White v. Landaff

EastmaN, J.

Where the court have not jurisdiction of the subject matter of a cause upon which they assume to act, all their proceedings are absolutely void. This principle is elementary, and runs through all well considered cases upon the subject. Many of them are collected in State v. Richmond, 6 Foster 240 . But if the court have jurisdiction, their judgments remain good, notwithstanding irregularities and informalities, until reversed by the proper tribunal. Smith v. Knowlton, 11 N. H. 191; Kittredge v. Emerson, 15 N. H. 227; Hollister v. Abbott, 11 Foster *131 442 ; Holmes v. Kennison, 20 Johns. 268 ; Loring v. Mans field, 17 Mass. 894 .

The Court of Common Pleas have power to entertain petitions for the laying out of highways over lands in two or more towns, and also where the selectmen of any single town shall neglect or refuse to lay out a highway prayed for in such town. Rev. Stat., ch. 50, sec. 1.

Under these provisions and the other sections of the statute relative to the matter, it has been held that selectmen have no authority to lay a highway in their town, where such highway forms but a part of a highway extending into another town, the whole of which, if any, is required for the public accommodation; and that in such case a petition to the Court of Common Pleas, founded on the refusal of the selectmen to lay such part of a highway, cannot be sustained; that the Common Pleas have no jurisdiction of the case. G-rijfiris Petition, 7 Foster 843 .

This rule proceeds upon the ground not that the Common Pleas have not jurisdiction of the subject matter of laying out highways in single towns, under certain circumstances, but that they cannot establish them where the petition has asked the selectmen to lay out a highway which the latter are not authorized to do. The Common Pleas have the general jurisdiction to lay out highways in all cases where the selectmen decline to act, provided the petitions to the selectmen are for town highways— highways within their own limits. Upon the presentation therefore of a petition to the Common Pleas for a highway within the limits of a single town, and setting forth that the selectmen have declined to lay the same, unless the petition shows upon its face that it is not for such a highway as represented — as was the case in Griffin’s petition — the court have jurisdiction of the application. It is upon a subject matter over which the statute has given the court jurisdiction, and they have full power, unless something is shown to the contrary, to act in the premises.

The law gives them the jurisdiction, and in order to deprive them of it it must be shown that the statements in the petition are untrue; that there was either no petition presented to the *132 selectmen, or that it was such as the selectmen could not legally entertain.

The averment in the petition in such cases that it is for a highway within the limits of a single town, and that it has been presented to the selectmen, is material and traversable; and if the town does not appear, on notice, to answer such petition, but makes default; or, appearing, does not take the exception till after reference of the petition and- hearing before the commissioners, the allegations of the petition will be taken as conclusively admitted. Toppan's Petition, 4 Foster 43 ; Kenneth Petition, do. 141; Petition of Manchester, 8 Foster 296 .

Such being the well established rule in regard to the effect of a default or failure to object to the petition, it must be held in such eases that whatever the petition shows upon its face will be taken as true; and if it shows jurisdiction in the court of the subject matter, there can be no objection to the court’s proceeding with the case.

And after a report has been made upon a reference of a petition, every proper presumption is to be made in favor of the regularity of the prior proceedings; and the court will not depart from the records and papers on file, and go into an examination of extraneous matters going to affect the preliminary proceedings. So long as their records and files show that they have jurisdiction of the subject matter, they will not go beyond them and consider matters that are unseasonably brought into court, and thereby oust themselves of jurisdiction. Stevens v. Goffstown, 1 Foster 459 .

Such being the rules upon this subject, as recognized and established in this State, the disposition of the exceptions taken to the acceptance of this report appears to us plain. There is nothing in the petition going to show that the court had not perfect jurisdiction of the case. The petition was referred to the commissioners without objection, and they have made their report. If the town had intended to object to the jurisdiction of the court, they should have done it before the reference. It is now too late; and the court can not, at this stage of the proceedings, *133 receive evidence aliunde, to contradict their records and oust themselves of jurisdiction.

The exception, on account of impropriety in procuring signatures to the petition, is a matter more particularly between the party charged with the offence and the individuals themselves. This exception also comes at a late day. Had it been seasonably taken the court might have required security for costs to have been given to the aggrieved parties. Were all or a majority of the names on the petition of the class named, a different question might be presented. But there is a large number of names affixed to this petition besides the few who complain. The petition is a matter of public interest, and does not depend upon the number of names attached to it; and so long as there are genuine signatures affixed, it would seem that it should be entertained. We all think that the exceptions must be overruled and the Judgment affirmed.