Opinion
No. 3036.
Decided February 7, 1939.
Under P. L., c. 100, s. 32 providing for substituted service upon the Commissioner of Motor Vehicles where the defendant is a non-resident in a suit "growing out of" an "accident or collision" of motor vehicles within this state, notice of a motion to amend a judgment in such action may be made upon the commissioner.
Apart from the statute the court has jurisdiction upon notice to the opposite party, to entertain a motion to bring forward any action and correct the judgment entered therein.
Reasonable notice of such motion to the opposite party is sufficient, and such personal service is not required as would be necessary to give jurisdiction in a new proceeding.
A bill in equity to amend a judgment may be treated as a motion to bring forward an action and correct the judgment.
BILL IN EQUITY, in which the plaintiff prays that the record of the judgment in the action at law of Roland A. Goodwin v. City of Portsmouth and John D. Hubley "be amended so that the same shall relate only to the defendant, the City of Portsmouth." The defendant herein appeared specially and moved that the bill be dismissed "upon the ground that proper legal and sufficient service has not been made upon him." The question whether this motion should be granted or denied was transferred without ruling by Connor, J.
From the agreed statement of the parties the following facts appear. On October 12, 1933, Roland A. Goodwin, of Eliot, County of York and State of Maine, was the owner and operator of a certain motor vehicle which was in collision with a motor vehicle owned by the city of Portsmouth and operated by its agent and servant, John D. Hubley, of said Portsmouth, at the intersection of two public highways in said city of Portsmouth. On March 24, 1934, the said Roland A. Goodwin brought suit against the city of Portsmouth and John D. Hubley to recover for the damage to his motor vehicle. On February 9, 1935, the following agreement for docket entry, signed by the attorneys for the plaintiff and the defendants, was filed in the Superior Court for the county of Rockingham. "No. 5835. Roland A. Goodwin v. City of Portsmouth and John D. Hubley. Agreement for docket entry in the above action it is hereby mutually agreed that the docket entry may be `Judgment for the plaintiff in the sum of $250; no costs; judgment satisfied'." Upon September 22, 1935, the said John D. Hubley died, and by writ dated October 31, 1935, Theresa M. Hubley, his administratrix, brought suit against the said Roland A. Goodwin, in which it was alleged that the death of the said John D. Hubley resulted from personal injuries sustained by him upon October 12, 1933, in the above mentioned collision. This suit was duly entered in the Superior Court for the county of Rockingham, and upon January 10, 1936, the defendant Goodwin filed a plea in bar, in which it was asserted "that the action which is now instituted by said administratrix against said defendant is res adjudicata, and the said administratrix is now barred from maintaining this action" by the judgment in favor of said Goodwin against said city of Portsmouth and said Hubley above referred to. Upon April 1, 1936, the present petition was entered, and upon October 27, 1936, a return of non est was filed in court. Upon February 15, 1937, a new order of notice was issued and service was made upon the defendant Goodwin at Eliot, Maine, by a deputy sheriff of Maine. Thereafter, upon April 23, 1937, the defendant Goodwin, appearing specially, filed a motion to dismiss for lack of service, and upon May 17, 1937, the plaintiff moved for a "further order of notice through service upon the Commissioner of Motor Vehicles." This motion was granted and upon May 20, 1937, service of the petition was made upon the Commissioner of Motor Vehicles. Thereafter, upon June 3, 1937, the defendant Goodwin appeared specially and filed the present motion to dismiss.
William H. Sleeper, for the plaintiff.
Hughes Burns, for the defendant.
The plaintiff, by her bill, seeks to secure an amendment of the record of the judgment in the suit of Goodwin v. City of Portsmouth and Hubley. That action was obviously a suit "growing out of" an accident or collision" within this state, and under the statute, (P. L., c. 100, s. 32) service of any process in that action upon the Commissioner of Motor Vehicles would have constituted lawful service upon Goodwin. We think it is equally obvious that the present proceeding to amend that judgment grows out of the same accident or collision and that service of process therein was properly made upon the Commissioner of Motor Vehicles as Goodwin's attorney. The Superior Court, therefore, has jurisdiction under the statute above referred to.
Even without the aid of the statute, however, the court would have jurisdiction to entertain the prayer of the plaintiff's bill, which might properly have taken the form of a motion to bring forward the suit of Goodwin v. City of Portsmouth and Hubley and to correct the judgment entry therein. This is the usual form of procedure in cases where a correction of the record is sought. See cases collected in Hening, N.H. Dig. Title: Judgments, pp. 886-888. The old ideas that amendments of this kind could be made only during the term at which the judgment was entered and then only in accordance with evidence appearing upon the record, do not prevail in this jurisdiction. Frink v. Frink, 43 N.H. 508. "Every court exercising a continuing jurisdiction — having an office for the preservation of its records, and the charge of those records by a proper officer — has, by law, an implied authority to amend its records, to make them conform to the facts and truth of the case." Frink v. Frink, supra. As a corollary to this proposition it follows that jurisdiction, once acquired over the parties to a suit, continues so long as action by the court for the purpose of making a true record may be necessary. Consequently upon motion to correct a judgment entry, personal service upon the opposing party such as would give jurisdiction in a new proceeding is not required. The most that justice and proper procedure require is that notice of the motion be given to the opposing party. 15 R. C. L. Tit: Judgments, s. 126; Lewis v. Ross, 37 Maine 230.
It is abundantly clear that actual notice was given the defendant Goodwin in this case. Under our informal system of procedure, the plaintiff's bill may, therefore, be treated as a motion to bring forward the action of Goodwin v. Portsmouth and Hubley, and for the correction of the judgment entry therein. The Superior Court may, thereupon, order such amendment as may be necessary to make it conform to the truth of the case "upon any competent legal evidence." Frink v. Frink, supra.
Motion denied.
All concurred.