Quinebaug Bank v. Tarbox

20 Conn. 510

• Court: Supreme Court of Connecticut
• Decided: July 15, 1850
• Status: Published

Opinion

Storrs, J.

There is a plea in abatement to this writ of error, founded on the pendency, when it was instituted, of another writ of error, brought to reverse the judgment sought to be reversed in the present case.

The general principle is well settled, that the pendency of a prior suit between the same parties, for the same thing, will abate a latter suit; because, in such a case, the last is deemed to be unnecessary, and therefore vexatious. But this principle, although general, is not universal. It does not prevail, at least in our courts, where it is made to appear that the last is not vexatious, but brought for good cause ; because the reason of the general rule there fails. Hence, it has often been decided in this state, that, where it appears that the first action would be ineffectual, its pendency shall not abate the second ; because the latter is not in such case deemed vexatious. Gould's Pl. 285. 1 Sw. Dig. 611. Durand v. Car-rington, 1 Root, 355. Ward v. Curtiss, 18 Conn. R. 290. We think that the facts disclosed by the pleadings in this case, bring it within this exception to the general rule. It appears, that after the suing out of the first writ of error, the plaintiff in error discovered, that the court, to reverse the judgment of which it was brought, had not allowed, but materially altered, the bill of exceptions therein set forth; and that, in consequence thereof, the questions of law arising upon that judgment, could not be presented, in such a manner, that they could be fairly raised and determined on that writ; and that the plaintiffs in error thereupon, with intent to avoid delay, and procure a fair and speedy trial of those questions, abandoned and ceased to prosecute that writ of error, and brought the present one. It is obvious, that the first would have been wholly ineffectual ; and nothing appears, which shows any fault in the plaintiffs in error. This writ of error, therefore, is not to be deemed vexatious, and should not be abated.

We proceed to consider the questions arising on it.

2. The first error assigned, is, that, the court to which the complaint in this case was preferred, and by which it was tried, was not legally constituted. It consisted of one of the commissioners of the county, in which the land, which was the subject of the complaint, is situated, and a justice of the peace residing in that county, but in a town other than that in which the land lies, or in which either of the parties resided. The statute of forcible entry and detainer, (Stat. 113, Civil Actions, § 224.) provides, that the complaint under it may be exhibited “to a county commissioner and justice of the peace in the county where the lands, &c. lie,” without any restriction as to the town in which the latter shall reside ; and there is nothing in this statute from which any such restriction can be inferred. It requires, that the complaint shall be tried in the town where the injury complained of was done ; but it does not result from thence, that the justice must reside in that town; and neither of the parties may reside in that town ; which shows, that the statute did not intend to require, that he should reside in the town where one of the parties reside. In the absence of any restriction in this respect, we are not at liberty to impose one. The defendant in error claims, that the general statute respecting venue and jurisdiction, (Civ. Act. § 64. p. 66.) applies to this complaint, and requires that the justice should reside in the town where the land lies. We do not perceive how that statute would require this, if it were applicable here ; but it does not, and was not intended to, apply to cases arising on the statute of forcible entry and detainer, under which the present complaint was brought, and by which the proceedings under it are regulated, but only to cases within the jurisdiction of single justices of the peace. The plea to the jurisdiction was, therefore, properly overruled.

3. The second error assigned, is, that the court below overruled the challenge of the defendant to the jurors, founded on the misconduct of the officer in summoning them. It being indispensable to the pure administration of justice, in trials by jury, that the jurors should be selected with the utmost fairness and integrity, courts have always deemed it a good cause of challenge to them, that the officer returning them was interested, or guilty of any partiality or misconduct, in their selection ; and so careful and jealous are they on this subject, that the objection on this ground goes, not only to the particular jurors returned under the influence of such improper motives or conduct, but extends to the whole panel_ and is a cause of challenge to the array. The rejection of the jurors is not founded on any personal objection to them, but on the misconduct of the officer, which is presumed to have influenced the selection of the whole panel. And the selection, by the officer, of any of the jurors, in consequence of the nomination, appointment, or request of a party, or counsel, is held to constitute such misconduct; because it is the duty of the officer in making a selection, to act on his own unbiassed, independent judgment. These principles are fully settled, by the authorities, and apply to cases like the present, in which the jurors are selected by the officer, as in England, and are not drawn from the jury boxes, in the mode prescribed for designating jurors for the superior and county courts. (Stat. Civ. Act. § 224. p. 113. § 107. p. 79.) Trials per pais, 166. 169. 3 Blk. Com. 359.

