Doolittle v. Clark

47 Conn. 316 | Conn. | 1879

Granger, J.

The plaintiffs in this case are copartners, the firm consisting of Tilton E. Doolittle, Henry Stoddard and William L. Bennett. The action was brought in the firm name of Doolittle, Stoddard & Bennett, to the Court of Common Pleas for New Haven County. At the first term the defendants appeared and severally pleaded in abatement to the plaintiffs’ writ, on the ground that it was signed by Mr. Bennett, a member of the firm, who was a commissioner of the Superior Court for New Haven County, and that the writ was not otherwise signed. The plaintiffs demurred to this plea, and the only question in the case is, whether a plaintiff has the legal right to sign and issue a writ in his own case.

It would not seem to require any extended argument to show that this ought not to be allowed under the laws of this state. It is said by the plaintiffs that the signing of a writ under our statute is a mere ministerial act, and that there is therefore no valid objection to a plaintiff’s signing his own writ. We can not assent to this proposition. If it is within the letter it clearly is not within the spirit of our statute, nor in harmony with the principles of the common law, nor witli our ideas of common justice. It would be putting altogether too much power into the hands of one man, to be exercised for his own individual benefit, for if a plaintiff can sign his own writ in an ordinary action arising upon contract, he may sign it in an action arising from a tort, and without responsibility other than his own bond, may attach all the estate of the defendant or attach his body and commit him to prison. Such a practice would be a reproach upon the law, and we trust will never be sanctioned in this commonwealth. The usage of the profession, and the common understanding of all intelligent citizens is, and always has been, antagonistic to any such construction of our statute relating to the signing and issuing of writs in civil proceedings. What necessity would there be for the appointment of justices of the peace or other officers to sign process, if every plaintiff may sign his own ?

But it is said that there is authority for a party’s signing his own writ, and the case of Windham v. Hampton, 1 Root, 175, is cited as sustaining this proposition. The case is very brief. It appears that a plea in abatement was filed—1st, on the ground that the writ was signed by Zephaniah Swift, Esq., a justice of the peaco, who was an inhabitant of the town of Windham and one of the plaintiffs; 2d, that it was directed!; to and was served by James Flint as an indifferent person,, also an inhabitant of Windham and one of the plaintiffs;: and 3d, that said Flint had not made oath to the service. The-plea was held insufficient, and the court says:—“As to the-first two exceptions, the signing and serving of the writ are-merely ministerial acts, and if any irregularity is practiced advantage may be taken of it by pleading it. Besides, if members of corporations were wholly excluded from acts of this nature, there would be a failure of justice in many cases. As to the third exception, the law doth not require it, but if necessary it may be done after the writ is returned! by leave of the court.” This is the whole case. The action being upon an insimul computassent in favor of one town against another, the writ was unquestionably a simple summons. The magistrate was an inhabitant of the plaintiff town and as such was a nominal party, but not the real party plaintiff. He had a nominal interest in the event of the suit, and such an interest as would have disqualified him from acting judicially in hearing the case, but not such an interest, according to the opinion of the court, as to disqualify him from performing the simple ministerial act of signing a writ in favor of the town. And the court seem to lay stress upon the fact that unless such acts were held to be valid there might be a failure of justice. Very likely there was something in the facts of the case which led to this conclusion. But we do not think the court intended to hold that the real plaintiff in a suit could sign his own writ and take a bond for cost where the statute requires a bond to be taken, for we think it must follow that if a party has a right to sign his own writ, he has the right to do all acts necessary to make it a valid writ and a proper one for the case, whether it be an attachment or summons. And if this case goes to the extent of holding that a party plaintiff may do this, we think it is not good law. Certainly a different practical construction has for many years been given to our statute on the subject. The act relating to mesne process in civil actions (Gen. Statutes, 396,) has stood upon our statute books substantially as it now appears for over a century. It is unnecessary to say that it is an act of importance, and that it was passed for a wise purpose. It is apparent that the legislature considered the subject of signing and issuing process in civil actions as one of consequence to the citizen. It is one of the processes of law by which a man may be deprived of his liberty and his property, and hence it is carefully guarded. It is not to be issued by citizens indiscriminately nor by any one except an officer of the state. The writ in order to be “ due process of law,” must be signed by the governor, lieutenant-governor, a senator, justice of the peace, commissioner of the Superior Court, or a judge or clerk of the court to which it is returnable. One object of the statute clearly is to throw some safeguard around the rights of a defendant, and that he might presume at least that the officers named in the act would not sign a writ for a groundless cause, nor grant one against his person or property to gratify the inclination of a litigious plaintiff. Anqther purpose which the statute has in view is that the writ shall be an instrument of dignity, bearing the impress of the power and authority of the state, and be respected and obeyed by the citizen against whom it is directed, its purpose being to compel his attendanee before a proper tribunal, that justice may be done. But if each man wlio happens to be a justice of the peace, or commissioner of the Superior Court, or senator, may sign and issue a writ in his own name, there is no safeguard thrown around the process and no dignity attached to it.

We cannot think that the framers of the statute ever contemplated that any such interpretation could be put upon it as is claimed by the plaintiffs.

There is manifest error in the judgment of the Court of Common Pleas in overruling the plea in abatement, and the judgment is reversed.

In this opinion the other judges concurred; except Loomis, J., who dissented.