Cahill v. Cahill

• Decision Date: 03 March 1904
• Citation: 76 Conn. 542,57 A. 284
• Court: Connecticut Supreme Court
• Parties: CAHILL et al. v. CAHILL et al.

57 A. 284

76 Conn. 542

CAHILL et al.

v. CAHILL et al.

Supreme Court of Errors of Connecticut.

March 3, 1904.

Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.

Action by James A. Cahill and another against Mary Cahill and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

Verrenice Munger, for appellants. William L. Bennett and Frederick W. Holden, for appellees.

HALL, J. The principal question in this case is whether the trial court erred in sustaining the defendants' plea in abatement, alleging that "at the commencement of this action there was, and now is, another action pending in the superior court in New Haven county between the same parties as the parties to this action, and for the same cause as is set forth in said complaint in this action." The plaintiffs demurred to this plea upon the ground that it did not allege that the pending case was for the same cause and for the same relief as the present action. Before the demurrer was decided, it was stipulated that all questions that might arise in consequence of the plea in abatement might be raised and decided at the same time by the court upon the demurrer to the plea in abatement, and that the record in the first action might be used by the court for the purpose of deciding whether the present action should abate by reason of the pendency of said first suit. The trial court overruled the demurrer, and found the allegations of the plea in abatement proved and true.

The records of both cases are before us for the purposes of this appeal. The parties in both actions are the same; the plaintiffs being the two sons of Richard Cahill, who died testate in June, 1901, and of Julia Cahill, his first wife, who died intestate in 1885; and the two defendants being the second wife and widow of Richard Cahill, and the administrator of Richard Cahill. The same land is described in each complaint, and both actions are returnable to the same court—the first, in January, 1902, and the second, the present action, in September, 1903.

The complaint in the first action, which has been before this court (75 Conn. 522, 54 Atl. 201, 732, 60 L. R. A. 706), follows form 115 of the practice book, entitled "Ejectment and for Mesne Profits," and alleges that on the 2d of July, 1901, the plaintiffs owned and possessed a lot of land (describing it), and that the defendants on said day wrongfully entered on said land and dispossessed the plaintiffs, and still keep them out of possession, depriving them of the rents and profits, and that the rents and profits amount to $150 a year. Judgment for the possession of said premises and $600 damages is claimed. The only answer filed is a general denial. In the present action it is alleged that in 1893 the corporation of Wallace & Sons, which had long before that date acquired title to the land in question, became insolvent, and that in March, 1894, all the real estate, the record title to which stood in the name of Wallace & Sons, including the land in question, was by certain transfers and certain orders of court conveyed to Robert M. Thompson, Henry E. Jacobs, and Robert T. Paine, as trustees for the creditors of Wallace & Sons; that afterwards said Thompson, Jacobs, and Paine, under various orders of court, sold said land to divers persons, but did not sell the land in question, and that "the apparent and record legal title now appears to be in them as such trustees"; that the corporation of Wallace & Sons has been dissolved, and said trustees discharged; and that neither said Wallace & Sons, or any one claiming under them, nor said trustees, or any one claiming under or from them, have or claim to have any right, title, or interest of any kind whatsoever in or to the premises in question. The complaint further alleges that Julia Cahill, the first wife of Richard Cahill, and mother of the plaintiffs, entered into possession of said land in question in 1869, and continued in possession thereof until her death, in 1885, at which date she was the lawful owner thereof; that the plaintiffs, as her heirs, now claim to be the owners of said land, and that the defendants claim to own it, or to have some interest in it, through Richard Cahill; and that no other persons than the plaintiffs and defendants claim any right, title, or interest of any kind in said premises. The plaintiffs claim in this second action (1) that the defendants shall state the nature and extent of the estate or interest which they claim, and the sources through which they claim such estate or interest, in said premises; (2) an adjudication of the claims as between the plaintiffs and defendants, and the determination of their several rights; (3) an adjudication quieting and settling the title to said property, and that the title shall be adjudged to be vested in the plaintiffs. As to the title of the plaintiffs, and the fact that they are not in possession, but have been dispossessed by the defendants, no different allegations are made by the plaintiffs in the second action than those which they made and still make in the first, nor is it suggested as a reason for bringing the second suit that there has been any change in possession since the first suit was brought.

The controversy is one between the plaintiffs and the defendants only, and is concerning the title to the described lot; the plaintiffs claiming that it was owned by their mother, Julia Cahill, and now...