41 A.2d 109 | Conn. | 1945
The plaintiff brought this action in the ordinary form for summary process upon a parol lease (Practice Book, P. 340) before a justice of the peace, to recover possession of premises in New Haven rented to the defendant and used for a gasoline station. The defendant filed an answer which, in addition to a denial, included a special defense alleging facts indicating that the lease had not expired and substantial expenditures made in reliance thereon, and also a counterclaim which by amendment sought a declaratory judgment and $50,000 damages. The defendant filed a motion, predicated upon 5553 of the General Statutes as amended by 823f of the 1941 Supplement, and accompanied by a bond, to transfer the action to the Superior Court. Upon the transmission of the record, certified by the justice of the peace, to the Superior Court, the plaintiff pleaded in abatement and to the jurisdiction on the ground that such a counterclaim is not admissible in a summary process action and therefore can afford no basis of transfer under the statute. The Superior Court sustained the plea and rendered judgment erasing the case from the docket, from which the defendant has appealed.
The principal question for determination is whether, in an action of summary process brought before a justice of the peace, the defendant may interpose a counterclaim for a declaratory judgment and money damages *530 and thereby secure a transfer of the action to the Superior Court under 823f of the 1941 Supplement. This section, which treats the justice court as a "court," as applied to this case, provides for the transfer of "any action" pending before a justice of the peace to the Superior Court on motion of the defendant when the allegations of the answer claiming judgment in his favor carry the case beyond the jurisdiction of the justice. Whether the broad language of the statute is applicable to an action of summary process depends upon the proper interpretation of it in the light of other pertinent statutory provisions.
The action of summary process is a special statutory proceeding. General Statutes, Cum. Sup. 1939, 1429e; Sup. 1943, 730g. As utilized by the plaintiff in this case, it provides a "remedy to enable landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms. 1 Swift's Dig., s. p. 511." Marsh v. Burhans,
To save inviolate, however, the expeditious possessory procedure of summary process to which we have referred, 5535, entitled "Procedure in certain actions not changed," expressly provides that 5511 "shall not affect . . . proceedings in summary process." These two sections were both originally enacted as a part of the Practice Act of 1879. Public Acts, 1879, Chap. 83. The simplified procedure introduced by this act was intended to apply to all ordinary civil actions. However, it was recognized that in certain special proceedings the practice would not be appropriate. Therefore 5 of the act (now 5511) was followed by 32 (now 5535), specifically stating that 5 should not affect various special proceedings including summary process. Accordingly, our decisions have demonstrated that counterclaims are not permissible in summary process actions. Thus we have held that, where the defendant had equitable grounds to stay summary process proceedings, his proper course was to resort to equity for relief. Winestine v. Rose Cloak Suit Co.,
In the Superior Court, the plea filed by counsel for the plaintiff appearing specially stated: "The plaintiff pleads in abatement and to the jurisdiction of this court because a counterclaim of the character filed in this action is not admissible in a Summary Process *532
proceeding and therefore cannot be made the basis of a transfer to this court. The plaintiff should have brought an independent action for the matters set up in the counterclaim. Wherefore the plaintiff prays judgment that this action be erased from the docket of this court . . . ." As we understand it, the defendant's contention is that either a demurrer or a motion to erase was essential to raise the issue determined by the court's judgment. A demurrer is not a proper form of pleading for challenging the court's jurisdiction. Johnson v. Cooke,
There is no error.
In this opinion the other judges concurred.
