Chittenden v. Carter

• Decision Date: 17 December 1909
• Citation: 82 Conn. 585,74 A. 884
• Court: Connecticut Supreme Court
• Parties: CHITTENDEN v. CARTER.

74 A. 884

82 Conn. 585

CHITTENDEN

v. CARTER.

Supreme Court of Errors of Connecticut.

Dec. 17, 1909.

Appeal from Superior Court, Fairfield County; Edwin B. Gager, Judge.

Action by Edgar D. Chittenden against Edward Carter. Judgment for defendant, and plaintiff appeals. No error.

John C. Chamberlain, for appellant John W. Banks, for appellee.

HALL, J. The plaintiff, a resident of this state, brought an action against the defendant, a resident of the city of New York, for $5,000 damages for an alleged fraudulent sale of stock. The officer's return indorsed upon the original complaint shows a personal service upon the defendant in the city of Bridgeport. Upon the return of the complaint to court the defendant filed the following plea in abatement:

"(1) Defendant was at the time of the service of the writ in this action, and still is, a resident and citizen of the state of New York, and not a resident of this state.

"(2) At the time of the service of said writ, the defendant was temporarily in the city of Bridgeport, in this state, for the sole purpose of testifying as a witness in a certain cause then and there pending in this court, in which the E. L. Cleveland Company was the plaintiff and Charles M. Gilman was the defendant.

"(3) Said writ was not otherwise served upon the defendant than by leaving a copy of said writ and complaint with him immediately after he had left the courtroom where he was in attendance as such witness, and while he was temporarily in this state for the sole purpose of testifying as a witness in said cause, and before he had had a reasonable opportunity to leave the state after said attendance in this court.

"He therefore prays for judgment"

To this plea the plaintiff demurred upon these grounds:

"(1) That it does not appear from said plea in abatement whether or not the defendant at the time of the service was supposed to be a witness for the plaintiff or the defendant in the then pending action.

"(2) Because it does not appear from said plea in abatement but that the defendant voluntarily came within the jurisdiction of said court for the purpose of assisting another person, who had also voluntarily entered within its jurisdiction."

The trial court overruled this demurrer.

The plaintiff thereupon filed the following answer to the plea in abatement:

"(1) Paragraphs 1, 2, and 3 are admitted.

"(2) Said action of Cleveland against Gilman, in which this defendant came to testify, was one brought by said Cleveland to enforce the collection of a certain promissory note, executed by the therein defendant Gilman, and transferred by him to the defendant in this action, Edward Carter.

"(3) Said promissory note was transferred by the defendant herein to the said Cleveland with the agreement that the proceeds of said note when collected should be first applied to the payment of certain stock purchased by said Carter from said Cleveland, and the balance paid over to said Carter, with the further agreement that, if said note was not so collected, said Carter should pay said Cleveland for said stock out of his own funds, or lose the same. "(4) Said action, in which said Carter was present as a witness, was one in which the said Cleveland was a nominal plaintiff only, and he, the said Carter, was the real plaintiff, and was the person interested in its outcome."

To this answer the defendant demurred upon these grounds:

"(1) Because a nonresident of this state who is present in this city solely for the purpose of testifying as a witness in an action here pending is exempt from the service of process, even though he be interested in the outcome of said action.

"(2) Because a nonresident of this state who is present in this city solely for the purpose of testifying as a witness in an action here pending is exempt from the service of process, even though he be the real plaintiff in said action.

"(3) Because it appears from the allegations of the answer that the defendant is not the plaintiff in said action of Cleveland against Gilman, but merely a witness interested in the outcome of said action."

The trial court sustained this demurrer, and thereupon rendered judgment for the defendant.

The rulings of the trial court upon these two demurrers are the only reasons of appeal.

In overruling the plaintiff's demurrer to the plea in abatement, and sustaining the defendant's demurrer to the answer to the plea in abatement, the trial court in effect held, first, that the defendant, being a nonresident, and being present in this state for the sole purpose of testifying in said case of the E. L. Cleveland Company v. Charles M. Gilman pending in the superior court of this state, could not lawfully be served with process in the present action before he had had a reasonable opportunity to leave this state after his attendance in said court as such witness; second, that upon the facts alleged in the plaintiff's answer to the plea in abatement the defendant in this case was not the real plaintiff in the case of Cleveland Company v. Gilman; and, third, that this defendant's interest in the outcome of the case of Cleveland Company v....