of his motion filed a bill of exceptions. Upon objection thereto by the defendant, the Trial Court (Dunfey, J.) entered an order on June 20, 1975, allowing the plaintiff's bill of exceptions "only on the conditions that said order of April 17, 1975 shall not be stayed pending said appeal and with the understanding that the within action is to be heard on its merits at the earliest possible date."
On July 16, 1975, the plaintiff filed in this court a "motion for stay pending appeal", asking that he "be relieved of the . . . order of June 20, 1975 insofar as it purports to impose conditions on the plaintiff's right of appeal", and that this be done by a stay of the order of April 17, 1975, denying the defendant's motion for disclosure of plaintiff's assets upon the posting by the plaintiff of $15,000 as security for any extension of the order for defendant's support.
The plaintiff's motion for stay of the superior court order of April 15, 1975, pending his appeal is denied. The order for security was a condition of the order providing for dismissal of the defendant's motion for discovery of the plaintiff's assets. The alternative of disclosure remained open to the plaintiff. The order for security was not a condition imposed upon the transfer to this court of the plaintiff's exceptions, although the requirement that the order should remain in force was such a condition of the order of June 20, 1975.
The order for security was made pursuant to the October 1974 opinion of this court that "the order for the taking of Walter's deposition should be vacated provided that he furnish security in such amount and within such time as the trial court shall determine." Calderwood v. Calderwood, 114 N.H. 651, 654, 327 A.2d 704, 706-07 (1974). The furnishing of security was not there stated to be contingent upon prior entry of an order for extension of an order for support originally sought by the defendant in April 1970. Calderwood v. Calderwood, 112 N.H. 355, 296 A.2d 910 (1972).
Whether the order for security entered on April 17, 1975, should be stayed to permit transfer to this court of the plaintiff's exception thereto in advance of any hearing on the issue of extension of the support order rested in the discretion of the trial court. The order of June 20, 1975, that the earlier order should remain in effect was not a penalty imposed upon the excepting party but a regulation of the "statutory right of exception". Wallace v. Wallace, 75 N.H. 217, 219, 72 A. 1033, 1034 (1909). Merely by filing a bill of exceptions under RSA 490:10 the plaintiff did not become entitled as a matter of law to have his exceptions adjudicated in this court in advance of trial of the merits of the underlying petition. See RSA 490:14-a (Supp. 1973); cf. RSA 491:17. RSA 490:10 does not require that exceptions to interlocutory rulings and directions of the superior court be transferred in advance of final disposition of the principal action. See State v. Cote, 95 N.H. 248, 252, 61 A.2d 710, 713 (1948); cf. Bagley v. Small, 92 N.H. 107, 26 A.2d 23 (1942). The filing of the bill of exceptions, with a request for transcription of the record, did not deprive the trial court of its jurisdiction to determine "the manner and timing of the trial". Jamestown Mut. Ins. Co. v. Meehan, 113 N.H. 639, 641, 312 A.2d 689, 691 (1973); see 4 N.H. Judicial Council Rep. 33, 34 (1952). We find no occasion to exercise the supervisory power of the court.
Motion for stay pending appeal denied.
GRIMES and GRIFFITH, JJ., did not sit.