Coughlan v. Murphy.

• Decision Date: 19 May 1948
• Citation: Coughlan v. Murphy., 134 Conn. 601, 59 A.2d 729 (Conn. 1948)
• Court: Connecticut Supreme Court
• Parties: COUGHLAN et al. v. MURPHY.

134 Conn. 601

59 A.2d 729

COUGHLAN et al.

v.MURPHY.

Supreme Court of Errors of Connecticut.

May 19, 1948.

Appeal from Superior Court, Hartford County; O'Sullivan, Judge.

Francis Murphy was appointed guardian of his minor nephew by the probate court for the district of Plainville, and Helen M. Coughlan and others appealed to the Superior Court in Hartford County.Francis Murphy filed a plea in abatement in the Superior Court and moved to dismiss the appeal.Comley, J., sustained a demurrer to the plea in abatement, and O'Sullivan, J., denied the motion to dismiss the appeal, and the issues were tried to the court, King, J.From a judgment setting aside the probate court's decree and appointing Helen M. Coughlan and another joint guardians of the minor, Francis Murphy appeals.

No error.

Leo V. Gaffney, of Hartford, for appellant.

Charles R. Covert, of Bridgeport, for appellees.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

ELLS, Judge.

A Probate Court appointed the defendant guardian of the person of a minor.The plaintiffs appealed to the Superior Court; it set aside the decree of the Probate Court and appointed the plaintiffs joint guardians.The defendant has appealed.

On the 28th day of August, 1946, the Probate Court for the district of Plainville appointed the defendant guardian of the person of his nephew, a minor and an orphan.On September 27, 1946, within the time allowed for the taking of an appeal under General Statutes, § 4991, the plaintiffs, who are the grandparents and an aunt of the child, filed a motion in the Probate Court in which they alleged that they were aggrieved by the order, and moved an appeal to the Superior Court for Hartford County, to be held at Hartford on the first Tuesday of October, 1946, which fell on the first day of October.They posted a proper bond.By an order and decree made on the same day, the Probate Court approved the bond, allowed the appeal, ordered notice of its pendency and of the court and time to which it was returnable to be given to the defendant by leaving a true and attested copy of the motion and the order with him or at his usual place of abode, and directed that due return be made to the Superior Court.The Probate Court, on the same day, issued an order to a proper officer to summon the defendant to appear before the Superior Court on the return day, to be heard in regard to the appeal.On the same day, an officer made service on the defendant by leaving with him the proper papers, duly attested, executed a formal return to clerk of the Superior Court, and deposited in the mail at Plainville, postage prepaid and addressed to the clerk of the Superior Court at Hartford, a copy of the motion, the decree, and his return.The papers were never received by the clerk or if received by him were lost and could not be located.

On March 8, 1947, the plaintiffs filed a motion in the Superior Court in which they set out the foregoing facts and moved for permission to file with the clerk duplicates of the lost papers, to enter the case on the docket, subject to such equitable conditions as the court, after hearing, might impose, and to issue a citation to the defendant to appear and show cause why the motion should not be granted.The court summoned the defendant to appear on March 21, service was duly made, and the parties appeared and were heard.The court granted the motion on the same day.

Thereafter, the defendant pleaded in abatement, a demurrer thereto was sustained, the plaintiffs filed reasons of appeal, the defendant moved to dismiss the appeal, the motion was denied, and the court heard the case on its merits.It decided that the plaintiffs were the persons best qualified to act as guardians, reversed and set aside the decree of the Probate Court and appointed them joint guardians of the child.In his appeal to this courtthe defendant claims only that the Superior Court erred in respect to the preliminary rulings hereinafter discussed.

A principal claim is that the court erred in sustaining the demurrer to the plea in abatement.In substance, the plea is based on the contention that probate appeals are civil process and must be served on a defendant at least twelve days before the return day.General Statutes, chapter 288, is headed: ‘Service and Return of Civil Process.’The first section thereunder, § 5462, provides that civil process, if returnable to the Superior Court, shall be served at least twelve days, inclusive, before the return day.There is, however, a separate chapter, 267, which applies to ‘Appeals from Probate.’Section 4995 of this chapter provides as follows: ‘The court of probate, in allowing an appeal, shall make such order of notice to persons interested as it shall deem reasonable.When such notice shall have been given by the appellant and proved to the court to which the appeal is taken, said court may hear the appeal without further notice.’This statute would serve no purpose if the appeal must be served in the same manner as ordinary civil process.Section 4995 governs the present situation.A probate appeal is taken from and allowed by a Probate Court.The notice provided for in § 4995 is not essential to give the appellate court jurisdiction of the cause.The provision requiring notice is a separate section of chapter 267 from that giving a right of appeal; it relates to the duties of the Court of Probate and not of the appellant; it is merely directory; when the appeal is properly taken and allowed, the jurisdiction of the Superior Court over the cause attaches; the Superior Court will not proceed with the cause until the appellee has had notice of the appeal; and if it does not appear that he has had notice, the court will cause notice to be given before proceeding to trial and judgment.Donovan's Appeal, 40 Conn. 154, 155.In that casewe pointed out that these circumstances distinguish probate appeals from actions of which the Superior Court has original jurisdiction, as regards the requirements of service of...