Vincent v. McNamara, 70 Conn. 332

Vincent v. McNamara

70 Conn. 332 | Conn. | 1898

Baldwin, J.

The appellee filed a plea in abatement with *337the clerk of the Supreme Court of Errors for New Haven, county on the Friday preceding the first day of the January term of the court to be held at New Haven, in the third judicial district, to which term the appeal had been taken. The appellant moved that the plea be stricken from the files, because it was not filed with the clerk of the court for Fairfield county. This motion was denied, and the point of practice thus decided is of such importance that the court deem it proper to state the reasons which led to that result, particularly as in another appeal from Fairfield county at the same term, a similar plea was entertained, against the objection of the appellant, which had been filed with the clerk of the court for Fairfield county.

The secretary of the State was the sole clerk of this court from its original institution in 1784, until 1819. During this period it sat only at the capital of the State. In 1819 a law was passed that one term should be held annually in each county, and that “ the clerks of the Superior Courts in the several counties, shall be clerks of the Supreme Court of Errors in their respective comities.” Stat. Rev. of 1821, p. 137, § 2. In 1866, “ to facilitate the trial of causes before the Supreme Court of Errors,” the State was divided into four judicial districts, each containing two counties, and in each of which the court was to hold two terms a year, and it was provided that the court “ shall have and exercise the same powers, authority, and jurisdiction in each judicial district, which it has hitherto had and exercised in the counties of which such district is constituted.” This statute also declared that “ the clerks of the Superior Court in the several counties shall be clerks of the Supreme Court of Errors for their respective counties in the judicial districts to which such counties belong.” Public Acts of 1866, p. 43, Chap. 75. In 1889 the third judicial district was reconstituted so as to be “ composed of the counties of New Haven and Fairfield,” the court to sit twice a year at New Haven and twice a year at Bridgeport, and it was further enacted that “ the clerk of the Superior Court for New Haven county shall keep a docket upon which all appeals to be heard by the Supreme Court *338of Errors in Hew Haven shall be entered in the following order: first, appeals from Fairfield county; second, appeals from Hew Haven county. The clerk of the Superior Court for Fairfield county shall keep a docket upon which all appeals to he heard by the Supreme Court of Errors in Bridgeport shall be entered in the following order: first, appeals from Hew Haven county; second, appeals from Fairfield county.” Public Acts of 1889, p. 77, Chap. 141.

The Supreme Court of Errors is a court whose jurisdiction is co-extensive with the State. Each of its eight clerks (that is, the clerk for each county) is, as such, a State officer, and the court could require his attendance, in case of necessity, at any of its sessions, whether held within or without the particular county in which its files and records are regularly in his keeping.

It being made by law the duty of the clerk for Hew Haven county to prepare the entire docket for those terms of the court for the third judicial district which are held at Hew Haven, it has not been our custom to require the attendance at those terms of the clerk for Fairfield county. The clerk for Hew Haven county is, for the purposes of that term, the clerk of the court for the entire district.

Causes may he heard, at such a term, transferred by consent from counties belonging to other districts. It is the duty of the clerk in attendance to note such orders as the court may make in any causes, upon its docket, without regard to the county from which they come. It is also his duty to communicate to the clerk of this court in each county, whatever judgments may be rendered in causes originating there; for it is there that the final record of the cause is completed and preserved. The clerk who has charge of the docket of a district, at any term, is placed in that position to facilitate the disposition of the causes entered. He is the only clerk of the court with whom to file original papers presented during the term for the consideration of this court.

By a recent statute, it is required that pleas in abatement, which heretofore have been filed on the first day of the term, *339shall he filed on or before the Friday preceding such day. Public Acts of 1897, p. 895, § 30. Under the previous practice, such pleas were filed with the clerk of the court in and for the district within which the cause was pending for consideration. His functions as clerk of the court for the district commence before the opening of the term, for the docket must be prepared in advance. If, before it is made up, a plea in abatement or other original paper is filed in any of the causes .to be entered, that fact should be noted on the docket as printed, and the paper immediately printed also. It is therefore proper to file it with him, although the cause may come up from a county in which he is not acting as the clerk of the court; for it is thus brought soonest to his notice. But it does not follow that to file it with the clerk of the court for such other coirnty would be improper. Each of these clerks is equally a clerk of this court, and each has certain clerical duties to perform with reference to the cause. One prepares it for entry upon the docket; the other makes the entry and retains charge of it until it becomes the subject of a final adjudication, or is continued to another term.

