Bodge v. Butler

FROM STRAFFORD CIRCUIT COURT. Two questions arise in this case. First, as to the status of the defendant Butler in court, and his right to a trial by jury on the report. Second, as to the admission of the report against the plaintiff's objection.

The defendant Butler, as it appears from the case, was not defaulted. Ordinarily, in our practice, counsel is not obliged to produce a warrant of attorney to entitle him to appear in an action, but the fact of his appearance furnishes prima facie evidence of his authority. Doubtless, if Butler did not authorize the appearance, and it was necessary for the protection of his rights to do so, he might be permitted to show that the attorney was not authorized to appear, and to have the appearance cancelled; but until this was done he was represented in court, and had not been defaulted. Leavitt v. Wallace, 12 N.H. 490.

It seems that the referee, by his report, found Butler guilty, and assessed the damages. The plaintiff elected a jury trial. Independently of the 68th Rule, I do not see that Butler had lost his right to a jury trial by neglecting to go before the referee. I see no reason why, if he chose to do so, he might not permit the report to be made up against him, and still go to trial before the jury. His failure to appear before the referee was not a default in court. By not appearing before the referee he exposed himself, under the 68th Rule, to such a report as might have been the occasion for a judgment against him by default. This course was not taken. Instead of it, the referee proceeded to try Butler, and assess the damages against him. Whatever might have happened if the 68th Rule had been followed need not now be settled. The referee instead of following that rule assessed damages against Butler, and the plaintiff; acquiescing in that determination, elected a trial by jury. Butler was in court; he had not been defaulted, *Page 206 and there was nothing apparent on which to found a motion for default. In such a state of facts there was nothing that I can see which ought to have deprived Butler of a jury trial with the rest. The other party had a right to elect a jury trial, and Butler was no more confined to the referee's award on the question of damages than on any other part of it. He had not been defaulted, and it was his right to go to the jury, under the statute.

What the effect of the admission of the report against the plaintiff's objection might have been under other circumstances is not necessary to decide. As there were no damages to assess, the report on that subject could have been of no consequence, and the report in favor of the plaintiff on the issue of not guilty could not have prejudiced him before the jury. It is well enough settled that a verdict will not be set aside for the improper admission of testimony by which the party objecting could not have been prejudiced. Currier v. Boston Maine Railroad, 34 N.H. 507; Chamberlain v. Davis, 33 N.H. 128; Watson v. Walker, 33 N.H. 145.

LADD and SMITH, JJ., concurred.

Judgment on the verdict in favor of Butler.