Sherwood v. Stevenson

25 Conn. 431

• Court: Supreme Court of Connecticut
• Decided: February 15, 1857
• Status: Published

Opinion

Storrs, C. J.

This is a motion in error, brought to revise the judgment of the superior court, affirming the judgment of the city court of the city of Bridgeport, rendered in an action of scire facias, in favor of the plaintiff therein, (the defendant in error,) against the defendant, (the plaintiff in error,) to recover of the defendant the amount of a debt due from her to a debtor of the plaintiff; the declaration setting forth an attachment of such debt in the hands of the defendant, under our statute of foreign attachment, in a suit brought to said city court by the plaintiff against said debtor, the recovery of a judgment in that suit, and the requisite proceedings on the execution issued on that judgment, in order to render the defendant in said action of scire facias, liable to pay to the plaintiff the amount of said debt.

It being a rule, in this and the superior court, that on a writ of error, or motion in error, no matters of error or defects in the proceedings of the court below, relied on as a ground of reversal, shall be heard or considered by the court, excepting those which shall be specially assigned, (18 Conn., 572,) we shall, in revising the judgment of the superior court which is complained of, confine ourselves to a consideration only of the errors which were specially assigned in the writ of error brought to that court from the judgment of the city court.

The error first assigned is that the declaration in said action of scire facias is insufficient, in that it does not appear thereby that the city court had jurisdiction of said action, or that said cause of action arose within said city.

The first ground, on which the plaintiff in error attempts to sustain this claim, is that, by the charter of the city of Bridgeport, it is provided that its city court shall have jurisdiction only in causes where one of the parties resides, and the cause of action arose, within its limits; and that some of the facts constituting the cause of action on this scire facias, against the defendant therein, especially the demand of and refusal by her to pay the debt for which it was sought to render her liable as garnishee, took place, not in said city but in Fairfield, where she resided. This claim involves the question, whether on an action properly brought to said city court, against a defendant residing out of the limits of the city, a debt due to him by a person also residing out of those limits, can be attached and appropriated to the payment of the judgment recovered in such action, under our law of foreign attachment; for, as it can be so appropriated only by a proceeding by scire facias, returnable to the same city court, by the provisions of that law that remedy must fail in that case, if the court has not jurisdiction of that proceeding. As the jurisdiction of the other city courts in the state is also subject to the limitation which has been mentioned, this question becomes one of much importance.

We think that the claim of the defendant, on this point, is not sustainable.

That limitation of the jurisdiction of 'the city court was intended to apply only to original, primary actions brought to that court. If a proceeding by scire facias, to enforce one of its judgments, were such an action, there would be much weight in the objection that some of the essential facts which constitute the cause of action upon it, took place out of the limits of the city. That proceeding, however, is not one of that character. It is founded, indeed, upon an original and primary action and a judgment rendered on it, and is itself properly termed an action, and treated as such, sometimes being considered as an original action, and at others as an action in the nature of an original action ; but, although it is thus treated, it is really only a proceeding auxiliary to, and instituted by statute for the enforcement and collection of, the judgment rendered in the original action on which it is founded, by appropriating to the satisfaction of that judgment a particular species of the defendant’s property, which could not be reached by the ordinary process of execution, but which justice and the general policy of our law require should be made liable to his debts, equally with any other of his property.

It being a proceeding of this description, the jurisdiction of the city court over it, in the present case, depends, in our judgment, rather on the effect to be given to the statutes providing for the collection and enforcement of judgments, and particularly on that part of the statute of foreign attachment by which the proceedings in garnishment are for that purpose, instituted, than on the provisions of the charter of the city conferring jurisdiction on the city court, which, we can not but think, were designed rather to give to that court the power of determining the rights of the parties in the primary and original action to be brought to that court, than the particular mode by which its judgments should be enforced. The general statutes, providing for the enforcement and collection of the judgments of courts, were sufficient and ample as to the latter object; they are general and broad in their language, and are not limited to claims prosecuted in any particular court, and were, in our opinion, intended to be applicable as well to debts sued in the city court, and the judgments rendered upon them, as to those prosecuted and recovered in any other court.

