Appeal of Slattery

• Decision Date: 17 December 1915
• Court: Connecticut Supreme Court
• Parties: Appeal of SLATTERY et al.

96 A. 178

90 Conn. 48

Appeal of SLATTERY et al.

Supreme Court of Errors of Connecticut.

Dec. 17, 1915.

Appeal from Superior Court, Fairfield County; Howard J. Curtis, Judge.

In the matter of the intestate estate of Peter T. Currie. From a judgment of the superior court confirming an order and decree of distribution made by the court of probate in favor of Verna Currie Woodin and others, Jane Slattery and others appeal. Affirmed.

The order and decree of the probate court directed that the real and personal estate of the intestate be distributed to Verna Currie Woodin, the daughter of the intestate, as the only heir at law and sole distributee of said estate. The appellants, who are sisters of the intestate, appealed to the superior court, assigning as reasons of appeal that the appellants are the only legal heirs of the deceased, and that the appellee was not his natural nor legitimate child. Appellee filed a general denial, and the appellants in due season claimed the case for a jury trial upon all the issues of fact. On appellee's motion the case was stricken from the jury docket. Judgment was subsequently rendered for the appellee, and the decree of the probate court confirmed.

The assignments of error raise the single question whether in an appeal from an order of distribution, involving the ascertainment of the heirs of an intestate, the appellants were entitled, upon claiming the case in due season, to a jury trial upon the issue of the paternity of the heir and distributee.

Howard W. Taylor, of Danbury, for appellants. Eugene C. Dempsey, of Danbury, for appellees.

BEACH, J. (after stating the facts as above). Since 1826 our statutes have provided for a jury trial in appeals from probate involving the validity of a will, but not in other appeals from probate, thus plainly excluding from the jury docket all appeals from probate except those involving the validity of a will or paper purporting to be such; and by the common consent of the profession this always has been so understood. The appellant, however, claims that if such is the effect of the present statute, chapter 178, Public Acts of 1911, it is unconstitutional, because the statutes in force at the adoption of the Constitution of 1818 provided that:

"All actions that shall be tried before the superior or county courts, when issue is joined on any matter of fact, shall be tried by a jury of twelve men," etc. Revision of 1808, p. 35.

And because they also provided that the superior court should have jurisdiction of "civil causes or actions, between party and party, whether the same do concern the realty, and relate to any matter of inheritance; or whether the same do concern the personalty," etc. Revision of 1808, p. 205.

Appeals from probate are not "actions" or "civil causes or actions between party and party." The accepted meaning of the term "civil action" in this state is very well illustrated by the provision of our Practice Act (Gen. St. 1902, § 607) that:

"There shall be but one form of civil action and the proceedings therein shall be as follows: The first pleading shall be a complaint and shall contain a statement of the facts constituting the plaintiff's cause of action and a demand for the relief to which he supposes himself entitled."

Controversies arising in the probate court in the course of the settlement of estates are not civil actions in that sense. They are not commenced by the service of process, and no complaint or other pleadings are required. On the contrary, the parties to such controversies are not permitted to delay the...