Artman v. Artman

• Decision Date: 03 March 1930
• Citation: 111 Conn. 124,149 A. 246
• Court: Connecticut Supreme Court
• Parties: ARTMAN ET AL. v. ARTMAN.

149 A. 246

111 Conn. 124

ARTMAN ET AL. v. ARTMAN.

Supreme Court of Errors of Connecticut.

March 3, 1930

Appeal from Superior Court, New Haven County; Christopher L. Avery Judge.

Action by Florence J. Artman and another, wife and child, against E Louis Artman, husband and father, for support and other relief, brought to the superior court, where a demurrer to the defendant's plea in abatement and to jurisdiction was sustained, and the issues tried to the court. Judgment for plaintiffs, and defendant appeals.

Error in form of judgment, and judgment set aside, with directions.

Walter F. Foley, of Hartford, for appellant.

Lyman H. Steele, of New Haven, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES HINMAN, and BANKS, JJ.

MALTBIE, J.

This is an action brought by the wife of the defendant and their minor son through her as next friend, described as residents of New York, against the defendant, described as a resident of California, alleging that the defendant has for a long time absented himself from his home and has not supported them, that they are without means and unable to support themselves, but that he has ample means to support them, and seeking damages, an order that the defendant contribute a reasonable and necessary sum for their support, and such further order as to justice and equity may appertain in accordance with the statute in such case provided. The defendant pleaded to the jurisdiction, alleging that the parties were all residents of other states than this, and that the action should be brought in a state where the plaintiffs or the defendant resides. To this plea the plaintiffs demurred because it appeared by the complaint and the officer's return that property of the defendant in this state was attached in the action by garnishee process. The trial court sustained the demurrer. In fact, neither the complaint nor the officer's return showed anything more than a direction to make service upon a garnishee named in it and that the papers were served on it, and did not show that any property was actually attached. The grounds stated in the demurrer were not therefore well taken. However, the judgment file discloses that at the trial of the action it was proven that property of the defendant in the hands of the garnishee was attached, and we are not bound to shut our eyes to this fact. Mechanics' Bank v. Woodward, 74 Conn. 689, 691, 51 A. 1084. It is the fact of jurisdiction, not the way in which it is made to appear, which is the vital thing. Schmidt v. Stolowski, 126 Wis. 55, 61, 105 N.W. 44; In re Newman, 75 Cal. 213, 220, 16 P. 887, 7 Am.St.Rep. 146. Should we find error in the trial court's ruling on the demurrer, so far as this element in the case is concerned, it would have to be remanded for further proceeding, but the final result would be exactly the same as now reached. " It would serve no useful purpose to send the case back to have the erroneous ruling on the point of pleading corrected." Frick v. Hartford Life Ins. Co., 98 Conn. 251, 256, 119 A. 229, 231. We could not therefore find an error of the trial court as regards this feature of the case to be harmful.

In fact, the brief of the defendant discloses, as the plea itself indicates, that his real purpose in filing it was not to attack the jurisdiction of the court upon the ground we have been discussing, but upon the ground that the courts of this state were without jurisdiction to entertain a suit of the nature of the one before us. As regards the plea, two elements would have to be present to give the court jurisdiction; the proper parties must be present, and the court must have cognizance of the class of cases to which the one to be adjudged belongs; at the time of the institution of the action, the third essential to jurisdiction, that the point decided must be in substance and effect within the issues, was not involved, because it would be assumed that the court would not go beyond the issues presented. Case v. Bush, 93 Conn. 550, 552, 106 A. 822; New Haven Sand Blast Co. v. Dreisbach, 104 Conn. 322, 329, 133 A. 99. The plaintiffs submitted to the jurisdiction of the court; and, while the court did not acquire jurisdiction of the person of the defendant, it did by the attachment, as the facts now appear of record, acquire the power to subject that property to any lawful judgment, and to that extent the power to bind the defendant by its judgment. Smith v. Gilbert, 71 Conn. 149, 153, 41 A. 284, 71 Am.St.Rep. 163; Coyne v. Plume, 90 Conn. 293, 297, 97 A. 337. This principle extends to actions by a wife to secure separate maintenance by her husband. Shipley v. Shipley, 187 Iowa, 1295, 175 N.W. 51; Rhoades v. Rhoades, 78 Neb. 495, 11 N.W. 122, 126 Am.St.Rep. 611; Kelley v. Bausman, 98 Wash. 686, 168 P. 181. The superior court is a court of general jurisdiction as regards causes of action, and the amount claimed in this case is within that prescribed by statute for the court. Unless the complaint shows upon its face that, by reason of the nonresidence of the parties, no cause of action is presented upon which the courts of this state may pass judgment, the court has jurisdiction to hear and determine the issues. Russell v. Hooker, 67 Conn. 24, 28, 34 A. 711, 35 L.R.A. 495.

The reference in the prayers for relief to the statute in such case provided meant, no doubt, section 1650 of the General Statutes, which provides that, whenever any person shall become poor and unable to support himself or herself, and shall have certain relatives, including a husband or father able to provide such support, they shall provide it, and, if they neglect to do so, a complaint may be brought to the Superior Court " of the county in which such poor person resides" and the court may thereupon make an order that a reasonable support be provided. We do not attach the significance to the phrase as to the superior court in which the action is to be brought which the defendant claims. In its earliest form the statute provided that the action should be brought in the county where the relative liable for the support resided, and the reason of the change was clearly one of convenience. The preamble of the amending act states that, " whereas in said act it is provided that such relations, respectively, shall relieve such poor persons in such manner as the county court in that county where such sufficient persons dwell, shall assess, and it so happens that such sufficient persons dwell in several counties, by means whereof difficulties arise." Laws of 1715, p. 204; 9 Col.Rec. p. 132. However, it may well be that this statute, ex proprio vigore, could have no extraterritorial effect, so as to impose a liability, where neither the poor person nor any of the relatives liable for support are residents of this state and the neglect to furnish the support occurred elsewhere. Mettler v. Snow, 90 Conn. 690, 98 A. 322, Ann.Cas. 1917C, 578. In certain states the right of a wife abandoned by her husband to bring an action for maintenance is given by statute, among them California, of which the defendant is described as a resident. Murray v. Murray, 115 Cal. 266, 274, 47 P. 37, 37 L.R.A. 626, 56 Am.St.Rep. 97. Without the aid of a statute, a right in equity to make a decree granting such maintenance is very generally, though not universally, recognized in this...