FROM MERRIMACK CIRCUIT COURT. It appears from the case that counsel, when moving to have the action discontinued against certain of the defendants, assumed to act in the character of amicus curiae. That term, in its ordinary use, implies the friendly intervention of counsel to remind the court of some matter of law which has escaped its notice, and in regard to which it appears to be in danger of going wrong. It is not ordinarily the function of the amicus curiae to take upon himself the management of a cause. When counsel undertook to remove that the action should be dismissed as against certain of the defendants, he assumed to act as the counsel on behalf of those defendants. He was not reminding the court of something which had escaped its notice, but he was seeking to put in motion its power. Being recognized by the court in that capacity, the least that could be made of his action was a special appearance.
The rule of court provides that actions continued for notice will be dismissed at the second term if the notice is not published, unless on cause shown. Counsel, as amicus curiae, might have reminded the court that here was a rule which it was in danger of violating, and then left it for the court to take such action as it should think proper to do. Counsel, however, instead of suggesting to the court the existence of this rule, took a very different course, and moved to discontinue.
In practice, a discontinuance is a chasm or gap left by neglecting to enter a continuance. By our practice, a neglect to enter a continuance, even in a defaulted action, by no means puts an end to it; and such actions may always be brought forward.
But, whatever may have been the intention of the mover and of the court, the defendant must be taken to have been represented when the orders were made, and should have excepted to them is irregular. It does not appear to me, however, that the order to strike off the discontinuance, made in the presence and with the knowledge of counsel, as it was, can be an irregularity. Neither was the renewal of the order for notice irregular. This brings us to the proceedings of the October term, 1875. The April term being held by a judge who could not sit in the case, no order except a simple continuance could be made. At *Page 417 the October term counsel appeared specially, and moved the court to dismiss the action under the rule. This is a very different motion from a motion to discontinue. It is said, by the late Chief Justice BELL, in his argument as counsel in Hackett v. Pickering, 5 N.H. 21, that the rule adopted by the superior court at the February term, 1826 — Strafford — "provides a new entry, unknown to the common law and the former practice of the court, for putting an end to those cases on the docket dismissed by order of court."
That rule provided that defaulted actions should not be continued without an order of court, and the entry, "dismissed by order of court," appears to have been devised by the court for the purpose of absolutely putting an end to such actions. It is certainly true, that ordinarily a man has a right to suppose that, if he permits himself to be defaulted, the action against him will be ended; and I can well understand that cases of hardship might arise under any practice which permitted defaulted actions to be continued term after term, indefinitely, without any supervision of the court.
But the term dismisses acquired a technical meaning in suits at law in our practice. I think that under the rule spoken of by Judge BELL and ever since in our practice, the term dismissed has signified a final ending of the suit, not a final judgment on the controversy, but an end of that proceeding. When the rule was revived in 1859, and applied to actions continued for notice in which the order of notice had not been complied with, I think the term dismissed had the same meaning.
The court, in the exercise of its discretion, appears to have come to the conclusion that sufficient cause was shown under the rule why the case should not be dismissed. The case does not expressly transfer the question of discretion: if it did, I should not be inclined to revise it.