Brown v. Cato
| Decision Date | 14 June 1960 |
| Citation | 147 Conn. 418,162 A.2d 175 |
| Court | Connecticut Supreme Court |
| Parties | Shirley A. BROWN v. Raymond R. CATO. Supreme Court of Errors of Connecticut |
Lewis E. Caplan, New Haven, with whom was John W. Colleran, New Haven, for appellant (defendant).
Ernest H. Halstedt, Asst. Atty. Gen., with whom were Richard E. Rapuano, West Harford, and, on the brief, Albert L. Coles, Atty. Gen., for appellee (plaintiff).
Before, BALDWIN, C. J., and KING MURPHY, MELLITZ and SHEA, JJ.
The plaintiff attached to her complaint a certificate of the registrar of a hospital in Washington, D. C., stating that the plaintiff was delivered of a child in that hospital on August 9, 1954. The defendant appeared specially and filed a motion to erase the case from the docket on the ground that the plaintiff had failed to file the certificate of a reputable physician as required by § 3208d of the 1955 Cumulative Supplement (now amended by Public Acts 1959, No. 639, § 3 [General Statutes § 52-435]). The motion was denied and the case was tried before a jury, which found the defendant guilty. The court denied the defendant's motion to set aside the verdict. The defendant has appealed, assigning as his sole reason the refusal of the court to erase the case for want of jurisdiction.
A motion to erase the case from the docket will be granted only when it clearly appears on the face of the record that the court is without jurisdiction. Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648, 109 A.2d 260; Reilly v. Antonio Pepe Co., 108 Conn. 436, 443, 143 A. 568. A motion to erase admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. Fairfield Lumber & Supply Co. v. Herman, 139 Conn. 141, 144, 90 A.2d 884. On a motion to erase, the allegations of the complaint should be given the construction most favorable to the plaintiff. See Rutt v. Roche, 138 Conn. 605, 609, 87 A.2d 805; Wildman v. Wildman, 72 Conn. 262, 270, 44 A. 224.
The requirement in bastardy proceedings that a physician's certificate be furnished finds its origin in chapter 6 of the Public Acts of 1915 (as amended, Rev. 1918, § 6006), which contained the following provision: 'Any woman * * * may complain on oath to a * * * commissioner of the superior court * * * against the person she charges with being the father of [her] child, and such * * * commissioner of the superior court shall thereupon, provided the complainant shall have filed with the complaint the certificate of a reputable physicain certifying that after personal examination of the person of the complainant such physician believes that the complainant is pregnant or has been delivered of a child, issue a warrant and cause such person to be brought before some proper authority.' This court construed this language to mean that the certificate must be made and filed as a prerequisite to the issuance of a warrant of arrest. Hellman v. Karp, 93 Conn. 317, 322, 105 A. 678. It also held that it was unnecessary to aver in the complaint that there had been a compliance with the statutory requirement. Id., 93 Conn. 323, 105 A. 679. The statute, it was pointed out, merely required that the certificate be made and filed with the authority who issued the writ and warrant. Ibid. In other words, if the complaint and warrant were silent as to the certificate, it would be assumed that the certificate had been filed.
The statute was amended in 1927 to provide that '[a]ny woman * * *, upon filing with a * * * commissioner of the superior court * * * the certificate of a reputable physician certifying that after personal examination of the person of the complainant such physician believes that the complainant is pregnant or has been delivered of a child, may complain on oath to such * * * commissioner of the superior court * * * and such * * * commissioner * * * shall * * * issue a warrant and cause such person to be brought before some proper authority.' Public Acts 1927, c. 244; Rev. 1930, § 5867. We can assume that this change in the law was made to accomplish some purpose. Kelly v. Dewey, 111 Conn. 281, 291, 149 A. 840. The difference between the language of the 1927 act and that of the 1915 act clearly indicates an intention on the part of the legislature to overcome the construction put on the earlier statute in Hellman v. Karp, supra. See City of Stamford v. Town of Stanford, 107 Conn. 596, 606, 141 A. 891. The elimination of the word 'provided' and the removal of the remainder of the clause relating to the physician's certificate to a place preceding the directive as to the making of the complaint shows unmistakably that the legislature intended to relax the requirement concerning the certificate so that it would no longer constitute an absolute prerequisite to official action by a commissioner of the Superior Court. Further evidence of this intention will be found in Public Acts 1959, No. 639, § 3, § 52-435 of the General...
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