Opinion
No. 4190.
Decided April 7, 1953.
The enforcement of the rules of the Superior Court rests within the discretion of that court. There was no abuse of discretion in the denial of defendants' motion to extend the time for depositing the costs of transferring the case to the Supreme Court, where after being notified that compliance with the rule relating to such costs (Superior Court Rule 73) was necessary the defendants permitted the time to expire under a mistake of judgment as to the applicability of the rule. The Trial Court is not required to adopt a reserved case as proposed by counsel when it omits certain facts and contains matters of argument and contention.
BILL IN EQUITY, in which the plaintiff, Merchants National Bank, seeks to have set aside as in fraud of creditors a conveyance of real estate made August 9, 1947, by the defendant, John F. Sullivan, to his wife, Jennie. There was a trial by the Court resulting in a decree for the plaintiff and the defendants' exceptions were transferred to the Supreme Court which ordered the case returned to the Superior Court for further hearing. Merchants National Bank v. Sullivan, 96 N.H. 430. On rehearing the defendants took various exceptions and a reserved case was allowed by the Presiding Justice. The transcript of the evidence was marked by the parties, and by letter dated November 28, 1951, the Clerk of the Superior Court notified the defendants' attorneys to deposit a sum for printing within twenty days; otherwise, in accordance with Rule 73 of the Superior Court, "all exceptions shall be deemed waived." On December 26, 1951, and after the expiration of the twenty day period, the defendants sent to the Clerk of Court a letter and a copy to the plaintiff's attorney as follows:
"We are enclosing herewith, Motion to Extend Time for Paying Costs of Preparing Transcript in the above entitled matter.
"I was under the impression that the previous motion that was allowed by the Supreme Court took care of this matter in the present instance also and we have been preparing the record by having typewritten copies made of same. Brother Hartnett has raised some question as to whether or not this is so and in order to avoid any controversy in the matter, we are filing another motion with the Supreme Judicial Court and also this Motion."
On the same day a motion for the transfer of the transcript without printing was filed with the Supreme Court and this was allowed on December 28. On January 4, 1952, the plaintiff's attorney filed objections to the allowance of the motion for the transfer of the transcript and requested reconsideration on the grounds among others that by failure to comply with Rule 73, the defendants had waived their exceptions. On January 23, the Supreme Court denied the request for reconsideration, but without passing on the allegations in the plaintiff's petition that the defendants had waived their exceptions below. On February 14, the Superior Court, after a hearing, denied the defendants' motion to extend the time for depositing the costs of transferring the transcript. To this denial and to the refusal of the Court to allow the proposed reserved case filed by the defendants they excepted. Other facts appear in the opinion. Transferred by Goodnow, C. J.
Charles F. Hartnett (by brief and orally), for the plaintiff.
McCabe Fisher (Mr. McCabe orally), for the defendants.
It is axiomatic that the enforcement of its rules rests within the discretion of the Trial Court. Lehigh c. Company v. Company, 89 N.H. 274, 275, and cases cited. We perceive no abuse of discretion here, as among other factors it appears the defendants, although notified in ample season that they should comply with Superior Court Rule 73, chose rather to rely on their own judgment that the rule was not applicable. Having done so, they cannot now complain. Broderick v. Smith, 92 N.H. 33, 36. Neither can they prevail upon their exception to the Court's failure to adopt their proposed reserved case. It appears they omitted certain facts from it, while inserting other matters of argument and contention, all of which furnished sufficient reason for the Court's refusal. Woodsville Fire District v. Cray, 88 N.H. 264, 267. It follows the order is
Judgment on the decree.
GOODNOW, J., did not sit: the others concurred.