Dinsmore & a. v. Auburn, 26 N.H. 356

Eastman, J. "Whenever the selectmen of any town shall neglect or refuse to lay out a highway within the limits of their town, upon petition presented therefor, a petition for the- same may be presented to the court of common pleas, or to the clerk' in vacation, and if no sufficient objection shall be made to appear, after due notice of its presentation, it will be referred to the road commissioners of the county. Rev. Stat. chap. 50. It is, however,' essential to the jurisdiction of the common pleas, that a petition shall first be presented to the selectmen of the town.

The laying out of highways in any particular town is expressly confined by statute to the selectmen. Sumner's Petition, 14 N. H. Rep. 268. And until a petition is presented to them and they refuse or neglect to lay out the road, the common pleas can have no jurisdiction of the application. Even if the petition to the common pleas be for a highway in two or more towns, and the commissioners make a report laying out a road only in one town, th.e report will be rejected, on the ground that the common pleas had no jurisdiction in the case. >Sumner's Petition, before cited.

This petition is for a highway in one town alone. Upon its face it shows that the common pleas had no jurisdiction of the subject matter. ' It is clearly bad in' form, if not in substance, in not setting forth the fact of an application to the selectmen of the town, and a neglect or refusal by them to lay out the road ; and if the attention of the common pleas had been called to the subject on the presentation of the petition, they would undoubtedly have rejected it, or given leave to amend, with an order for a new notice; which would be tantamount to its rejection. .

Although the fact is not stated in the case, yet we infer that there was evidence before the common pleas, that previous application had been made to the selectmen, since, were it otherwise, the amendment would not have been granted. But can the petition be now amended, after report made by the commissioners, so that the report may be-accepted and the road established ? If we can regard the defect as one of form merely, the exception comes too late, and the amendment may be made.

Objections to the form of the petition, and to the legality of notice, must be made before the order of reference to the road commissioners, or they will be considered waived. Rules of Court, 84. And after a report has been returned upon a reference of a petition, every proper presumption is to be made in favor of the regularity of the prior proceedings. Stevens v. Goffstown, 1 Foster’s Rep. 454.

It is true this exception was taken prior to the hearing before the road commissioners, and the town is not therefore liable to the charge of having lain by till after the expense of the hearing was incurred, and then starting the objection. But that was not in season to comply with the rule, if the defect be one of form only. But we cannot regard this amendment as one that can be made at this time. The petition and report as they stand, both show, that the court have no jurisdiction over the subject matter. The defect is one of substance, and the amendment is vital to the existence of the proceedings.

Without it the court have no jurisdiction of the case, and the action of the commissioners has been upon a petition which of itself showed that the court had no power to refer it to them, and that they had no power to act upon it. An amendment after the report, would be to give the court jurisdiction of a case of which they had no jurisdiction except by force of the amendment itself. The amendment cannot thus be made to relate back, and give the court jurisdiction. The court, in fact, have obtained no jurisdiction of anything to amend by, and, not having jurisdiction, the whole proceedings must be void. Smith v.

Knowlton, 11 N. H. Rep. 191; Hoitt v. Molony, 2 N. H. Rep. 332; Walpole v. Marlow, 2 N. H. Rep. 385. The amendment must therefore be denied and the Report rejected.