If the means of collecting debts, provided by our law of foreign attachment, are not available to the fullest extent to suitors in our city courts, the benefits contemplated by the establishment of those courts would be essentially impaired. We can discover no reason why these courts, in this respect, should be more restricted in their powers or jurisdiction than others. The jurisdiction claimed for the city court by the defendant in error in this case, has uniformly been exercised by these courts without objection or question, ever since their first institution, the jurisdiction of all being given in substantially the same terms. Although, as to the construction of pleadings, it is a rule that nothing shall be intended by presumption to be within the jurisdiction of an inferior court, in the absence of averments showing such jurisdiction, and that therefore all the facts necessary to give jurisdiction to such a court must be expressly stated, there is no similar rule applicable to the construction of statutes, on which a question of the existence of jurisdiction arises; but, in their construction, the ordinary rule prevails, as in statutes on other subjects, that the intention of the legislature is to be ascertained by the language and reason of the law, in connection with its policy and design. On this ground we are, therefore, of opinion that the cause of action is to be deemed to have arisen within the city of Bridgeport, notwithstanding the proceedings of the officer against the garnishee (the plaintiff in error) without its limits.

It is also insisted, under the first assignment of errors, that it does not appear by the declaration on the scire facias, that the city court had jurisdiction of the cause of action set forth in said writ of scire facias, because it is not alleged therein that the note, on which the original action was brought in the city court, in which the plaintiff in error was factorized, was executed within the limits of the city of Bridgeport, which was confessedly necessary in order to give jurisdiction of that action to the city court. It is to be observed, that the objection here is not that, for the want of such allegation, it-did not appear, as it should have done, in the declaration in the original action in that court, that the note was executed in the city, and therefore that that court had not jurisdiction of that action. No such error is here assigned. If it had been assigned for error that the declaration on the scire facias was insufficient, for the reason that it does not thereby appear that there was such jurisdiction of the original action, we are unable to see how that objection could have been answered; for, if the city court had not jurisdiction of that action, its judgment in it would have been void and would have laid no foundation for an action of scire facias against the garnishee, and the declaration in the scire facias would have been insufficient, because it would have disclosed no cause of action against him.

The plaintiff in error would have prevailed on such an objection, simply for the insufficiency of the declaration in scire facias, on its merits, in not setting forth a fact which was indispensable to the creation of a liability on his part on such scire facias, viz., the prior recovery, in the city court, of a valid judgment. The declaration in the action of scire facias was demurrable, not because the city court had not jurisdiction in that proceeding, to determine whether a sufficient cause of action was disclosed therein, but because no such cause of action was set forth, for the want of an averment that that court had jurisdiction in the original action.

But the objection made on this assignment of errors is not that that court had not jurisdiction of such original action, or that the declaration in the action of scire facias is insufficient, but that that court had no jurisdiction of the action of scire facias; that is to say, had no right to determine whether the plaintiff therein had any cause of action against the defendant. The right to determine that question would presuppose, and, indeed, constitute jurisdiction. That that court had the right to determine that question, and therefore had jurisdiction of the action of scire facias, we have no doubt, and, indeed, results from what has been said on the preceding point. We can not think that the judgment in the action of scire facias was an absolute nullity, as it would be if, as is insisted, the court had no jurisdiction of that action. The declaration was fatally defective for the reasons before stated, and should have been adjudged so on demurrer; or on a writ of error the judgment might have been reversed for that defect: it was, however, not void, but only voidable, and was good until so reversed. But it is scarcely necessary to say that a court is not deprived or ousted of its jurisdiction in a suit, by the circumstance that the declaration does not disclose a good cause of action, and is therefore demurrable. The objection we are considering is, therefore, untenable.

