46 A.2d 343 | Conn. | 1946
The defendant in this writ of error, hereinafter called the lessor, brought an action of summary process against the plaintiff in this writ, the lessee, before a justice of the peace in New Haven, where the land involved was located. The lessee made a motion to transfer the case to the City Court of New Haven; the justice denied it; and ultimately judgment was rendered for the lessor. The lessee then brought this writ of error, alleging, among other grounds for relief, the denial of the motion to transfer the case. The trial court, in sustaining the writ, placed its decision solely upon the ground that the justice erred in that ruling.
Section 5307 of the General Statutes provides: "In *615 any civil action returnable before any justice of the peace, either party to the action may, previous to trial, make written motion that such action be removed to any town, borough or city court having civil jurisdiction in the town, city or borough where such action is returnable"; upon the filing of the motion, the justice is required to file with the clerk or judge of the municipal court all the original files, and the action is then to be entered on the docket of the court and to be proceeded with as though it had been originally brought there; and the statute concludes: "The provisions of this section shall not affect those of any special act relating to the jurisdiction or procedure of any town, city or borough court." The charter of the city of New Haven gives to the City Court of New Haven "exclusive jurisdiction of all civil cases now cognizable by justices of the peace for the town of New Haven, except actions of summary process and bastardy proceedings"; 14 Spec. Laws 660; and it further provides that "in all civil actions pending before any justice of the peace residing in the town of New Haven, except actions of summary process and bastardy proceedings, any party thereto may, at any time, make application to the clerk of said city court of New Haven for the transfer of said action to the docket of said city court," and that, upon following the procedure directed, the case shall be entered upon the docket of the court, which "shall proceed in relation to said case as though it had been originally made returnable to said court." 15 Spec. Laws 137.
The lessor contends that, as the statute in its concluding clause provides that its provisions shall not affect those of any special act relating to the jurisdiction or procedure of any municipal court, it is not applicable to this case and the city charter governs the situation. The lessee, on the other hand, claims that, as *616
regards the transfer of cases from justices of the peace, it has been superseded by the provisions of the Municipal Courts Act, Chapter 281b of the General Statutes, first enacted in 1939 and amended in 1941. General Statutes, Cum. Sup. 1939, 1361e et seq.; Sup. 1941, 735f et seq. In so far as matters of jurisdiction or procedure are included in Chapter 281b, it was clearly intended to supersede any different provisions in municipal charters covering the same matter. Lake Garda Co., Inc. v. LeWitt,
There is no conflict between the provisions of Chapter 281b of the General Statutes and those of any special laws concerning the transfer of actions brought to justices of the peace. Chapter 281b would not, then, have the effect of repealing those provisions unless it was the intent of the legislature that it should completely cover the field of the jurisdiction of municipal courts. Hutchison v. Hartford,
As this conclusion necessitates that the case be remanded to the Court of Common Pleas, the lessor asks us to consider the other errors assigned in the writ of error. It is obvious that, if we do not do this, the protracted litigation between these parties may be further prolonged, contrary to the purpose of the summary process statute, by the necessity of obtaining rulings by the trial court upon the other assignments of error in the writ, with a possible further appeal to this court. All the errors assigned present *619
questions of law, which can as well be determined in this court as by the trial court; and even though it erred in sustaining the writ upon one ground, that decision might stand if other claimed errors were well founded. See Casner v. Resnik,
The bill of exceptions contains no statement of the facts found proven by the justice, as it might have; Noll v. Moran,
In response to a motion for oyer, a copy of the lease between the parties was filed in court and became a part of the record. Morehouse v. Employers' Liability Assurance Corporation,
The allegations in the complaint of an abortive attempt to evict the lessee by summary process previous to the present proceedings served to disclose the history of the controversy between the parties and, as will later appear, was not so foreign to the issues in the case that the justice should have granted the motion to expunge. State v. Erickson,
The only substantial question arises under the lessee's demurrer to the complaint, based on the claimed insufficiency of the notice alleged to have been given in meeting the requirements of 1429e of the 1939 Cumulative Supplement to the General Statutes, governing the notice necessary as a foundation for an action of summary process. The complaint stated that the notice was given on July 12, 1944, that thereafter by writ dated August 1, 1944, the lessor brought an action to recover possession of the premises, and that this action was dismissed on jurisdictional grounds on March 20, 1945. The present proceeding was brought by writ dated April 2, 1945. The statute provides as follows: When a lease has terminated by lapse of time or by reason of any express stipulation in it or for nonpayment of rent under 5022 of the General Statutes and the lessor "shall desire to obtain possession" of the property "at the termination of the lease, or at any subsequent time," lie shall give notice to the lessee to quit possession at least ten days or, if the lease is terminated for nonpayment of rent, at least five days before the termination, "or before the time specified in the notice for the lessee to quit possession," with further provisions as to the service of the notice upon the person in charge of the premises in case the lessee is a nonresident or, if no person is in charge of the premises, by registered mail or advertisement; the notice must be substantially in a form which is given and which includes a statement of a *622
day on which the lessee must quit possession; and if the lessee shall neglect or refuse to surrender the premises at the expiration of the ten days or five days, as the case may be, any commissioner of the Superior Court "may issue a writ, summons and complaint" in summary process. The effect of the notice is to fix a day occupancy beyond which will subject the lessee to such proceedings. The notice is a condition precedent to the bringing of the action and we meant no more than that when, in Webb v. Ambler, supra, 552, we said that "The notice to quit under the statute is the basis for the inauguration of an action at law." There is nothing in the statute or the purpose of the notice which makes it a part of any particular action of summary process. The statute contains no limitation of time after the effective day of the notice within which the action may be brought and the only general statute of limitations which would seem applicable would be that one which requires an entry on land to be made within fifteen years after the right to act accrues. General Statutes, 6004. Unless there are intervening circumstances changing the rights of the parties, a delay in bringing the action, at least if it is not unreasonable, will not prevent its maintenance. The first action brought to enforce the lessor's right to the possession of the property failed because it was transferred to the Superior Court and that court was held to have no jurisdiction of it. Atlantic Refining Co. v. O'Keefe, supra, 531. The action from the judgment in which this writ of error was brought was begun promptly thereafter. There had been no waiver of the notice, or estoppel to take advantage of it, which would prevent the lessor from maintaining the action. Barlow v. Hoffman,
There is error, the judgment is set aside and the case is remanded with direction to enter judgment affirming the judgment of the justice of the peace.
In this opinion the other judges concur.