Sandberg v. Sandberg

Plummer, J.

The trial court had power to grant the libelee’s motion to vacate the decree entered in the case, and reopen it for further hearing, if necessary to prevent injustice. “Whether justice required the reopening of the case for the introduction of the proffered evidence was a question of fact for the trial court.”

Manchester Amusement Co.

v. Conn, 80 N. H. 455, 460;

Coffin v. Coffin, ante, 284;

LaCoss v. Lebanon, 78 N. H. 413, 417. The evidence of the libelant heard by the court has not been transferred. Therefore this is peculiarly a case in which the decision of the trial court cannot be annulled. This court has no knowledge of the evidence presented to the trial court by the libelant. It would be an unusual proceeding to annul a decision of fact without knowledge of the evidence upon which it was based.

*318 In 1907, the libelant brought an action in the New York courts for separation from the libelee. It was decreed in that action that neither party was entitled to separation. The libelee claims that the decree in that case is a bar to this action. A sufficient answer to that contention is that the court may have found upon the evidence of the libelant, that the libelee abandoned the libelant subsequent to the separation proceedings in New York.

Exception overruled.

Snow, J., was absent: the others concurred.