Opinion
No. 4226.
Argued September 1, 1953.
Decided September 22, 1953.
While the granting or denial of a motion for a new trial is within the discretion of the Trial Court, the discretion in passing upon such a motion requesting an oral hearing cannot be exercised in a summary manner without notice and an opportunity to be heard where the request is not clearly repetitious, frivolous or solely for the purpose of delay.
PETITION, for a new trial. R. L., c. 398, s. 1. Originally at the close of plaintiff's evidence the defendant's motion for a nonsuit was granted by the Trial Court and affirmed in this court, being the same case reported in 97 N.H. 474. The concluding paragraph of the petition reads as follows:
"The defendant, Lucien LePage, was in the Court Room at the trial. He had given a deposition in preparation for the trial in which he testified that he was driving so that if he had put pressure on his brakes he would have over-turned the truck on the road. The plaintiff's attorney was justified in believing that on the state of evidence and the statement of the Court with reference thereto the Court would give the case to the Jury. The action of the Court came as a surprise to the plaintiff's counsel at a time when he could not avail himself of the evidence from the defendant, LePage. The evidence which the defendant LePage would have given would have clearly established that he was driving at such a reckless speed at the time of the accident that he was endangering the lives of others, and the case, of course, would have gone to the Jury. As a result, the plaintiff says that his attorney was not negligent in the performance of his duty in the trial of the case; that he has suffered a misfortune in the manner aforesaid that justice has not been done and that further hearing would be equitable . . . .
"The petitioner respectfully requests that he may be heard orally."
The Trial Court denied the petition without hearing. The question of law raised by the Trial Court's refusal to grant a hearing on plaintiff's motion for a new trial was reserved and transferred by Wescott, J.
Joel W. Eastman (by brief and orally), for the plaintiff.
Paul E. Nourie (by brief and orally), for the defendant.
"A new trial may be granted in any case when through accident, mistake or misfortune justice has not been done and a further hearing would be equitable." R. L., c. 398, s. 1. Under the provisions of section 2 of this chapter, it is provided that when the petition is filed ". . . such notice shall be given to the adverse party or his attorney as the court may order." The question to be decided under this chapter is whether a petition for a new trial, to which is appended a request for an oral hearing, may be denied without a hearing.
As a general rule, notice and an opportunity to be heard are basic essentials of a judicial proceeding. American Motorists Ins. Co. v. Garage, 86 N.H. 362, 368; Wetmore v. Karrick, 205 U.S. 141, 160; I Merrill, Notice (1952) s. 531. Since notice is of no value if a party is denied opportunity to be heard in support of or in defense of his claim (Restatement, Judgments, s. 6, comment (f)), statutes expressly providing for notice are generally construed to include the right to a hearing. Governor Council v. Morey, 78 N.H. 125. The provisions of R. L., c. 390, s. 14, have been so construed in the Morey case. The statute reads as follows: "The court shall order notice to be given, in such manner as they think fit, of any petition, complaint, libel, application or motion in writing filed therein, and no judgment or decree shall be rendered thereon without compliance with such order." The requirement of notice and hearing need not be observed in matters which are formal, clerical or uncontested (Emery v. Berry, 28 N.H. 473) and special circumstances may demand the issuance of court orders without initial notice or hearing as in the case of injunctions. Superior Court Rules 133-136, 93 N.H. Appendix. As a matter of practice notice and hearing represent the general rule and the denial of a hearing is the exception. Hubley v. Goodwin, 90 N.H. 54; Watkins v. Railroad, 80 N.H. 102.
While it is well established that the granting of a new trial or its denial is within the discretion of the Trial Court, where the request is not clearly repetitious, frivolous or solely for the purpose of delay, the discretion cannot be exercised in a summary manner without notice and an opportunity to be heard. Willey v. Harrower, 97 N.H. 373. See anno. 23 A.L.R. (2d) 852; Glazer v. Rosoff, 120 Conn. 120. The plaintiff is entitled to the opportunity to offer proof in support of his motion for a new trial. Dame v. Car Works, 71 N.H. 407, 408.
Case discharged.
All concurred.