D'Andrea v. Rende

• Decision Date: 09 December 1937
• Citation: 195 A. 741,123 Conn. 377
• Parties: D'ANDREA et al. v. RENDE.
• Court: Connecticut Supreme Court

195 A. 741

123 Conn. 377

D'ANDREA et al. v. RENDE.

Supreme Court of Errors of Connecticut.

December 9, 1937

Appeal from City Court of Stamford; Edward C. Fisher, Judge.

Action to quiet title by Salvatore D'Andrea and others against Jennie Rende, brought to the city court of Stamford and tried to the court. Judgment for plaintiffs, and defendant appeals.

No error.

Maurice J. Buckley, of Stamford, for appellant.

Abraham Reback, of Stamford, for appellees.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

JENNINGS, Judge.

The complaint is in the form of an action to quiet title. Subsequent pleadings reveal that the defendant claims to have an attachment lien on property owned by the plaintiffs. The object of the plaintiffs is to remove the lien of this attachment.

On April 22, 1930, Patsey Prince conveyed the premises described in the complaint to Max H. Mernstein, trustee. On May 29 1930, the defendant caused these premises to be attached in an action returnable to the City Court of Stamford wherein Prince and Mernstein, trustee, were defendants. The certificate of attachment was duly recorded.

Soon after the service of the attachment, Mernstein, trustee, the then owner, made application to Hon. Justus J. Fennel, a judge of the City Court of Stamford, to dissolve this attachment. Notice of the application was served upon John A. Walsh, one of the attorney for the present defendant, plaintiff in the attachment action. At the hearing Mernstein appeared with a surety and they entered into a bond to the defendant. Judge Fennel thereupon ordered the dissolution of the attachment, and this order was recorded upon the land records of Stamford. No further action has ever been taken in the attachment suit. Judge Fennel neither certified his doings upon the application nor returned the bond to the file. The bond is not in the file and none was produced at the trial. On June 23, 1930, Mernstein, trustee, deeded the premises to the present plaintiffs. This deed and the order of dissolution of the attachment were both recorded in the land records of Stamford on July 1, 1930.

The defendant claims that the order of dissolution is invalid because of certain irregularities in the proceedings. She also attacks the finding and certain rulings on evidence. The finding cannot be corrected in any way beneficial to the defendant. The order of dissolution is claimed to be invalid because of insufficient notice of the application and because the judge failed to certify his doings thereon and make due return to court.

Section 5734 of the General Statutes reads as follows: ‘ No attachment shall be dissolved until reasonable notice of the application, in writing, signed by the defendant or his attorney, shall have been served upon the plaintiff or his attorney and the officer serving the attachment’ ; followed by a form. This provides for two notices, one on the plaintiff or his attorney and one on the officer serving the attachment. The attorney for the attaching plaintiff was duly served. The claim of the defendant that service on only one of the attorneys of the plaintiff is not a strict compliance with the statute is without merit. Bristol v. Pitchard, 81 Conn. 451, 454, 71 A. 558. The plaintiff's brief states that the officer who made the attachment was the same officer who served the notice of the application to dissolve, but this fact cannot be ascertained from the record. The question on this phase of the case is whether the failure to serve the officer deprived the judge of jurisdiction.

The dissolution of an attachment is a ‘ statutory proceeding.’ Birdsall v. Wheeler, 58 Conn. 429, 434, 20 A. 607. The statute confers a definite jurisdiction upon a judge, and it ‘ defines the conditions under which such relief may be given.’ Sachs v. Nussenbaum, 92 Conn. 682, 687, 104 A. 393, 395. In such a situation jurisdiction is only acquired if the essential conditions prescribed by the statute are met. If they are not met, the lack of jurisdiction is one over the subject-matter and not over the parties. Sears v. Terry, 26 Conn. 273, 285; Dorrance v. Raynsford, 67 Conn. 1, 7, 34 A. 706,52 Am.St.Rep. 266; Ferrie v. Trentini, 111 Conn. 243, 149 A. 664. The court's jurisdiction cannot be conferred by consent. Savings Bank of Danbury v. Downs, 74 Conn. 87, 89, 49 A. 913. ‘ Want of jurisdiction is one thing, and an erroneous exercise of an admitted jurisdiction is quite another, although the line that separates [them] is not always a plain one.’ Terry's Appeal, 67 Conn. 181, 185, 34 A. 1032, 1033. It follows that, if this lack of notice to the officer was a substantial defect, the judge had no jurisdiction of the subject-matter and service on the defendant and her failure to appeal would not save the case. If, on the other hand, it was a circumstantial defect, a mere irregularity, it would not destroy the jurisdiction of the proceeding. It could be waived and would be waived if no appeal was taken from the judgment. Hudson v. Roberts, 104 Conn. 126, 132 A. 404; Butterfield v. Brady, 111 Conn. 112, 149 A. 252. The defendant had due notice of the hearing and therefore of the order of dissolution. This was a final judgment, Sachs v. Nussenbaum, supra, and there was no appeal. She has slept on her claimed rights for over six years.

A some what similar situation has frequently arisen in regard to replevin actions where there was a defect in the bond or recognizance which the statute requires. The plaintiffs in these actions have uniformly been denied the privilege of relying on these defects in bonds which they themselves gave to enable them to institute their suits. Nichols v Standish, 48 Conn. 321; McNamara v. Mattei, 74 Conn. 170, 177, 50 A. 35; Douglass v. Unmack, 77 Conn. 181, 183, 58 A. 710,107 Am.St.Rep. 25. In the case last cited it is expressly stated that the defects in the bond, one that the surety was the magistrate signed...