Chasnoff v. Porto
| Decision Date | 04 August 1953 |
| Court | Connecticut Supreme Court |
| Parties | CHASNOFF v. PORTO, Deputy Sheriff, et al. Supreme Court of Errors of Connecticut |
Nelson Harris, New Haven, for appellant (plaintiff).
James F. Rosen, New Haven, with whom, on the brief, were John R. Thim and John M. Murphy, New Haven, for appellees (named defendant et al.).
Harrison D. Schofield, Hartford, with whom, on the brief, was Reubin Kaminsky, Hartford, appeared for appellees (defendant Joseloff et al.).
Charles V. James, Norwich, for appellee (defendant Burke).
Before BROWN, C. J., and BALDWIN, INGLIS, CORNELL * and MELLITZ *, JJ.
This case presents one aspect of the situation resulting from the efforts of the defendant Nierwakowski to collect a judgment obtained in an action against the plaintiff Chasnoff and another for negligent operation of a motor vehicle. Another aspect was dealt with in Gilman v. Joseloff, 135 Conn. 595, 67 A.2d 551, where Gilman and Chasnoff, the defendants in the original action, unsuccessfully sought to restrain Nierwakowski and his attorney from levying body executions to collect the judgment. The present action, brought by Chasnoff alone, seeks damages for abuse of process and false imprisonment arising out of allegedly wrongful acts connected with the issuance of an execution and its levy on the body of Chasnoff.
The finding of the trial court, which is not subject to correction, may be summarized as follows: On July 8, 1947, the defendant Nierwakowski recovered a judgment, based on negligence, in the Superior Court in New London County against Abraham Gilman and Milton Chasnoff. The defendant Joseloff appeared as attorney for Nierwakowski. On April 16, 1948, an execution which had been issued by the defendant Burke, assistant clerk of the Superior Court in New London County, was returned partly satisfied. On April 19, 1948, Burke issued an alias execution containing a provision for a body attachment. On May 1, 1948, the alias execution was served on Gilman by attaching his body and confining him in the jail at Norwich, a true and attested copy of the alias execution being left with the jailer. Before the execution could be sent to New Haven for service upon Chasnoff, a temporary injunction was obtained on May 5, 1948, in a separate suit in the Superior Court in New Haven County in the case of Gilman v. Joseloff, supra, restraining Joseloff and Nierwakowski from further levy on the bodies of Chasnoff and Gilman. The injunction was dissolved and judgment was entered for the defendants in the action on December 2, 1948. Joseloff retained the original alias execution in his possession pending the determination of the injunction suit, and it was not returned until November 9, 1948.
Upon appeal to the Supreme Court of Errors, the judgment in the injunction suit was affirmed on June 21, 1949. On June 23, 1949, the defendant Burke, at the request of the defendant Joseloff, issued a pluries execution containing a provision for body attachment. The pluries execution was sent to the defendant Porto, a deputy sheriff in New Haven, who located Chasnoff on June 24, 1949, explained his mission and told Chasnoff he would have to pay the amount of the execution or go to jail. At no time on June 24 did Porto put a hand on Chasnoff or tell him that he was under arrest. Chasnoff told Porto he desired to satisfy the judgment and had sufficient estate but lacked ready cash. At the request of Chasnoff and two business associates, Porto agreed to withhold serving the execution until June 27, 1949, to permit Chasnoff to obtain money with which to satisfy the execution. On June 27, 1949, Chasnoff obtained the money with which to satisfy the execution but did not do so. On the same day, Chasnoff's attorney filed a motion to reargue the case of Gilman v. Joseloff, supra. Porto, upon learning of the filing of the motion, communicated the information to Joseloff, who instructed him to withhold further action on the execution. On July 12, 1949, the motion to reargue was denied. On July 15, 1949, Porto proceeded to levy the pluries execution. Chasnoff stated to him that he was going to pay the execution and so informed his attorney by telephone. His attorney advised him not to do so but to make the sheriff take him to jail. Porto delivered Chasnoff to the New Haven County jail and turned him over to the jailer, the defendant Kromer, with a copy of the pluries execution with Porto's return indorsed thereon. Kromer refused to accept the copy and demanded the original, which Porto turned over to him after indorsing his return upon it. Thereafter, on July 15, 1949, the payment required by the execution and the costs thereon were paid and Chasnoff was released. The copy of the pluries execution was returned to court on August 4, 1949. It was then sent to Porto by the clerk with instructions to obtain the original and return it to court, but the jailer refused to surrender the original and the copy was again returned to the clerk.
The plaintiff charges certain of the defendants with abuse of process. He claims that when the pluries execution was issued on June 23, 1949, there was then outstanding, and not returned, a duplicate of the alias execution issued on April 19, 1948, and that before the pluries execution could legally be issued any previously issued execution was required to have been returned with an appropriate indorsement. This claim is dependent upon a correction of the finding sought by the plaintiff to the effect that when the clerk issued the alias execution he issued a duplicate at the same time. The correction is sought on the strength of a recital contained in the pluries execution as follows: 'The duplicate Alias Execution directed to the Sheriff of New Haven County is in the files of the Superior Court at New Haven, according to advi[c]es received from Attorney Hugh M. Joseloff under date of June 21, 1949.' This recital does not in itself warrant a finding, as an undisputed fact, that the alias execution issued April 19, 1948, was issued in duplicate, and there is nothing in the evidence submitted in the appendix to the plaintiff's brief to amplify the recital. Moreover, such a correction could not benefit the plaintiff. No claim is made...
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