185 A. 70 | Conn. | 1936
This action was returned to court on the first Tuesday of June, 1926. The defendants filed answers, the last on January 3d 1927. The record shows no further action in the case until the annual call of the docket in 1931 when it was discontinued. On May 14th, 1934, a motion to restore the case was filed. In it certain reasons for failure to prosecute the action were given and it was stated that, previous to the call of the docket in 1931 counsel for the plaintiff mailed a letter to the clerk of the court requesting that the case be retained on the docket, but the clerk had no record of its receipt; that counsel had no record of the receipt of any notice that the case was discontinued at the annual call; that previous to the annual call in 1932 counsel again wrote the clerk asking to have the case continued on the docket; and that only when arrangements were being made for the trial of the case in the spring of 1934 was the fact that it had been discontinued discovered by them. On the same day as the motion to restore the case to the docket, a further motion to set aside the order of discontinuance and for a new trial under the provisions of 5701 of the General Statutes was filed, stating substantially the same facts as in the motion to restore. Both motions were denied by the trial court in May, 1934. But a docket entry appears under date of June 22d 1934: "Judgment opened, vacated and set aside and case restored to the docket," and on the same day judgment was formally rendered reciting that the parties had appeared and been heard on the motion to restore the case to the docket and that the motion was granted. On June 7th, 1935, one of the defendants moved to *379 erase the case from the docket on the ground that in granting the motion to restore, the trial court acted beyond its jurisdiction. The trial court thereupon rendered judgment that the order of June 22d 1934, restoring the case to the docket be set aside and the case erased and from that judgment the plaintiff has appealed.
We are not here concerned with the motion for relief under 5701 of the General Statutes, because the denial of that motion stands unquestioned upon the record and the trial court acted affirmatively only upon the motion to restore the case to the docket. The order of the trial court in 1931 discontinuing the case was a final judgment. Jarvis v. Martin,
In the instant case the defendant's counsel filed the *381
motion to erase the case from the docket as "its attorneys for this motion," thus making what was in effect a special appearance to prosecute that motion, with its attack upon the jurisdiction of the court. This was not such an appearance as would waive the lack of jurisdiction of the court over its person; and neither the printed record nor the file discloses any action on the defendant's part after the rendition of the original judgment which would constitute such an appearance as would waive that lack. As the matters relied on to show the lack of jurisdiction were all of record and it does not appear that the plaintiff claimed to the trial court that there were any relevant facts outside the record which it should consider, the court was not in error in determining the issues upon the motion. Michelin v. MacDonald,
There is no error.
In this opinion the other judges concurred.