Opinion
Decided November 5, 1929.
CASE, for negligent operation of an automobile. The insurer of the defendant's liability brought a bill to cancel the policy and during its pendency withdrew from the defence of the action. Upon the final dismissal of the bill the parties to the action filed an agreement for a consent judgment for the plaintiff. The insurer moved to have the agreement set aside and to be allowed to defend the action, unless the plaintiff waived any rights she had to enforce the policy. On hearing, the court granted the motion and the plaintiff excepted. Transferred by Young, J.
Banigan Banigan (Mr. Edward W. Banigan orally), for the plaintiff.
O'Connor Saidel (Mr. Saidel orally), for the insurer.
The validity of the trial court's order depends upon the evidence before it. That evidence has not been transferred. No findings appearing which make the order improper, all special findings necessary to justify it were presumably made. There is no presumption that special findings reported include all the findings made. It must affirmatively appear that they do before the question whether they are sufficient to sustain the general verdict or order can be considered. Spaulding v. Mayo, 81 N.H. 85. It follows that so far as the record here shows, the court's duty in determining what justice required was properly performed. Petition of Burnham a., 74 N.H. 492; Rand v. Anderson, 74 N.H. 601; Strafford County v. Dover, 74 N.H. 601; Currier v. Silkey, 79 N.H. 534; Eaton v. Clarke, 80 N.H. 586; Spaulding v. Mayo, supra; Gianaris v. Mangurian, 82 N.H. 558.
Exception overruled.