Gaul v. Baker

• Citation: 108 Conn. 173,143 A. 51
• Court: Connecticut Supreme Court
• Decision Date: 18 June 1928
• Parties: GAUL v. BAKER ET AL.

143 A. 51

108 Conn. 173

GAUL v. BAKER ET AL.

Supreme Court of Errors of Connecticut.

June 18, 1928

Appeal from Superior Court, Fairfield County; Edwin C. Dickenson Judge.

Action of ejectment by Francis J. Gaul against Charles H. Baker and others. Defendant Baker's demurrer to the plaintiff's answer to a plea in abatement and to the jurisdiction was overruled and the plea overruled, a judgment by default was entered against the defendant Baker, and issues raised by the complaint and the counterclaim of the defendant Gerace were tried to the court. Judgment for the plaintiff, and defendants appeal. No error.

Joseph A. Gray, of Norwalk, for appellants.

Raymond E. Hackett, of Stamford, for appellee.

Argued before MALTBIE, HAINES, HINMAN, AVERY, and BALDWIN, JJ.

MALTBIE, J.

This is an action of ejectment. The defendant Baker pleaded in abatement, among other grounds stated, that he was a nonresident, and that no personal service had been made on him nor had any property belonging to him in this state been attached, and these facts were admitted in the answer to the plea. When the action was instituted, notice of its pendency was ordered to be given to Baker by registered mail, in accordance with the provisions of section 5599 of the General Statutes, and this order was complied with. Subsequently another like order was made and complied with, and the case was ordered continued on the docket for three months, but, upon proof that Baker had received actual notice of the pendency of the action, the continuance was thereafter terminated; this procedure strictly according in all respects with the applicable provisions of sections 5625 and 5627 of the General Statutes.

Our action of ejectment differs greatly from that of the common law, and is much broader in its scope. Walsh v Feustel, 93 Conn. 366, 370, 105 A. 696. It may and usually does involve the question of title, so much so that the pendency of an action of ejectment may be ground for abating a later action brought to settle the title to the lands involved. Cahill v. Cahill, 76 Conn. 542, 545, 57 A. 284. As a proceeding brought to determine the title and right to the possession of land it is a local action, and the issues are not such that they could be tried elsewhere than in this state. Kentucky Coal Lands Co. v. Mineral Development Co. (C. C. A.) 219 F. 45, 46. When brought, as it is here, to assert a right to possession based upon a claimed title, it is substantially a proceeding in rem, and, as our statutes contain applicable provisions for notice to a nonresident claimed to be in possession of the land, and as these provisions were followed in this case, the court had jurisdiction to determine the plaintiff's right to the land as against the defendant Baker. Harris v. Weed, 89 Conn. 214, 222, 93 A. 232; Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520; Arndt v. Griggs, 134 U.S. 316, 10 S.Ct. 557, 33 L.Ed. 918; Clem v. Givens, 106 Va. 145, 55 S.E. 567; Williams v. Williams, 221 Ill. 541, 545, 77 N.E. 928. The other grounds of abatement alleged, in so far as they could be considered proper matter to plead in abatement at all, required evidence to support them, and the defendant offered none. To be sure, at the time finally set for hearing, he asked a continuance, but the court refused it, and we cannot find that it abused its discretion in that regard. There was no error in overruling the plea in abatement.

Having overruled the plea, the trial court properly proceeded with the case. Judgment of default for failure to appeal was entered against the defendant Baker, and he took no further part in the action until this appeal was filed. The complaint alleged that Baker had wrongfully dispossessed the plaintiff and was keeping him out of possession, and that the other defendant, Gerace, was also occupying and in possession of the premises as a caretaker and agent for Baker. Gerace pleaded in answer a general denial of the complaint and a counterclaim. In so far as the general denial is concerned, the claim of Gerace seems to be, not that the plaintiff was not the holder of the legal title of the premises, but that he had no real interest in them and was holding title merely for the benefit and as the representative of one Newman. The trial court has found that the plaintiff became the owner in fee of the premises in 1922 and was such owner and entitled to immediate possession when the action was brought. Only by correcting and adding to the finding could the defendant maintain its claim, and no proper steps were taken to that end. Moreover, the defendant does not dispute that Gaul held the legal title to the premises and as such this action at law was well brought by him; our rule permits, but does not require, actions to be brought in the name of the real party in interest. Practice Book, p. 278, § 161; Lowndes v. City National Bank, 79 Conn. 693, 696, 66 A. 514; Treat v. Stanton, 14 Conn. 445, 451.

In the first count of the counterclaim, Gerace alleges that he had been in possession of the premises under employment by the plaintiff and claimed the reasonable value of his services under that employment. But the trial court has found that Gerace was in possession of the premises as caretaker for the defendant Baker, has been paid by him for his services, and was never employed by the plaintiff. This finding the defendants attempt to attack, but again they have followed no proper procedure. Had they done so, an examination of the evidence which appears in...