108 A. 540 | Conn. | 1919
The plaintiff is called city treasurer in some parts of the record, and town treasurer in others, as though the terms were alternative and interchangeable. Nothing amounting to a serious misdescription is apparent, but the matter invites comment lest we otherwise seem to sanction a loose practice quite capable of working serious mischief if persisted in.
The plea in abatement was conclusively disposed of on issues of fact, and one of its grounds was that the plaintiff, as treasurer, had not authorized the bringing of this action. This was determined against the defendants, and no foundation has been laid for questioning the correctness of the ruling.
It is urged as error that the plaintiff's official standing as treasurer was not established. It need not have been until questioned, and it does not appear that the challenge came until after the default. It was then too late. the default necessarily recognized and settled the plaintiff's status and his right to sue. For the same reason, the attacks upon the validity of the bond are without effect as the record discloses them. They went essentially to the merits of the action, and were available only as matters of defense. But the default conclusively admitted the cause of action as alleged, and precluded a defense. Lamphear v. Buckingham,
Several assignments of error rest upon alleged rulings in the admission or rejection of testimony. The finding wholly ignores the subject, and nothing in the record warrants us in assuming that any such rulings were made. *247
Error is also predicated upon the court's denial of a so-called motion for a nonsuit on the hearing in damages. This mere statement would dispose of the claim, even if the silence of the record upon the matter permitted us to assume that a motion so foreign to the procedure involved was injected into it.
The one remaining ground of error is based upon the overruling of the demurrer. Here the substance of the defendants' claim is that no right to sue upon the bond accrued until the plaintiff, or other proper authority, had actually furnished support to the woman because of Litvin's default. This is not so. The bond itself, to which we must look for the strict measure of the accountability of the obligors, contains no such qualification. They were answerable upon it when their refusal to meet their undertaking was complete. The liability was neither contingent upon an actual prior disbursement of money for the woman's support, nor limited in any sense to the amount of such payments made before the commencement of the action. They are accountable to the full measure of their default, and it was not a prerequisite of the treasurer's right to a recovery of this amount, that support had already been furnished by the authorities charged with that duty under § 6418 of the General Statutes.
In so far as we may assume from the record that these same claims were urged upon the hearing as bearing upon the amount which the plaintiff was entitled to recover, they are disposed of by what has been said of the ruling upon the demurrer.
There is no error.
In this opinion the other judges concurred.