349 A.2d 857 | Conn. Super. Ct. | 1974
These cases together raise a difficult issue not previously decided in Connecticut and will be decided as one with the same decision to apply in each case.
The first case, hereinafter referred to as the collateral attack case, is an action in three counts seeking to set aside the will of the defendant executor's decedent, Patrick McCullough, to set aside certain transfers made by him prior to his death, and to effect a transfer from the beneficiary under the will to the plaintiffs of any property which passed from the decedent to the beneficiary. A plea in abatement was filed on April 17, 1973, claiming that the action was in the nature of a probate appeal but did not constitute a timely and proper appeal from probate because of certain defects in taking the appeal. *251
The second case, hereinafter referred to as the probate appeal, is a probate appeal in the usual form. A plea in abatement was filed in that case on May 23, 1973, claiming abatement because the appeal was not taken within the thirty day time limit and because of the prior pending case between the same parties for the same cause (the collateral attack case).
In each case the plaintiffs filed an answer and special defense to the plea in abatement. The answers admitted the factual allegations but denied the assertions as to legal conclusions. The plaintiffs also filed an amended special defense in each case dated November 2, 1973, in which they alleged in identical language that "if the appeal is defective as to the untimeliness wherein it was appealed to this court, such defect is the result of a mistaken understanding between the parties with regard to the stipulation of the parties in the Probate Court at New Haven on Feb. 5, 1973."
The defendants denied the allegations of those special defenses, and within ten days the plaintiffs claimed the pleas in abatement for a trial by jury. The defendants then moved to strike the pleas in abatement from the jury trial list, thus giving rise to the issue at hand: whether a party is entitled to a jury trial on the factual issues raised in a plea in abatement.
Both parties briefed and argued contrary views as to whether, assuming a jury trial is available ab initio, the issues involved here are ones that under other statutes and rules would properly be entitled to be tried by a jury. In the view this court takes of the matter, it is unnecessary to consider that question.
The plaintiffs in their argument and briefs treat both cases as probate appeals. The court considers *252
the first case, the collateral attack case, to be a "civil action" within the meaning of General Statutes §
The plaintiffs do not seriously claim that they have a constitutional right, state or federal, to a jury trial but rather rely on a statutory right. The court agrees with the defendants' arguments and citations contained in their briefs in that regard. No authority is cited or known to this court to base the right on constitutional grounds.
Very eminent authority backs the plaintiffs' views, however. Judge Zephaniah Swift claims that such a right exists but cites no authority. 1 Swift, Digest, p. 612. An annotation in 170 A.L.R. 383, cases cited therein, and in the Later Case Services, all reflect a split of authority but are of little direct aid because of the different statutes and constitutional history involved in each case.
The respected Connecticut procedural authority, Professor Edward L. Stephenson, appears to claim the right in 1 Conn. Civ. Proc. (2d Ed.) § 108, p. 446. With all due respect the court does not agree.
A logical reading together of General Statutes §
This court holds that it is the ultimate issue or issues of facts decisive of the merits of the case that are triable by a jury and not a preliminary jurisdictional question raised by a plea in abatement.
The law on statutory construction in Connecticut from time immemorial is aptly summed up inDental Commission v. Tru-Fit Plastics, Inc.,
Section
An appeal from probate involving the validity of a will (which is not a civil cause or action; seeSlattery v. Woodin,
The main thrust of §
It is at that point that Professor Stephenson and the plaintiffs part company with the court. Their conclusion is a semantic pulling one's self up by the bootstraps, for the key words are "civil actions" and there is no logical reason for dragging into that simple term a part or piece of a civil action.
Ballentine, Law Dictionary (3d Ed.), defines "action" as "[a] judicial proceeding, either in law or in equity, to obtain relief at the hands of a court." Simply stated, to paraphrase a medicinal television *256
spot, an action is the "whole thing." See particularlyCarbone v. Zoning Board of Appeals,
A plea in abatement is not a "civil action" but a procedural part thereof.
The next pertinent parts of §
First is the docketing procedure in use without challenge in our courts for many years. All of the applicable rules and customs are directed to a trial on the merits, whether to court or jury, or partly to court and partly to jury.
Secondly, all reported cases in Connecticut found by this court concern differing aspects of timing or the finalized state of the pleadings making the case suitable for a hearing on the merits by a jury. Examples are Swanson v. Boschen,
thirdly are sections 192 and 194 of the Practice Book quoted in footnote 2. Section 192 is not as artfully drawn as it conceivably might have been but its meaning is clear: "cases" must have pleadings terminating in an issue or issues of fact decisive of the merits of the case to be placed on the trial list. The language "or issue of fact to the jury" seems either redundant or intended to cover the situation where one issue or more may go to the jury and others to the court.
Professor Stephenson in 1 Conn. Civ. Proc. (2d Ed.) § 108, p. 447, argues that the provision in Practice Book § 194 concerning cases on the short calendar list including "pleas in abatement ... where the issue is closed to the court ... subsumes pleas in abatement where the issue would not be closed to the court." This court assumes that this provision means that this type of matter is to go on the short calendar only when (a) the issues are closed and (b) when they are closed and claimed to the court as opposed to a jury.
Fourthly, in this day of crowded dockets and clamor about court delay, sound judicial and public policy militate against a jury trial on pleas in abatement. The instant case is a good example.
The motion to strike the plea in abatement from the jury trial list is granted in each case.