45 Conn. 92 | Conn. | 1877
Lead Opinion
It does not expressly appear on the record, what answer the plaintiff made to the motion of the defendant to erase the cause from the docket. But it does appear that the court overruled the motion, which must have been done on the ground, either that it was insufficient in the law, or that it came too late to be entertained after the cause had been tried on its merits and gone into judgment. If the latter ground was the basis of the ruling, the entry upon the record ought to have been that the court refused to entertain the motion on the ground that it came too late. We think that this must have been the ground of the ruling, notwithstanding the imperfection of the record, and as such we will consider it. Obviously, the Superior Court had no jurisdiction of the case if the allegations of the motion are true, and they must be taken as true, for there is no finding to the contrary, and the court, in overruling the motion, must have proceeded on the ground that they were true. Indeed, there is no count in the declaration of sufficient amount to confer jurisdiction upon the Superior Court in cases where the parties reside within the jurisdiction of another court, as they did in this case. Dennison v. Dennison, 16 Conn., 34; Nichols v. Hastings, 35 Conn., 546; Hoey v. Hoey, 36 Conn., 386. Furthermore, the general counts allege no indebtedness to the deceased in her lifetime, nor to the plaintiff as administrator, and therefore can bring no help to the special counts which are for an indebtedness to the plaintiff as administrator.
It follows, therefore, that no court but the District Court for Litchfield County or the Court of Common Pleas for the county of Hartford, had jurisdiction of the subject-matter of this controversy; and this appears upon the face of the declaration. It is manifest, therefore, that a writ of error would lie to reverse the judgment, if no motion had been made to erase the cause from the docket. But a motion in error takes the place of a writ of error, and will lie wherever a writ of error will lie. If then the judgment could not stand the test of a writ of error, surely it cannot stand the test of this motion in error. Why then should not the judgment bo reversed? It is clearly a nullity, and when the
There is manifest error in the judgment complained of. ,
Dissenting Opinion
(dissenting). It seems to me that the only question which properly arises upon this record is whether the court en’ed in refusing to erase the case from the docket upon a motion filed after final judgment had been rendered. Motions to erase should, as I regard the law, be made before judgment. This was made after judgment, and I think it was therefore properly overruled. The attempt to bring up any error in the record of the judgment in this way seems to me to be irregular, and a practice not to be sanctioned by this court. The court should have first opened the judgment, which it had full power to do, having been rendered at the same term, but it was not asked to do this. The defendant’s remedy, as the case stood, was I think by writ of error or motion in error, and not by a motion to erase.
But if the present motion in error is to be regarded as reaching back of the motion to erase, and as presenting regularly for our consideration the other errors assigned, then I •agree with the majority of the court that the judgment was erroneous.
