Opinion
No. 3580.
Decided June 27, 1946.
Questions relating to the sufficiency of evidence to support a master's findings cannot be raised for the first time in the Supreme Court. An order of the Supreme Court that a master's report be recommitted to him for reconsideration of the allowance to be made for separate maintenance awards a retrial of the entire issue. An order for separate maintenance effecting a permanent division of property is invalid.
PETITION, under P. L., c. 287, s. 29 (R. L., c. 339, s. 29), for separate maintenance. Same case reported in 92 N.H. 247. Facts found by a master on recommittal to him of his original report. The defendant excepted to the decree based on the master's new findings and report, and to certain rulings of the master made at the hearing. Transferred by Tobin, J.
George R. Scammon, for the plaintiff, filed no brief.
John E. McCormick (of Massachusetts) and Alvin A. Lucier, for the defendant, filed no brief.
Since no question relating to the sufficiency of the evidence to support any of the master's findings appears to have been raised in the Superior Court, it cannot be raised here. Bacon v. Thompson, 87 N.H. 270, 271.
It was the position of defendant's counsel at the hearing that the only question before the master was the extent to which the payment or nonpayment of rents from certain property in Lawrence, Massachusetts, influenced him in his previous findings. We do not understand that any such limitation was placed on the scope of the issue to be retried. It was held on the previous transfer that the error which the master committed might have led him to overestimate the defendant's resources, and the case was discharged with the order that "the report should be recommitted to the master for reconsideration of the allowance." This order permitted, if it did not demand, a retrial of the entire issue.
If the order that the defendant convey the homestead farm to the plaintiff was intended to effect a permanent division of property and not merely to secure the order for maintenance, it is invalid. Baker v. Baker, 90 N.H. 307. The case is remanded to the Superior Court for the proper determination of that question.
Case discharged.
All concurred.