Hurlbut v. Thomas

• Decision Date: 25 March 1887
• Citation: 55 Conn. 181,10 A. 556
• Parties: HURLBUT v. THOMAS.
• Court: Connecticut Supreme Court

10 A. 556

55 Conn. 181

HURLBUT

v. THOMAS.

Supreme Court of Errors of Connecticut.

March 25, 1887.

H. B. Graves, for plaintiff. W. Cothren, for defendant.

BEARDSLET, J. In the year 1873 a justice court in the town of Roxbury rendered judgment against the defendant in a suit brought by the plaintiff, and the present suit was brought to enforce the payment of that judgment. The defendant claims that the judgment is invalid, for the reason that personal service of the writ was not made upon him, and that he had no notice of the pendency of the suit until after the rendition of the judgment. The record of the justice court shows affirmatively that both the plaintiff and defendant were inhabitants of this state when the writ was served, and that service was made by leaving a true and attested copy of it at the usual place of abode of the defendant; that the defendant was then absent from the state; that on the return-day of the writ the defendant did not appear, and the justice adjourned the case for three months, at the expiration of which time he rendered judgment against the defendant by default. The writ was served in the manner prescribed by the statute; the adjournment of the case for three months, though unnecessary, was within the discretion of the justice, and the judgment while in force is conclusive upon the parties. Gen. St. p. 401, § 3; Grant v. Dalliber, 11 Conn. 234; Coit v. Haven, 30 Conn. 190.

The defendant also asks, by way of equitable relief, that the plaintiff shall be restrained from enforcing the judgment. But the court below finds that no injustice was done the defendant by the judgment. For the particular grievance of which the defendant complains, namely, that judgment was rendered against him without his having received actual notice of the pendency of the suit, the law furnished him ample remedy if he had chosen to avail himself of it. By statute (Gen. St. p. 447, § 1) he could have brought a petition for a new trial, or at common law a writ of error coram nobis, or, after the three years within which these proceedings must be brought, he could have brought a suit in equity for relief against the judgment. Jeffery v. Fitch, 46 Conn. 601. He not only did not avail himself of either of the legal remedies within the time limited, but apparently has slept too long on his rights to be now heard in a court of equity. However that may be, he clearly cannot find a remedy by setting up, in an action upon the judgment, the mere fact...