Opinion
No. 4819.
Argued February 1, 1960.
Decided February 29, 1960.
1. As a general rule, notice and an opportunity to be heard are basic essentials of a judicial proceeding.
2. A decree of the Superior Court was set aside where it was made, without hearing, on pleadings to which one party did not agree and there was no agreed statement of facts, no testimony offered, and the record disclosed that the aggrieved party insisted upon its right to a hearing.
3. A municipal court in one municipality has jurisdiction under RSA 597:5 to set bail for the appearance before a municipal court in another municipality of a respondent charged with violation of the provisions of the Unemployment Compensation statute (RSA 282:14F).
PETITION, for certain orders and directions to the municipal court of Brookline.
The petition alleges that on December 30, 1955, the plaintiff, while in the pursuit of his calling as a member of the legal profession at the United States District Court at Concord, was arrested on three warrants charging that on December 21, 1955 at Brookline, county of Hillsborough, he violated the provisions of RSA 282:14C (now section 14F).
Each warrant has the following entry on the back thereof. "December 30, 1955 no arraignment. No pleadings entered. Concord Municipal Court has no jurisdiction over alleged offense at Brookline in the County of Hillsborough, The State of New Hampshire. The respondent appeared before the Justice of the Concord Court in custody of High Sheriff Clyde R. Parker so that bail might be set and furnished for appearance of Respondent before the Brookline, N.H. Municipal Court. Respondent ordered to furnish Surety Company Bond in the sum of $500.00 for his appearance before said Brookline Court on Friday, January 13, 1956. Bond with the American Fidelity Co. by its agent Stewart Nelson as Surety furnished and the Respondent was released accordingly as per above conditions. This complaint and bond to be forwarded to the Tribunal having jurisdiction of said violation to wit: Brookline Municipal Court, where the Respondent may enter such pleas, special or general as he may deem it expedient on the issues involved. Donald G. Matson Justice, Concord Municipal Court. Note: This was a special session held at request of Respondent so that he might be released from custody on bail for later hearing in the Court having jurisdiction of alleged offense."
A corporate surety bond was furnished in the amount of $500 on condition that "the said Angus M. MacNeil shall personally appear as required by said Court at ten o'clock in the forenoon on the 13th day of January, 1956, and for any continuances therefrom, and there answer to said complaint, and there wait and abide the order of court."
Each warrant has the following entry thereon: "Jan. 13, 1956, 10:05 A. M. The respondent having been called three times to answer to the within complaint, and each time failing to appear, the bail money in the amount of $500.00 is hereby declared forfeited. Charles B. Sullivan, Special Justice Brookline Municipal Court."
The petition alleges that plaintiff endeavored unsuccessfully to obtain copies of the complaints from the Brookline municipal court prior to January 13, 1956, and that "no notice of any sort from the court having been received of any charges pending the plaintiff did not appear at any court in New Hampshire . . . He has learned indirectly that he is listed as having defaulted and is a fugitive from justice. But requests for information produces nothing from said court."
In a first amendment to his prayer plaintiff asks the Superior Court to "order and direct that a writ of certiorari issue to the defendants to cause the complete records of the three cases now at the Municipal Court of Brookline, N.H. . . . to be transmitted to this court so that errors of said records may be corrected if any there be. [and] That after the proceedings are brought up to this court that this court quash them or make such order or judgment as law and justice may require including but not restricted to the return of the amount collected by the defendant for bail."
A first hearing was held on June 18, 1956 before Grant, J. where defendant Lathe's counsel stated he "was not prepared to go on on the merits of the case" and that the facts in the petition were not admitted. Thereafter the Court stated "Well, we are not having a hearing today because you are not prepared, and I don't believe I am . . . This is rather complex, and I would like to go through the pleadings again."
On June 21, 1956, the plaintiff acting pro se, as he did previously, and counsel for defendant, Lathe, appeared before the Court again. There was a general discussion of the matter with the Court which ended with the understanding that the plaintiff would amend his petition to which the defendant had no objection.
A motion to amend was filed by plaintiff on June 22, 1956, the prayer thereof having been set out previously herein. He filed another motion to amend on June 27, 1956 asking alternatively for a writ of scire facias, a writ of prohibition, a writ of mandamus or "the issuance of any other writ or process that will subject to the scrutiny and examination of the Court the propriety of the acts of the defendants as regards the petitioner herein."
Defendant filed a motion stating that since the different writs sought by plaintiff in his last motion "raise different issues, perform different functions, arise from different causes, and cannot be combined and call for different pleadings, the defendant is unable to determine the nature of the pleadings now before the Court and therefore is unable to answer further."
