Cook v. Morse

40 Conn. 544 | Conn. | 1873

Park, J.

The principal question raised in this case was virtually decided by this court in the case of Fowler v. Bishop, 82 Conn., 199. The suit in that case was brought to the city court of the city of New Haven, and went by appeal to the Superior Court. In the Superior Court the ad damnum clause was increased by ámendment to an amount beyond the jurisdiction of the city court, but within the original jurisdiction of the Superior Court. In the argument of the cause before this court, the claim was made that the amendment had the effect to oust the Superior Court of its jurisdiction of the case. Chief Justice Hinman, in giving the opinion of the court, states the claim as follows : “ The claim is made that the amendment operated to oust the Superior Court of its jurisdiction acquired by the appeal, because, it is said, the city court would have had no jurisdiction if the demand had originally been seven hundred dollars, and the amendment relates back to the commencement of the suit, and so excludes the idea that the city court could ever have had jurisdiction, and so consequently, in point of law, the case was never before that court, and all the proceedings upon it, including the appeal, were a nullity, and conferred no jurisdiction upon the Superior Court.”

• It will be noticed that the claim of the counsel presented the same question precisely for the consideration of the court that is presented in the case at bar. They insisted that by reason of the amendment the court should consider the case as standing precisely as it would have done if the original declaration in the city court had contained an ad damnum clause of seven hundred dollars. If such had been the fact it would be evident that the two cases would be identical in principle.

Judge Hinman considered the question in this aspect and said: “ If the Superior Court could only obtain jurisdiction of causes by appeal from the city or some inferior court, there would be more plausibility in this argument than we now think there is. But the Superior Court is itself a court of original jurisdiction, and had jurisdiction of the subject matter of the suit, whether the demand was five hundred dollars or any larger sum, and the suit might as well have been brought to that court in the first instance as to have come there by appeal from the city court; and had it been originally brought there by process defectively served, or even had there been no service whatever, and the defendant had chosen to appear and had taken no advantage of the defective service or the total want of it, and the case had proceeded to trial upon its merits, it is clear that the want of service would have been waived, and the jurisdiction of the court over the case would have been ample. Now, suppose it to be admitted, for the sake of the argument merely, that at the time the amendment increasing the amount of damages claimed was made, the defendant was out of court and could have taken advantage of the defect, as it then stood, either by pleading in abatement of any further prosecution of the suit or by refusing to appear and answer further to the case, still as he did not do this, but continued to make his defence to the suit until after a trial upon its merits and a judgment against him, he ought, we think, to be then bound by the judgment. * * * We have no doubt, therefore, that it is now too late for the defendant to take any advantage of this objection, even if we assume it to have been a valid objection wlien the amendment was first made.”

We have quoted thus largely from this opinion because we consider it decisive of the question under consideration.

The appeal in this case was doubtless void; and if the Court of Common Pleas had had jurisdiction of the subject matter of the suit by appeal, and by that only, then the proceedings in that court would unquestionably have been void also. But the court had original and exclusive jurisdiction of the controversy. The case ought to have been brought to that court in the first instance. The declaration was a'proper one for such a suit. It was presented to that court, and entered in its docket as a case to be tried. But no service was made upon the defendant that could compel him to appear and answer to it.

This is the most that can he said of the defect. All the proceedings before the lower court may he treated as surplusage, or regarded as explanatory of the reason why the case appeared in the docket of the higher court without service upon the defendant. This is a plain statement of the case.

Now, in addition to the authority already cited, it was held by this court in the case of Woodruff v. Bacon, 34 Conn., 181, that a defect similar to the present one was cured by the waiver of the defendant, manifested by his appearing and answering to the process. In that case the proceeding had not been signed by proper authority, and consequently no legal service had been made. The case, in effect, was before the court on a naked declaration like the present one.

We are satisfied that this proceeding was not void when it was entered in the docket of the Court of Common Pleas, hut that the defect was of such a nature that it could be waived by the defendant.

The only remaining question in the case is,-was the defect waived ?

We entertain no doubt upon this question. The defendant himself entered the case in the docket of the court as a cause to be tried. He regularly entered his appearance without making any objection on account of the defect of service. He even entered the name of the opposing counsel. Two terms of the court passed, and the cause was regularly continued, and the defendant each term regularly entered his appearance without making complaint.' During this time there was a well-known rule of the court which required that unless picas were entered during the first week of the first term of the court to which actions were brought, it should he understood that the general issue was intended, and that such causes should stand upon that issue, without notice of special matter of defence. No pica was entered in the case, and as a result the defendant, who knew the rule, is to he regarded as having notified the opposing counsel and the court that the plea in the case would be the general issue without notice of any special matter. The general issue has been -regarded as a waiver of all defects like the present one.

We are satisfied that the coarse pursued by the defendant was sufficient to establish a waiver of the defect, and consequently there is no error in the judgment complained of.

In this opinion the other judges concurred; Carpenter and Foster-Js., expressing doubt.