149 A. 252 | Conn. | 1930
The defendant pleads in abatement to the writ of replevin because the recognizance entered into upon the issuance of the writ was (1) before a commissioner of the Superior Court for New Haven County who was not the authority who signed the writ, and (2) was not signed by the obligors in the presence of at least one witness other than the authority taking the recognizance, nor in the presence of the commissioner of the Superior Court taking the recognizance.
Section 6094 of the General Statutes provides: "No writ of replevin shall be issued . . . until some person, known to the authority signing the writ, . . . has entered into a recognizance before him, with at least *113
one sufficient surety, . . . and said recognizance shall be signed by the obligors in the presence of at least one witness other than the authority taking the recognizance." This statute required the recognizance to be entered into before the authority who signed the writ and also required that it be signed by the obligors in the presence of this authority. The court has found that neither of these requirements of the statute was observed. These were serious irregularities, but neither destroyed the jurisdiction of the court. The requirement of the recognizance was for the sole benefit of the defendant. Irregularities such as these, when properly pleaded by him, would have abated the action unless he had waived his right to interpose this plea. Douglass
v. Unmack,
Section 6097 of the General Statutes provides two methods by which the defendant in a replevin action may obtain a new bond in case he is not satisfied with the recognizance taken by the authority issuing the writ. One method provides a remedy after the service and prior to the return day of the writ by citing the plaintiff to appear before a judge of the Superior Court, Court of Common Pleas, or a county commissioner *114 or justice of the peace residing in the county where the replevin was effected, to respond to a motion for a new bond to be ordered at the discretion of such authority. Another is by the order of the court in which the action of replevin is pending for a new replevin bond whenever it appears to the court that the replevin bond attached to the writ is insufficient.
The defendant availed himself of the first of these methods. His application, while expressing his knowledge of the irregularity of the recognizance taken by the authority issuing the writ, questioned its sufficiency and sought the protection afforded by a new bond. Between the choice of remedies, the plea in abatement after the case was returned to court, which must have ended the action for the time, or the order by the statutory authority prior to the return day of a new bond, he chose the latter. His election of the remedy provided prior to the return day was an expression of his willingness to put up with the irregularity in the recognizance and of his acceptance of the remedy by which he could secure a sufficient bond. The choice once made there was no turning back; he must abide by it. Ives v. Fitch,
In view of our conclusion that the defendant has waived his right to maintain his plea in abatement, there is no occasion to consider the other grounds of appeal.
There is error, the judgment is set aside and the cause remanded to be proceeded with according to law.
In this opinion the other judges concurred.