Much correspondence, the last of which is dated July 25, 1957, followed between the parties themselves and with the Court relating principally to an unsuccessful attempt to agree on the facts of the case.
On August 24, 1957, the Court made "Findings, Rulings and Decree" which after reciting some of the facts already detailed hereinabove continue as follows: "This resume of the voluminous allegations, statements and pleadings contains the facts relied upon by MacNeil. He contends that the Municipal Court of Concord had no jurisdiction to set bail for his appearance before the Brookline Court. He also contends that he was not subject to arrest on December 30, 1955 (RSA 613:4).
"The Superior Court having jurisdiction to render judgment for the whole or any portion of any forfeited recognizance (RSA 597:33), I believe that it has jurisdiction to entertain MacNeil's petition in this case and that to require him to proceed in the Brookline Court is erroneous or unnecessary. I am further of the opinion that on Dec. 30, 1955, MacNeil was not subject to arrest when he was arrested and that subsequent orders to furnish bail for his appearance were without effect.
"The Defendant is ordered to cause the default and forfeiture to be stricken and the bail and surety to be discharged.
"In the event of an appeal by the Defendant from this decree, all questions of law raised by MacNeil's claim that the Municipal Court of Concord was without jurisdiction to set bail in a case, returnable to the Municipal Court of Brookline are transferred without a ruling."
Defendant filed a lengthy motion to set aside and vacate these "Findings, Rulings and Decree." In it is recited that plaintiff's "Demand for Admission of Facts" was dismissed on July 24, 1957 as was his "Motion for order taking Bill for confessed." Defendant also states that divers motions of the parties were never ruled upon by the Court. And that as to the exchange of correspondence relative to a proposed "Agreed Statement of Facts . . . the effect and standing of this type of `pleading' is unknown to the Defendant." The motion further states that "the Defendant believes that on the state of the record as above set forth she has been denied the right to cross-examine the Plaintiff's witnesses and to present witnesses of her own and thereby her constitutional right to an opportunity for a fair hearing and due process of law has been denied."
Defendant Lathe's exceptions to the "Findings, Rulings and Decree" of the Court were allowed and transferred.
Angus M. MacNeil (by brief and orally), pro se.
Edward F. Smith and James M. Riley, Jr. (Mr. Smith orally), for defendant Lathe.
Defendant first argues that the "Findings, Rulings and Decree," of the Court were premature. We agree with this contention.
"As a general rule, notice and an opportunity to be heard are basic essentials of a judicial proceeding . . . The requirement of notice and hearing need not be observed in matters which are formal, clerical or uncontested . . . and special circumstances may demand the issuance of court orders without initial notice or hearing as in the case of injunctions . . . As a matter of practice notice and hearing represent the general rule and the denial of a hearing is the exception." DiPietro v. Lavigne, 98 N.H. 294, 295; In re Poulin, 100 N.H. 458, 459.
It is true that a motion was properly disposed of on the allegations thereof when that "form of proceeding was accepted by both parties without objection." Kusky v. Laderbush, 96 N.H. 286; Rosenblum v. Company, 99 N.H. 267, 270. It was also proper to decide a claim in a receivership on the statements of counsel without the offer of testimony when that form of proceeding was accepted by the parties. Wein v. Arlen's, 98 N.H. 487, 489. However there was no such agreement in this case. The defendant did not agree to plaintiff's pleadings, there was no agreed statement of facts, nor was any testimony offered. There is nothing in the record to indicate that defendant waived her right to a hearing. On the contrary the record shows that defendant insisted on all her rights.
Even RSA 597:33 on which the Trial Court relies in its decree for taking jurisdiction of plaintiff's petition states that "The superior court may render judgment . . . after hearing." The Trial Court's decree is set aside because it was made without the hearing to which the defendant Lathe was entitled. DiPietro v. Lavigne, supra. In view of this result it is unnecessary to decide whether RSA 597:33 confers jurisdiction on the Superior Court in this case or whether MacNeil was subject to arrest.
Plaintiff's claim that the municipal court of Concord was without jurisdiction to set bail in a case returnable to the municipal court of Brookline was transferred by the Trial Court without ruling.
RSA 597:5 provides that "Every court and justice may require a person accused of an offense in which he is authorized to receive bail to recognize, with sureties, to appear at a future time before himself or any other competent tribunal." The offenses with which plaintiff was charged were not within the offenses described by RSA 597:4 which are bailable by the Superior Court only. The municipal court of Concord therefore had jurisdiction to set bail in this case and this is especially so when, as here, it is done at the demand of and without objection from the plaintiff.
Decree vacated; remanded.
All concurred.