Opinion
No. 3180.
Decided November 6, 1940.
The statute of declaratory judgments (Laws 1929, c. 86) requires that a claim be made adverse to the claim of the petitioner, otherwise the petition is not maintainable.
Nor is such petition sustainable when other remedy is available and adequate, nor where the petitioner seeks no remedy other than he has in connection with pending actions, whether brought before or after the filing of the petition.
PETITION, for a declaratory judgment.
The plaintiff Dodge, while driving an automobile of which he was the bailee and of which the plaintiff Gitsis was the owner, had a collision in Claremont with a motorcycle driven by the defendant Thornton with the defendant Brace as his passenger. Soon after the petition was brought Dodge was sued by the defendants in separate actions for his alleged blame for the collision. Brace is a non-resident and has brought his action in Grafton County where Dodge is a resident, while the action of Thornton, a resident of Claremont, is pending in Sullivan County. There has been no trial of either action.
The petition sets forth that the plaintiffs have no adequate remedy at law, and that the proceeding is necessary to enable them properly to investigate the claims of the defendants and to prepare for possible trial of the claims.
The question whether the petition should be dismissed upon the foregoing facts is raised by motion of the defendants for its dismissal and has been transferred without ruling by Young, J.
Sewall, Varney Hartnett (Mr. Hartnett orally), for the plaintiffs.
Albert D. Leahy, for the defendants, filed no brief.
While the petition alleges a claim of the defendants against the plaintiff Gitsis, it was conceded in argument that they have made none and that at most the existence of the claim is only a possibility. The declaratory judgment statute (Laws 1929, c. 86) requires that there be an adverse claim to the claim of the petitioner. Since it does not appear that the defendants here have any claim against Gitsis, he has no right to maintain the petition. Merchants c. Co. v. Kennett, 90 N.H. 253. "There is no right to an adjudication of matters not in contention." Conway v. Board, 89 N.H. 346, 349.
As to the plaintiff Dodge, the statute has been construed to deny the right to maintain a petition when other remedy is available and adequate. Baker v. Goodale, 85 N.H. 561; Reynolds v. Chase, 87 N.H. 227, 229; Chase v. Bank, 88 N.H. 275, 276. It was not designed to give this plaintiff any rights not possessed by him in connection with the actions pending against him. The only new right created by the statute is "to make disputes as to rights or titles justiciable without proof of a wrong committed by one party against the other." Faulkner v. Keene, 85 N.H. 147, 149. To permit the continued maintenance of the petition after other appropriate proceedings have been brought for the determination of the matters in controversy would extend the application of the statute beyond its intended scope. The circumstance that a petition is brought but not heard upon its merits, before, instead of after, the institution of such other proceedings is not a differentiating factor.
Petition dismissed.