Smith v. Jewell

| Conn. | Mar 9, 1899

Andrews, C. J.

The demurrer was the appropriate means to present the defect in the complaint claimed by the defendants. If it appears on the face of the complaint that the action is prematurely brought, it is fatal on demurrer. Gould, PL Chap. V, §§187, 138; Southey v. Dowling, 70 Conn. 153" court="Conn." date_filed="1898-01-05" href="https://app.midpage.ai/document/southey-v-dowling-6584101?utm_source=webapp" opinion_id="6584101">70 Conn. 153, 157.

We think there is no error in the judgment of the Court of Common Pleas upon the demurrer. The complaint does not show any final judgment in favor of the plaintiffs. A scire facias does not lie except on a judgment or some matter of record in the nature of a judgment. In the case of Smyth v. Ripley, 32 Conn. 156" court="Conn." date_filed="1864-09-15" href="https://app.midpage.ai/document/smyth-v-ripley-6578236?utm_source=webapp" opinion_id="6578236">32 Conn. 156, 157, Judge Dutton said, speaking of a writ of scire facias: It is not an original process; “it is more like a writ of execution, a bill of revivor, and other similar proceedings, the object of which is to carry into effect some judgment previously rendered.” In Sherwood v. Stevenson, 25 Conn. 431" court="Conn." date_filed="1857-02-15" href="https://app.midpage.ai/document/sherwood-v-stevenson-6577119?utm_source=webapp" opinion_id="6577119">25 Conn. 431, 438, Chief Justice Stores said, speaking also of a writ of scire facias: “ It is really only a proceeding auxiliary to, and instituted by statute for tbe enforcement and collection of, the judgment rendered in the original action on which it is founded.” In 1 Swift’s Digest (top page), 596, it is said: “ The writ of scire facias may issue from judgments, recognizances and bail bonds. When founded on judgments, or recognizances, which being solemnly acknowledged and entered of record in a court of justice, are considered as judgments, it is deemed a judicial writ, and is intended to carry such judgments into effect.” So, in 6 Bac. Abr. p. 102, it is stated: “ A scire facias is deemed a judicial writ, and is founded on some matter of record, as judgments, recognizances, and letters patent, on which it lies to enforce the execution of them, or to vacate or set them aside.” And at p. 108: “Recognizances and statutes are considered as judgments, being obligations solemnly acknowledged, and entered of record, and the scire facias on those is the judicial -writ, and the proper remedy the conusee hath.” See also 19 Yin. Abr. p. 280, and 14 Pet. Abr. p. 370.

The practice in this State has uniformly been according to the rule so stated. _ Every case of scire facias upon judicial proceedings reported in our reports, shows that there has been a judgment of some proper court upon which it has been brought. As said above, scire facias must be founded on some judgment record. A record in judicial proceedings always includes a judgment. It is a precise history of the suit from its commencement to its termination, including the conclusion of law therein, drawn up by the proper officer for the purpose of perpetuating the exact state of facts. Davidson v. Murphy, 13 Conn. 213" court="Conn." date_filed="1839-07-15" href="https://app.midpage.ai/document/davidson-v-murphy-6575238?utm_source=webapp" opinion_id="6575238">13 Conn. 213, 219. A judgment is the termination and sentence of the law pronounced by the court upon the matter contained in the records. 3 Black. Com. 395. And unless there is a judgment there is nothing on which a scire facias can be brought. The record before this Court shows that the injunction suit is still pending in the Court of Common Pleas, and has never gone into final judgment.

The plaintiffs argue that because there has been contempt-proceedings and a sentence thereon against the present defendants that they should pay a fine and costs, that in some way that sentence operates as a judgment in their favor on which they may bring scire faeias. This court is not able to perceive any ground on which that argument can rest. That sentence was in favor of the State, to vindicate the dignity of the court. The plaintiffs would hardly claim that they and the State are identical, or that a judgment in favor of the State was also a judgment in their favor. So far as the matters set forth in the injunction complaint, or so far as the penalty named in the ex parte order of injunction, are concerned, that judgment gave the plaintiffs nothing. That judgment was not upon any of the matters upon which this scire faeias is supposed to be based.

The order of temporary injunction may be regarded as an interlocutory judgment of the Court of Common Pleas, for the judge who granted it was acting for the court and in the exercise of the judicial powers confided to the court. But to enforce such a judgment, while the suit upon which it was rendered is still pending, the writ of scire facias is not an appropriate remedy. The plaintiffs should have applied to the court in the original action. Interlocutory judgments are subject to modification or revocation by the court which rendered them, at any time during the subsequent progress of the cause. Applications to enforce them afford an opportunity, and often an occasion, for action of that nature. Wherever it is reasonably practicable the rights of parties to a judicial proceeding, respecting all matters growing out of it, should be settled in that proceeding, and mul- ■ tiplicity of suits avoided.

There is, therefore, no occasion to determine whether, had the main action resulted in a judgment for the defendants and this scire facias then been brought, the plaintiffs could have recovered. If so, it would have been because a final judgment had been rendered not inconsistent with the interloeu- ' fcory one.

The plaintiffs further argue that they are entitled to have and maintain the present writ, upon the authority of certain words found in the opinion of this court in Rogers Mfg. Co. v. Rogers, 38 Conn. 121" court="Conn." date_filed="1871-02-15" href="https://app.midpage.ai/document/william-rogers-manufacturing-co-v-rogers-6579261?utm_source=webapp" opinion_id="6579261">38 Conn. 121, 123, 124. That was a case where the defendant had been sentenced to pay a fine for disobeying a temporary injunction against the use of certain trademarks and a trade name; and the Superior Court reserved for the advice of this court, among other questions, this one; whether the fine may be legally divided and apportioned between the injured petitioners and the State ? In answer to this question, and as a reason why the fine should not be so divided, the judge who gave the opinion said: “ In addition to fine and imprisonment, the penalty may also be enforced by scire facias in favor of the petitioner, in cases where an act is prohibited under a penalty to be paid to him, for the fine and imprisonment are merely punitive, inflicted, as other punishments are inflicted, for the public good, in order to secure obedience to lawful authority.”

The statement of the case then under consideration does not show that in the order of temporary injunction any penalty at all had been named. So that the language of the judge above quoted was used generally and by way of argument, and not as a conclusion from the facts of that case. This very language indicates, and the next paragraph of the opinion makes it certain, that the judge, when speaking of a seire facias, had in mind a case in which there had been a final hearing and a judgment, not a case where “ the rights of the parties are still in litigation and undecided.” This case is not an authority in favor of the plaintiffs.

So, too, the language cited from 2 Swift’s Digest, top page 281, is of the same nature. The author there is speaking of a disobedience of a perpetual, not a temporary, injunction, and of some penalty therein named, where he mentions that a scire facias may be brought to recover the penalty. It is hardly to be supposed that the second volume of Swift’s Digest is designedly intended to be an authority against a rule of law it has stated in the first volume.

There is’ no error.

In this opinion the other judges concurred.