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65 N.H. 228

19 A 1002

Holman v. Manning

Supreme Court of New Hampshire

Decided December 5, 1889

Supreme Court of New Hampshire · decided 1889-12-05

At the October trial term, 1889, the defendant appeared and moved for judgment, because the procedure, by amending the plaintiff’s declaration in the action at law by filing a bill in chanc.ery in and as amendment thereof, is not due process of law within the meaning of art. 1 of the fourteenth amendment to the federal constitution. Also, that the trustees be discharged, because the plaintiff having a decree in equity against the defendant, the action at law was dead.

Relies on John Den James Murray and John Kayser v. The Hoboken Land and Improvement Company John Den James B Murray et al. · Walker v. Sauvinet · Smith v. Furbish

Good law ✅— No negative treatment on recordhow we know

Decided 1889-12-05

How this case has been cited

Cited by 5 later decisions — most recently November 1959

5 state decisions

2018891890190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Clark, J.

¶1 “ Due process of law ” generally implies and includes regular allegations, opportunity to answer, and a trial according to some settled course of proceeding. Murray’s Lessee v. Hoboken L. & I. Co., 18 How. 272, 280. “The states, so far as the fourteenth amendment is concerned, are left to regulate trials in their own courts in their own way. A trial by jury in suits at common-law pending in the state courts is not, therefore, a privilege or immunity of national citizenship, which the states are forbidden by the fourteenth amendment to abridge. -A state cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the constitution is met if the trial is liad according to the settled course of judicial proceedings.” Walker v. Sauvinet, 92 U. S. 90, 92.

¶2 The record shows the proceedings in this case to have been according to the settled course of judicial proceedings in this state. According to our practice, amendments may be made at any stage of the proceedings if justice requires. Morse v. Whitcher, 64 N. H. 591. A declaration at law may be filed as an amendment to a bill in equity, or a bill in equity in amendment of a suit at law. Metcalf v. Gilmore, 59 N. H. 417; Walker v. Walker, 63 N H. 321, 326 ; Brooks v. Howison, 63 N. H. 382; Owen v. Weston, 63 N H. 599 ; Tasker v. Lord, 64 N. H. 279. Justice may require the prosecution of an action at law and a bill in equity at the same time, and this may be done. Brooks v. Howison, 63 N. H. 382, 389; Rutherford v. Whitcher, 60 N. H. 110 ; Blake v. Adams, 64 N. H. 86. The court at the trial term may determine the order of trial. Bemis v. Morey, 62 N. H. 511; Clough v. Fellows, 68 N. H. 133; Pearson v. Railroad, 63 N. H. 534 ; Dole v. Pike, 64 N. H. 22. The amendment did not extinguish the action.

¶3 The defendant was not entitled to notice of the taking of the trustees’ deposition. Jones v. Roberts & Tr., 60 N. H. 216; Morrison v . Barker & Tr., 50 N. H. 529.

¶4 Fxceptions overruled.

Bingham, J., did not sit: the others concurred.
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