58 A. 835

MELVIN v. MELVIN.

Supreme Court of New Hampshire Hillsborough.
Decided July 2, 1904.

MOTION, by the defendant, filed April 3, 1903, to bring forward and vacate a decree of divorce on the ground of adultery, granted at the September term, 1902. Previous to the return day of the original libel, the plaintiff agreed to pay the defendant $500, and in consideration of such agreement the defendant agreed that she would not appear to defend the divorce proceeding. The defendant suffered a default, but after the divorce was granted the plaintiff refused to pay the agreed sum. If payment had been made this motion would not have been filed. The motion was dismissed by Young, J., and the defendant excepted.

Doyle Lucier, for the motion.

Burnham, Brown, Jones Warren, opposed.

PARSONS, C. J.

Whether sufficient cause appears in any case to require that an action should be brought forward and the judgment vacated, is a question of fact.

Page 603

The evidentiary facts stated are not necessarily inconsistent with a finding that justice did not require such action in this case; consequently the dismissal of the motion presents no error of law. Fulton Pulley Co. v. Company, 71 N.H. 384; Reed v. Prescott, 70 N.H. 88; Clough v. Moore, 63 N.H. 111, 113; Warner Bank v. Clement, 58 N.H. 533.

Exception overruled.

YOUNG, J., did not sit: the others concurred.

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