Falken v. Housatonic R. Co.

• Court: Connecticut Supreme Court
• Writing for the Court: FENN, J.
• Citation: Falken v. Housatonic R. Co., 27 A. 1117, 63 Conn. 253 (Conn. 1893)
• Decision Date: 06 July 1893
• Parties: FALKEN v. HOUSATONIC R. CO.

27 A. 1117

63 Conn. 253

FALKEN

v. HOUSATONIC R. CO.

Supreme Court of Errors of Connecticut.

July 6, 1893.

Appeal from superior court, Fairfield county; Thayer, Judge.

Action by Ida Falken, administratrix, against the Housatonic Railroad Company, for damages for death of plaintiff's intestate by defendant's negligence. Defendant's demurrer being overruled, the court ordered a hearing in damages by a jury. Defendant appeals. Reversed.

G. Stoddard and W. D. Bishop, for appellant.

M. W. Seymour and H. H. Knapp, for appellee.

FENN, J. The defendant in this action, which was brought to recover damages for injuries resulting in the death of the plaintiff's intestate, filed on December 31, 1890, in the superior court, in which the action was pending, a demurrer to the complaint, which demurrer was heard and overruled April 29, 1892. Nothing further was done until the October term of the court, 1892, when the case was put by the plaintiff on the trial list, marked "Jury," and on motion of the plaintiff was assigned for a hearing in damages to the court on December 21, 1892. At that time both parties appeared with their witnesses, and the plaintiff, after the papers were read, moved that the cause be heard in damages to the jury. No jury was or had been in attendance during the term, and none was to be summoned at that session. No previous notice of such motion had been given to the defendant. The defendant objected to granting the motion, on the grounds—First, that under the practice of the court the cause could only properly be heard in damages to the court; and, second, that the motion came too late. But the court granted the motion, and continued the cause to be heard by the jury in damages at the next session, where the cause was so heard, resulting in a verdict and judgment for the plaintiff for $5,000 damages.

In view of the conclusion which we have reached, which renders the other questions raised upon the defendant's appeal unimportant, the only question which we shall consider is whether the defendant's first objection, as above stated, to a hearing in damages by a jury, should have been sustained. It is conceded that the question narrows itself to purely one of construction of chapter 157 of the Public Acts of 1889, since, by the immemorial practice in this state, supported by repeated decisions and sanctioned by statute, damages in such cases are assessed by the court without the intervention of a jury. The act of 1889 provides that "in every action of tort, in which the defendant suffers a default, and there is a hearing in damages, said hearing in damages shall he to a jury, unless the defaulting defendant shall have given notice of his intention to suffer such default to the clerk of the court in which such action is pending, within thirty days after the time fixed by law for closing the pleadings in such action shall have expired." The inquiry is, whether the defendant should be held, within the intent and meaning of this act, to have "suffered a default," and to be a "defaulting defendant." The record shows that after the demurrer was overruled no further pleadings or answer over were filed by the defendant, and it is the claim of the plaintiff that "upon the overruling of a demurrer the case stands without answer; that one of two courses is open to the defendant— to let the case stand without answer, or to answer over; and if he answers over the cause is tried upon the issue raised by that answer, and if he does not see fit to answer over he suffers a default, whereupon the plaintiff is entitled to judgment on the cause of action set forth in his complaint, if it is capable of exact ascertainment, and, if not, an ascertainment of the damages by a court or jury upon a hearing in damages." Now, in reference to the above claim, it is true that by virtue of our statute (Gen. St. § 1014) in all civil actions upon the overruling of a demurrer a party may plead over. That is a privilege accorded. But if a party fails to avail himself of that privilege, he stands as if it had not been granted, and judgment is rendered upon demurrer. If judgment upon demurrer ever meant anything different from judgment upon default, it means so still, as applied to one who fails to avail himself of the statutory privilege of pleading over. That it has had such distinct meaning is manifest even from the citations made by the plaintiff to show the contrary. Thus Swift, in his System, (volume 2, p. 267,) says: "Where the action is founded on a tort, if on demurrer judgment be rendered against the defendant, or if he refuses to plead, or makes default of appearance," etc.; and the same distinction runs throughout all the other numerous citations made. Black, in his work on Judgments, (volume 1, § 12,) classifies judgments as of four kinds:—(1) Judgments on an issue of law; (2) judgments upon a verdict; (3) judgments without a verdict; (4) judgments against a verdict. In section 13 he treats of the first, saying, "These judgments are given upon the decision of a demurrer." and classifies them; the first class being "for the plaintiff when the issue raised by a demurrer to any of the pleadings is decided in his favor." Of this judgment he says: "It is final and definitive, and concludes the right of action. Its style is quod recuperat" In section 15, in treating of the third class,— judgments without verdict,—he gives as the first of numerous varieties, "judgment by default," saying: "This is a judgment entered in consequence of the nonappearance of the defendant. Where the defendant omits to plead within the time required, the judgment taken against him for that cause is more properly called 'nil dicit,' but the term 'default* is usually extended to cover this case also." In Lennon v. Rawitzer, 57 Conn., on page 585, 19 Atl. 334, Loomis, J., delivering the opinion of the court, defines a default as "a common-law judgment which was entered when the defendant neglected or refused to appear, or when he acknowledged the action to be just, and withdrew his appearance,"—a definition which clearly does not embrace judgments upon demurrer, whether such judgments be regarded as final or Interlocutory. They are, indeed, doubtless the latter in such a case as the one now under consideration, for two reasons: First, because, being in an action for unliquidated damages, it is, as a default also would be in such a case, an incident which entitles the plaintiff to judgment, but does not determine the amount of such judgment, (Sheldon v. Sheldon, 37 Vt. 152; Holcomb v. Town of "Winchester, 52 Conn. 448;) and, second, because the statute passed in 1872, allowing a party upon the overruling of a demurrer to plead over, causes the interlocutory judgment of respondeat ouster to be entered. But in reference to the latter point, as said by this court in Denton v. Town of Danbury, 48 Conn. 372,...