Friede v. Jennings

• Decision Date: 09 March 1936
• Citation: 184 A. 369,121 Conn. 220
• Court: Connecticut Supreme Court
• Parties: FRIEDE et al. v. JENNINGS et al.

184 A. 369

121 Conn. 220

FRIEDE et al. v. JENNINGS et al.

Supreme Court of Errors of Connecticut.

March 9, 1936

Rehearing Denied April 21, 1936.

Appeal from Superior Court, Hartford County; Earnest A. Simpson and Arthur F. Ells, Judges.

Action to recover an assessment against stockholders of an insolvent joint stock land bank by Erwin J. Friede, receiver-trustee and others, against H. A. Jennings, administrator, and others, wherein pleas in abatement and to the jurisdiction were filed and demurrers to them overruled. From a judgment abating the action as to one defendant and erasing it as to another, plaintiffs appeal.

No error.

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

William S. Locke, Ralph O. Wells, and Hale Anderson, Jr., all of Hartford, for appellants.

William Reeves, of Bridgeport, for appellee Jennings.

David R. Lessler, of Bridgeport, for appellee McGrath.

MALTBIE, Chief Justice.

This action was brought to the superior court in Hartford county. The complaint alleges that the plaintiff Friede of Minneapolis, Minn., is receiver of the Joint Stock Land Bank of Minnesota, and has been duly appointed by the United States District Court for the District of Minnesota as receiver to collect an assessment made in that court against all stockholders of the bank, and that the other plaintiffs, all residents of that state or of the state of Illinois, are the duly authorized trustees for farm loan bonds issued or assured by the bank, who appear in their own behalf and that of all other creditors of the bank. The further allegations of the complaint are addressed to a recovery from each of the defendants of the amount of that assessment which is equal to the par value of the stock of the bank owned by them severally or which had been owned by a deceased person of whose estate the defendant is representative, in accordance with the terms of the federal act (12 U.S.C.A. § 811 et seq.) under which the corporation was organized, the assessment having been made for the purpose of discharging obligations to the creditors of the bank. The relief asked is a decree that Friede has authority to bring the action by virtue of his appointment in the proceedings in Minnesota and judgment in his favor against each of the defendants, or, if the court finds that Friede is not so authorized, appointment of an ancillary receiver to enforce the alleged liability of the defendants and a judgment that they pay into court or to such receiver the amounts due from them, with certain incidental relief not material to the issues now before us.

A number of the defendants are described as of Hartford county, but others are described as residents of other counties of the state. Among the latter are H. A. Jennings, as administrator upon the estate of Nellie M. Jennings, and Katherine A. McGrath. Jennings filed a plea to the jurisdiction and a plea in abatement, both based upon the ground that the plaintiffs were all nonresidents of the state and the defendant was a resident of Bridgeport in Fairfield county; the plaintiffs demurred to these pleas; the demurrer to the plea to the jurisdiction was overruled; and the plaintiffs filed answers admitting that the residence of the parties was as alleged. Katherine A. McGrath filed a plea to the jurisdiction, one ground being that she was a resident of Fairfield county and another that the amount of damages sought against her, $200, was not within the jurisdiction of the superior court; to this plea the plaintiffs demurred, but the demurrer was overruled. Without further proceedings, judgment was entered abating the action as regards Jennings on the ground that it was brought in the wrong county and crasing the action as regards Katherine A. McGrath upon the ground that the amount of damages claimed from her was not within the jurisdiction of the superior court.

Section 5444 of the General Statutes, so far as applicable to this action, provides that actions before the superior court shall be brought in the county " where the plaintiff or defendant dwells, if either or both of them are inhabitants of this state." The purpose of this provision, of very ancient origin, is to prevent the harassment of defendants by compelling them to go to other counties than their own to meet claims asserted against them, except as countervailing considerations in behalf of the plaintiff require that he be not put to the necessity of going to another county to enforce his claimed right. See 2 Colonial Records, pp. 52, 305; United States v. Noyes, 4 Conn. 340. While the statute uses the words " plaintiff" and " defendant" in the singular, it must of course be interpreted so as to meet, at least in certain circumstances a situation where there is more than one plaintiff or defendant and the plaintiffs or defendants reside in different counties Chief Justice Hosmer early stated the meaning of the statute as it applied to such a situation: " So, if one of numerous plaintiffs or defendants, resides in one county, and the rest in another, an action is sustainable, for or against them, in either county. The words of the act do not reach this case; but the object of it does; and the construction must be commensurate with the legislative intention." United States v. Noyes, supra, 4 Conn. 340, at page 343; see, also Wood v. Hartford Fire Ins. Co., 13 Conn. 202, 211, 33 Am.Dec. 395; Day v. Jackson, 5 Mass. 237, 239; Eames v. Carlisle, 3 N.H. 130. This interpretation of the statute certainly applies in the case of a necessary joinder of parties, as where, for instance, the action is brought against several defendants liable upon a strictly joint obligation.

A very different situation arises where a plaintiff joins defendants under the broad provision of the Practice Act that " any person may be made a defendant who has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff." General Statutes, § 5517. Under this statute, we held that the superintendent of banks of New York might sue in a single action various owners of stock in an insolvent bank to enforce an assessment made upon them, although a recovery would necessarily be against each severally, and separate and distinct issues might arise as to the liability of the various defendants and separate trials be necessary. Broderick v. McGuire, 119 Conn. 83, 104, 174 A. 314, 94 A.L.R. 890. In that case no question arose as to the right of the plaintiff to secure a judgment against a defendant who resided in some other county than that in which the action was brought. Such an action well illustrates the possibility of defeating the legislative purpose underlying section 5444 of [121 Conn. 226] the General Statutes, if the rule stated in United States v. Noyes, supra, were to apply to it; for if it did, the plaintiff, finding one defendant residing, for example, in Litchfield county, might bring his action there, and, although all the other defendants resided in New London county, compel them to go to the former county, with their witnesses, there to litigate the controversy. Section 5517 was originally enacted in 1879 as a part of the Practice Act then adopted. Public Acts 1879, c. 83. That act expressly repealed or amended various statutes previously in effect, but had no general provision repealing all acts inconsistent with it. Had it been the intent of the Legislature by the provisions of the Practice Act to change the ancient statute governing the venue of civil actions, that intention would have found expression in it. Sections 5444 and 5517 must be read together and in an action brought by a nonresident the latter section can be construed to permit a joinder of defendants residing in different counties only when that is permissible within the fair meaning of the former.

The action before us has two aspects: In one, it seeks a decree that the plaintiff Friede has authority to enforce the liability of the defendants to an assessment, or, in the alternative, the appointment of an ancillary receiver to do so; in the other, it seeks a recovery from each of the defendants of the amount which he is severally liable to pay. The first aspect of the case will almost of necessity have to be heard and...