Waterbury v. Town of Darien

8 Conn. 162

• Court: Supreme Court of Connecticut
• Decided: June 15, 1830
• Status: Published

Opinion

Peters, J.

It is provided by statute, that select-men may (at their discretion) lay out such public highways as they shall judge needful within their respective towns. Stat. 268. tit. 48. sect. 11. By the 12th section of the same statute, it is further provided, that when any new highway or common road from town to town, or place to place within the same town, where the select-men of that town neglect or refuse to lay out the same, shall be wanting, any person may apply to the county court for relief. This statute gives the select-men original, and the county court appellate, jurisdiction. But it does not appear, that application was ever made to the select-men to lay out the road in question, or that they neglected or refused to lay out the same. The application to the county court, for want of such an averment, was corara non judice, and therefore void.

But it is said, that the superior court ought to have remanded the cause to the county court, to be proceeded with according to law. Stat. 54, 5. tit. 2. sect. 70. Such a procedure would have been utterly void ; as no court can take cognizance of a cause whereof it has not jurisdiction.

I am, therefore, of opinion, that there is no error in the judgment complained of.

The other Judges were of the same opinion, except Bissell, J. who gave no opinion.

Judgment affirmed.