We are, however, clearly of opinion, that the charge of misconduct in the officer, upon which the challenge was made, in this case, was not supported by the proof. For the purpose of ascertaining who were legally qualified to act as jurors, and without any previous communication with the counsel for the Quinebaug Bank, (the defendants,) he asked the latter to inform him who were stockholders in that institution ; who, thereupon, after expressly disclaiming any wish to influence him in the discharge of his duty, named to him several persons who were not such stockholders, adding an expression of his opinion, that they were independent and judicious men ; some of whom so named, were summoned as jurors ; but the officer was not biassed, by any representation made by the counsel. Without discussing minutely the testimony, it is sufficient to say, that there was no gratuitous or improper interference, on the part of counsel; no attempt by him to influence the officer, but, on the contrary, an express disclaimer of any such intention ; and not even a wish expressed that any particular person should be selected ; and that the officer sought no improper, illegitimate, or even unnecessary information, was governed by no improper motive, and was not influenced, in any degree, by the representation made to him. There is no ground for the imputation of any blame on either the counsel or the officer, or for the belief that any possible injury could arise to the plaintiff, by what occurred between them. There was no nomination of jurors, by a party, in any sense; much less in that in which that term is used in the authorities cited. The challenge of the jurors, on this ground, was therefore properly disallowed.

4. The next error assigned, is, that the plaintiff in error, in the court below, was denied the right of challenging, peremptorily, two jurors. We think that this decision was erroneous. A complaint under the statute of forcible entry and detainer, is now treated as a mere civil remedy, 1 Sw. Dig. 651. Dutton v. Tracy, 4 Conn. R. 79. Phelps v. Baldwin, 17 Conn. R. 209. Raymond v. Bell, 18 Conn. R. 81. Bell v. Raymond, Id. 91. If we were to look only at the provision in the § 110. of the act for the regulation of civil actions, which gives the right to each party in civil actions of peremptory challenge, as it now stands in the revised statutes, its connexion with the preceding part of that section, which relates only to causes pending in the superior and county courts, might suggest a doubt whether it was intended to apply to causes pending in any other than those courts, notwithstanding it embraces, in terms, “ every civil action but for the purpose of giving a construction to a body of laws, which, like our present “ revised statutes,” is composed, both of the laws which were actually revised, and also of those which, without being revised, were only incorporated with them, it is not only proper, but justice requires, that we look at them as they were originally passed, and at the circumstances and manner in which they have assumed their present form. The history and progress of laws furnish a legitimate and most useful clew to their construction. The provision which has been mentioned, was first passed, by the legislature, at its session in 1848, as an original and independent law, and provided, in a most general form, “that in the trial of any civil action to the jury, both parties shall have the right to challenge two jurors peremptorily.” (Stat. 1848. ch. 55. p. 47.) This embraced any such action, in whatever court it might be pending. Instead of placing it among the revised statutes as a distinct provision, it was incorporated with them, pursuant to the act relating to the revised statutes, passed at the same session, providing for the incorporation of the acts passed at that session, with the then recently revised laws, (Stat. 1848. ch. 80. p. 71.) by uniting it with the revised laws respecting the designation by lot of jurors, in each cause pending in the superior and county courts, where more than twelve are in attendance. It is certain, that its import or extent was not intended to be affected, because it was only to be incorporated with the revised laws. Its position in the present code, was a matter merely of convenience and orderly arrangement. It should therefore retain its original construction, by which it plainly applied to causes pending in the peculiar court whose judgment is now under consideration. And there is much more reason for allowing such right of challenge in such special tribunals, than in the superior or county courts; because in the latter, the jurors are taken by lot, whereas in the others, they are selected by the returning officer, where there is greater danger of having packed juries. The former are most emphatically within the spirit of the act in question. The judgment complained of should be reversed, for error on this point.

Hence it is unnecessary to consider the question involved in the remaining assignment of errors.

We advise that the judgment below be reversed.

In this opinion the other judges concurred, except Waite, J., who gave no opinion, being a stockholder in the Quinebaug Bank.

Judgment reversed.