Town of Southington v. Clark

13 Conn. 370 | Conn. | 1840

Storks, J.

The plaintiffs in error claim, that the county court erred, in appointing a committee to enquire into the convenience and necessity of the road in question, and in accepting their report, [prior to finding the fact, that the eelect-men of the town had neglected or refused to lay out such road.

It is undoubtedly necessary, in an application to the county court to lay out a road, that such neglect or refusal should be averred, as it is indispensable in order to give the court jurisdiction. And it js, of course, necessary that such averment should be proved, and found by the court to be true, Waterbury & al. v. Darien, 8 Conn. Rep. 162. Treat v. Middletown, 8 Conn. Rep. 243.

But there is no provision of the statute on the subject, nor is there, in our opinion, any principle of law, which requires, that such neglect or refusal should be found as a preliminary fact, or indeed in any one stage of the proceedings on the application rather than another. It is sufficient if this fact» necessary to enable the court to entertain jurisdiction of the application, is found at anytime in the progress of the proceeding prior to rendering the final judgment; and it has been done in the present case; The averment of a neglect or refusal being found true, the jurisdiction of the court appears on the record, which is all that is required; and it would seem to be unimportant in what particular order this or the other enquiries in the case are made.

To require the court to make this as a preliminary enquiry, before taking any other steps, would not be in analogy to the practice which prevails in other cases, where the writ or petition embraces matters necessary, not only to confer jurisdiction, but to entitle the plaintiff or petitioner to relief. And indeed, we know of no case where facts upon which the jurisdiction of the court depends are found as preliminary to further proceedings, excepting where a plea in abatement or demurrer, presenting the question, is interposed, which would of course render it necessary. In a bill in equity, to the county court, the value of the matter or thing in demand must be alleged, in order to give the court jurisdiction. But on an enquiry by the court into the truth of the facts stated in such bill, no particular order is observed or necessary in introducing proof of the facts upon which its jurisdiction depends, nor in which those facts appear in the finding of the court. Or, if a committee is appointed to enquire into and report the facts to the court, it has never been deemed necessary that the court should, prior to the appointment of the committee, ascertain the value of the matter in demand; nor has such ever been the practice ; but that fact, with the other material facts alleged, are referred to the committee, in the first instance; and when the report is made, the facts found by the committee (no sufficient objection to the report being made) are, including that fact, found true, by the court, and the decree thereupon rendered. So, in an action brought to a city court, where, in order to give jurisdiction, it is necessary to aver and prove, that the cause of action arose within the limits of the city, that fact is, with the others in the case, submitted to and found by the jury, and judgment given thereon. We see no substantial reason why the circumstance, that it is for the court, and not the committee, to find the neglect or refusal of the select-men, should render it necessary to ascertain that fact, in the first instance, rather than in a subsequent stage of the proceedings.

If a plea in abatement had been interposed, in the present case, alleging that there had been no such neglect or refusal, it would have been competent and proper for the court to make it a preliminary enquiry. That course, however, was not taken. At the term to which the application was brought, it appears, that no objections were made to the application, and that thereupon the committee were appointed to enquire into the convenience and necessity of the highw'ay prayed for. After the report of the committee had been made, and damages had been re-assessed, in pursuance of the statute, to the individuals who complained of the assessment, the court found the facts stated in the petition to be true, accepted the report of the committee, and made the necessary orders in the case. We think, that the defendants, by not objecting to the appointment of the committee, on the ground that there had been no neglect or refusal by the select-men, must be deemed to have admitted the jurisdiction of the court, so far, at least, as to warrant the appointment of such committee. Indeed, the statute, after directing how the petition shall be brought and served, provides, that “ thereupon, if no objections are offered against such application, or if the objections are adjudged insufficient, the court, before whom such application shall be pending, shall appoint a committee to enquire into the convenience and necessity of said road.” Stat. tit. 49. s. 12. p. 340. (ed. 1838.) It may be added, that the course pursued in this case corresponds with the practice which has uniformly prevailed.

It has been urged, that, as it did not appear, when the committee was appointed, that the court had jurisdiction of the proceeding, by reason of it not having been found that there had been a neglect or refusal by the select-men to lay out the road, the appointment of such committee was void; and no one was bound to, or could legally, appear before them. The validity of this objection depends upon the question, whether it was necessary that such neglect or refusal should be first enquired into. If it was competent, as in our opinion it was, for the court to enquire into that fact after the committee had reported, there is no weight in the objection; for all who are interested are presumed to know the law, and may act accordingly.

We think, therefore, that the judgment below is correct, and ought to be affirmed.

In this opinion the other Judges concurred.

Judgment affirmed.