Equitable Trust Co. of N.Y. v. Plume

• Decision Date: 11 June 1918
• Citation: 92 Conn. 649,103 A. 940
• Court: Connecticut Supreme Court
• Parties: EQUITABLE TRUST CO. OF NEW YORK v. PLUME et al.

103 A. 940

92 Conn. 649

EQUITABLE TRUST CO. OF NEW YORK

v. PLUME et al.

Supreme Court of Errors of Connecticut.

June 11, 1918.

Appeal from Superior Court, New Haven County; Case and Bennett, Judges.

Action by the Equitable Trust Company of New York, executor, against Frank C. Plume and others to recover a debt due from defendant Plume to one Coyne, brought to the superior court for New Haven county at Waterbury, and tried to the court on a motion to erase by Case, J. Judgment erasing said case from the docket; motion to reopen said judgment tried before Bennett, J., and denied; appeal by plaintiff from the judgment entered and from the denial of the motion to reopen the judgment. No error.

Ulysses G. Church, of Waterbury, for appellant. Charles S. Hamilton, of New Haven, and Frederick Seymour, of New York City, for appellees.

WHEELER, J. The plaintiff's claim is the same as that made in Coyne v. Plume et al., 90 Conn. 293, 97 Atl. 337. While that case was before this court Coyne, a nonresident, died, and the present plaintiff, having been appointed ancillary executor by the probate court for the district of Waterbury, was allowed by this court to appear and prosecute the action. The judgment for the plaintiff was on appeal reversed. Thereafter the plaintiff trust company as ancillary executor was admitted as a party plaintiff in the superior court, where the judgment was reversed in accordance with the decree of this court.

The plaintiff as ancillary executor seeks to secure payment of the debt of Plume out of the income of a trust fund in which Plume had a life use. The defendants Plume, Willard, and Seymour are nonresidents. Wil lard and Seymour claim an interest in this income through certain assignments from Plume to them. Hamilton, a resident, claims an interest in the income as attaching creditor. In this action a writ of foreign attachment was served on the Colonial Trust Company, and subsequently it was appointed temporary receiver and as such is now holding the income from this fund. Each of the defendants specially appeared and filed a plca in abatement and to the jurisdiction, to each of which the plaintiff demurred. The defendant Seymour also filed a motion to erase the case from the docket for want of action. The several demurrers and the motion to erase were heard together, but the trial court concluded that one of the questions raised by the motion to erase made unnecessary consideration of the pleas in abatement or of the other questions in the motion. It accordingly granted the motion upon the ground that the trust company had no right to sue as executor.

The motion to erase in this court is an incorrect method of meeting all of the issues raised upon this motion. The pleas in abatement covered by paragraphs 1 and 2 raise the question of the validity of the appeal. The judgment erasing the case from the docket was rendered on July 19, 1917, a notice of appeal was duly filed, and the appeal filed on October 25th following. The necessity of filing the appeal in July and August was suspended; this is fairly within the intendment of chapter 24, p. 264, Public Acts 1905. But since no finding of facts or other action of the judge was necessary to properly present the questions in the cause upon the judgment erasing the case, the appeal must have been taken within 10 days unless the judge had granted a further extension of time. G. S. 791; Hart v. Farchau, 83 Conn. 316, 318, 76 Atl. 292; Cramer v. Reeb, 89 Conn. 607, 609, 96 Atl. 154. Under our application of the provision for granting an extension of time in which to file an appeal, litigants in all classes of appeal may apply for such extension, and, as we have before pointed out, "the practice of our trial judges in granting such extensions is neither narrow nor illiberal."

When, however, a motion is made to restore a case to the docket which has been stricken from it and this motion is entertained, it operates to defer the time for filing an appeal until the motion is finally decided. Sanford v. Bacon, 75 Conn. 541, 544, 54 Atl. 204; Beard's Appeal, 64 Conn. 526, 535, 30 Atl. 775. The motion to reopen the judgment erasing this case from the docket is similar to the motion to restore a case to the docket, and is within the principle of these decisions, since it was entertained by the court, an answer to it filed, and a reply to this answer filed, and the court upon the issues thus joined heard the motion and rendered Its decision. If this were not the ruling, it would be necessary to file the appeal within 10 days after the motion to erase was granted, and then to file an additional appeal within 10 days from the denial of the motion to reopen the judgment. This would unnecessarily cumber the record to no good purpose.

No notice of appeal wag filed after the motion to open the judgment had been denied, but within 6 days thereafter the appeal was filed. An appeal fifed within the time the notice of appeal is required to be filed serves a double purpose, as a notice of appeal and as an appeal itself. There was no occasion for filing an additional notice of appeal. The demurrer to the pleas in abatement and to the jurisdiction in this court is sustained.

Both the plea in abatement and the motion to erase filed in the trial court contain affirmative allegations requiring proof. These are out of place in a motion to erase. Such a motion is to be determined as a demurrer or a motion to quash is determined by the facts of record. The trial court decided the motion to erase and not the pleas in abatement, and it decided merely the question of law arising upon the facts of record and ignored consideration of questions dependent upon facts extraneous to the record.

The ground upon which the trial court granted the motion to erase was that upon the facts of record the plaintiff trust company did not have the right as executor to maintain this action in Connecticut. That question was fairly raised from the motion to erase. After the judgment was entered erasing the case the trust company moved to reopen this judgment and to add as plaintiff a resident ancillary administrator on the estate of Coyne, whose appointment it alleged it was ready and willing to apply for and had already applied for. These two questions constitute the sole ground of the appeal. The first is the only one of real importance.

We held in Farmers' Loan & Trust Co. v. Smith, 74 Conn. 625, 627, 51 Atl. 609, that every testator could select his executor from any class of persons unless such class is by the common law or statute excluded from such appointment. The claim was there made that under our common law a corporation could not be made an executor. We did not find it necessary to decide this, but we expressed the view that in the light of the legislation of recent years it could not be said to be the settled policy...