Opinion
No. 4951.
Argued October 3, 1961.
Decided October 27, 1961.
1. Where neither a bill of exceptions nor a proposed reserved case was filed by the excepting party and judgment was entered in accordance with Rule 57 of the Superior Court, the denial after hearing of a motion to strike the judgment and for leave to file a proposed reserved case alleging accident, misfortune and mistake, is presumed to have been made in the Trial Court's discretion and the burden is on the excepting party to establish that it was not made in the exercise of discretion or if it was that discretion was abused.
2. The Trial Court has authority in the exercise of its discretion to suspend a rule of that court when justice requires.
Probate appeal from an order revoking the appointment of an administrator c.t.a. The defendant executor's motion to dismiss the appeal was granted by the Superior Court, subject to exception.
No bill of exceptions or proposed reserved case was filed by the excepting party, and final judgment was entered on April 4, 1961, in accordance with Rule 57 of the Superior Court. On April 10, 1961 the plaintiff below moved to strike the judgment and for leave to file a proposed reserved case, alleging accident, misfortune and mistake. After hearing, this motion was denied on April 17, 1961, subject to exception. Any question of law raised by the latter exception was reserved and transferred by the Presiding Justice (Leahy, C. J.).
Robert A. Carignan and Fisher, Parsons Moran (Mr. Moran orally), for the plaintiff.
Burns, Bryant Hinchey and E. Paul Kelly (Mr. Kelly orally), for the defendant.
Rule 57 of the Superior Court provides that "all exceptions . . . shall be deemed waived and final judgment shall be entered" on the next or second succeeding judgment day (depending upon when the action excepted to is taken) "unless a bill of exceptions or proposed reserved case is filed before such judgment day or the court has otherwise ordered." Lampesis v. Comolli, 102 N.H. 306. The plaintiff contends that the ruling of the Trial Court denying her motion to strike the judgment of dismissal and for leave to file a reserved case should be set aside and permission granted because "[t]here is nothing in the record to show that the Court exercised any discretion in its ruling in this matter."
The record before us contains no transcript of the proceedings in the Trial Court at the hearing upon the motion to strike the entry of judgment, and it is undisputed that no record of the hearing was kept. The parties do not agree upon what there transpired.
The burden is upon the moving party to, establish that discretion was not exercised, or if it was that it was abused. See Dunne v. Carey, 97 N.H. 43, 44. The Trial Court had undoubted authority to suspend Rule 57 if justice required. Sanborn v. Railroad, 76 N.H. 65; Hall v. Insurance Co., 91 N.H. 6, 8. "We find nothing to indicate that the ruling was not made in the Court's discretion, and the presumption is that it was. Vallee v. Company, 89 N.H. 285, 291; Perkins v. Associates, 100 N.H. 247." Maryland Cas. Co. v. Waumbec Mills, 102 N.H. 200, 204. "It follows that so far as the record here shows, the court's duty in determining what justice required was properly performed." LaMarre v. LaMarre, 84 N.H. 553. See also, Pike v. Scribner, 101 N.H. 314, 316.
Exception overruled.