The question on the second assignment of errors is, whether the city court properly overruled the plea to its jurisdiction. It appears by the record in this case, that together with that plea, and at the same time, a plea in abatement, properly so termed, that the scire facias was not taken out from, and signed by, the clerk of said court, as the law required, was pleaded by the defendant below; which first plea was demurred to, and the latter traversed, by the plaintiff. The first plea was overruled, and the facts alleged in t.he other found to be untrue, and the defendant was ordered to answer over, which was done, and the case was subsequently disposed of on a plea to its merits.

Without considering the sufficiency of the plea to the jurisdiction, if it had been pleaded by itself, and supposing that, in that case, it would be unexceptionable, it is quite clear that, between that plea and the plea in abatement, there was a manifest repugnancy, as the latter plea impliedly admitted the jurisdiction of the court, which the former denied. According to the established rules as to the mode and order of pleading, which disallow of repugnant pleas, and forbid a plea, by way of defense, which denies facts admitted by the defendant in his previous pleas, it was incompetent for the defendant, either to plead the two pleas to the jurisdiction and in abatement together, or to interpose his plea to the jurisdiction after he had pleaded that plea in abatement; although it would have been competent for him first to plead to the jurisdiction, and that being sustained, afterwards to plead the matter which he set up in abatement. A plea to the jurisdiction, although popularly termed a plea in abatement, and sometimes, for convenience, treated of among such pleas, and though the effect of sustaining either is substantially the same, is not, technically and properly, a plea of that character. By the order of pleading, a plea to the jurisdiction is the first plea to be interposed, and therefore it must precede a plea in abatement, because the latter impliedly admits jurisdiction, which the defendant is therefore afterwards precluded from denying. Hence the defendant below, if he had intended to rely upon a want of jurisdiction in the city court, should have pleaded only to the jurisdiction, and if that plea was overruled, then interposed his plea in abatement, instead of pleading, in connection with the first, the latter plea, by which the fact of jurisdiction denied in the first was admitted. There is an obvious incongruity in trying at the same time an issue or issues which both admit and deny that the court has jurisdiction of the case. The question of jurisdiction should be first determined. The effect of the plea in abatement in this case, as it admitted the jurisdiction of the court, was, in our opinion, to supersede or waive the matters set up in the plea to the jurisdiction; and the latter plea was therefore properly disregarded or overruled; and the authorities on this subject decisively sustain this conclusion.

If it is conceded, as is supposed in the third assignment of errors, that the denial of the motion to erase the case from the docket would, if erroneous, be a proper ground for the reversal of the judgment of the city court, it results from what we have said under the second assignment of errors, that it did not appear from the writ of scire facias or the declaration therein, that the court had not jurisdiction of that action or proceeding, and therefore that the motion to erase it was properly, denied.

The error last assigned is, that it appears from the record in this case that, when the judgment in question was rendered, the city court was not legally constituted, because there was then present, besides the recorder of the city, only one alderman, instead of two as the charter requires. It was clearly unnecessary for the record to state the names or the number of the judges who were present when the judgment was rendered, and it would be free from any objection if that part of it had been omitted. But if, which is very questionable, that statement is to be considered as properly a part of the record, we think that the objection founded on it is obviated by adopting the reasonable intendment — against which nothing appears — that it was not possible, as we can well conceive it might not have been, to supply another person who could sit as judge; in which case we are of the opinion that the court might legally be holden by the recorder and one alderman only. But, if another judge could have been supplied, we think further that the exception on account of his absence was one which could be waived by the parties ; and that their appearance before those judges who were present, and submitting to their action in the case, without objection, constituted such a waiver. The objection is not to the jurisdiction of the city court, which confessedly had cognizance of the action, but only to the manner in which it was organized in regard to the persons composing it. We think that the case, therefore, falls within the reason of those cases where it is decided that the parties may waive the absence of a part of a jury, or board of auditors, rather than of those where there was an entire want of jurisdiction in the court or tribunal, and in which it was held that it could not be conferred or waived by the consent or agreement of the parties.

The judgment complained of is therefore affirmed.

In this opinion the other judges, Hinman and Ellsworth, concurred.

Judgment affirmed.