50 A.2d 81 | Conn. | 1946
In this replevin action brought to the Superior Court for New London County the plaintiff sought recovery of an automobile, the value of which she alleged in the complaint to be $800, and claimed, as an alternative to possession of it, $1000 damages for its taking and also $100 damages for its *278
detention. The Court of Common Pleas has exclusive jurisdiction of all civil actions for legal relief wherein "the matter in demand" exceeds $100 but does not exceed $2500. General Statutes, Sup. 1941, 808f. The matter in demand in this action was within those limitations; Wooley v. Williams,
The test for determining whether a judgment or order is final lies in the answer to the question whether the decision concludes the rights of the parties so that further proceedings cannot affect them. Banca Commerciale Italiana Trust Co. v. Westchester Artistic Works,
The defendant, however, argues that the words of 5485 which authorize a removal "either before or after the filing of a plea in abatement" do not permit application of the statute to an action where the defendant has filed a motion to erase for want of jurisdiction before the order of removal is made, as in this case. Section 5506 of the General Statutes provides: "If the defendant shall desire to plead to the jurisdiction or in abatement, or both, he shall take such exceptions in one plea, substantially in the following form: The defendant pleads in abatement, because (Here state all the particular exceptions to the jurisdiction, and causes of abatement . . . .)" It apparently was the intent of the statute that objections to jurisdiction should be raised by plea in abatement. It has, however, been a quite general practice to move to erase a case from the docket, instead of pleading in abatement, where want of jurisdiction appears on the record; we have *280
recognized that such motions are better procedure in such cases than pleas in abatement; Michelin v. MacDonald,
Section 5485, in referring to any civil action "brought to the wrong court" necessarily includes an action brought to a court without jurisdiction to determine it. When the legislature in its grant of power to remove a case used the words "either before or after the filing of a plea in abatement," it presumably had in mind the provisions of 5506. However that may be, the effect of 5485 is to extend the jurisdiction of the court over a case which it would not have power to determine so far as to authorize it to order a removal. Wooley v. Williams, supra. There is nothing in the nature of the proceeding *281
which, even if the quoted words were omitted, would prevent the court from ordering a removal after a plea in abatement had been filed but before it had been acted upon; and that is also true as regards a motion to erase the case for want of jurisdiction. The mere filing of the motion does not destroy the jurisdiction given the court by the statute. If that filing would prevent the removal, it would lie in the power of a party in many instances to defeat the purpose of the statute by raising the issue of jurisdiction in that way, rather than by plea; and the legislature could not have intended such a result. We cannot read the quoted words as limiting the right of removal to cases where a plea is filed, or interpolate into the statute a restriction that a case cannot be removed merely because a motion to erase on the ground of lack of jurisdiction has been filed but has not been acted upon. The trial court properly ordered the removal of the action to the Court of Common Pleas, and as the rights of the parties can be fully determined in that court, the order of removal was not a final judgment permitting an appeal. There is nothing in the opinion in Fowler v. Bishop,
The motion to erase the appeal is granted.
In this opinion the other judges concurred.