As soon as an appeal in ordinary course is perfected, the cause passes under the control of this court, and is pending here. Huntington v. McMahon, 48 Conn. 174, 195. Until the opening of the term to which the appeal is taken, any original papers, entitled in this court, may be filed either with the clerk for the county in which the judgment appealed from was rendered, or with the clerk for the county in which the term is to be held. Each is a clerk of the court having cognizance of the cause; one acting as the permanent custodian of its files and records for the county whence the appeal is brought, and the other as the temporary custodian of such of those files and records as relate to this appeal and come into his hands in his capacity as, for the time being, the acting clerk for the district, to facilitate the preparations for the hearing, or the proceedings incident to the hearing itself.

The plea in abatement in the case at bar set up that the appeal was not taken within the ten days allowed by statute *340after the rendition of the final judgment. This contention rests upon the ground that an entry by order of court, that a demurrer to the complaint is sustained, is such a judgment ; notwithstanding the record shows a judgment in form, based upon such a ruling, which was rendered a month later, and upon which the appeal is predicated.

The General Rules of Practice provide that in all actions the judgment shall be formally written out, under an appropriate caption entitled as of the day on which is entered, and signed by the clerk or judge as the case may be. 58 Conn. 586, 587. The date of its entry is often subsequent to that of the decision from which it results. Such was the case in the present instance, and the fact that it was the losing party on whose motion the entry was formally made, did not convert it into a consent decree. The defendant having neglected to prepare the judgment file, or to ask the clerk to do so, the plaintiff was under the necessity of making the motion, in order to found the appeal, which he desired to take. He was not bound to avail himself of his statutory right to plead over, if he preferred to stand on his original complaint. O'Donnell v. Sargent & Co., 69 Conn. 476.

For these reasons, the plea in abatement is insufficient and was overruled.

We now come to the consideration of the appeal upon its merits. The single question presented is whether, if a man whose goods are maliciously attached upon a writ against a third party, replevies them from the officer and subsequently recovers judgment against him in the replevin suit, that judgment necessarily bars any subsequent action against the original plaintiff who wrongfully directed such attachment, for damages resulting from that act.

In case of a wrongful attachment, replevin, under our statutes, may be brought either against the officer or the plaintiff in the attachment suit, or both, to recover the goods, together with the damages from their wrongful detention. General Statutes, p. 308, § § 1323, 1325,1327.

The plaintiff in this case elected to sue the officer alone, and presumably recovered from him full damages for the *341wrongful detention of the goods replevied. But such detention was not the only wrong of which he could complain. The original taking by attachment was, on the part of the present defendant, a malicious abuse of legal process, designed to drive a competitor in business from the field, and achieving a temporary success. Against the officer no malice or improper motive is charged. He could therefore be held to answer in damages only to the extent required to compensate the plaintiff in replevin for the actual pecuniary loss, necessarily involved. Oviatt v. Pond, 29 Conn. 479; Morey v. Hoyt, 62 id. 542. The plaintiff in the attachment, on the other hand, may be liable for consequential, and perhaps for vindictive damages. Watson v. Sutherland, 5 Wall. 74, 79; Merrills v. Tariff M'f'g Co., 10 Conn. 384. The causes of action were different and distinct.

Nor does it appear from the complaint that the plaintiff has collected whatever damages may have been awarded in the replevin suit. The officer and the party under whose directions he acted were joint trespassers. Their liability was joint and several, and an unsatisfied judgment' against one for the damages resulting from the trespass, would be no bar to a later suit for the same damages against the other. Sheldon v. Kibbe, 3 Conn. 214; Lovejoy v. Murray, 3 Wall. 1. The complaint was therefore sufficient on its face, and the demurrer should not have been sustained.

There is error in the judgment appealed from.

In this opinion the other judges concurred.