Johnson v. Zoning Bd. of Appeals of Town of Branford

• Decision Date: 05 March 1974
• Court: Connecticut Supreme Court
• Parties: Carol C. JOHNSON v. ZONING BOARD OF APPEALS OF the TOWN OF BRANFORD et al.

Page 53

347 A.2d 53

166 Conn. 102

Carol C. JOHNSON v. ZONING BOARD OF APPEALS OF the TOWN OF BRANFORD et al.

Supreme Court of Connecticut.

March 5, 1974.

Carol C. Johnson, pro se, the appellant (plaintiff).

Frank J. Dumark, Branford, for the appellee (named defendant).

John W. Colleran, New Haven, for the appellee (defendant Walter Kreske).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

SHAPIRO, Associate Justice.

This case arises from a decision of the zoning board of appeals of the town of Branford, hereinafter referred to as the zoning board of appeals, granting a variance to the individual defendant Walter Kreske to allow the construction on his property of a two-car carport and additions to his house consisting of a two-story addition and a second-story addition.

Carol C. Johnson, the plaintiff pro se, is a half-yearly seasonal resident of and tax-payer in the town of Branford who owns and resides on real estate immediately abutting, contiguous and adjacent to the property in question belonging to the defendant Kreske.

By citation, ¹ summons and complaint dated November 2o, 1968, the plaintiff appealed from the decision of the zoning board of appeals to the Court of Common Pleas in New Haven County, pursuant to § 8-8 of the General Statutes. ²

The complaint and citation to the sheriff commanding him to summon the zoning board of appeals and Walter Kreske, the defendants herein, to appear before the Court of Common Pleas in New Haven County were signed, 'The Plaintiff, Carol C. Johnson Pro Se.' The citation was made returnable the first Tuesday of January, 1969. No bond or recognizance with surety was given before the issuance of mesne process.

On December 13, 1968, counsel for the defendant zoning board of appeals filed a general appearance. Counsel for the defendant Kreske filed a special appearance and a plea in abatement on January 7, 1969. The plea alleged that the court was without jurisdiction of this matter since the citation was not issued by a competent authority as required by § 52-89 ³ of the General Statutes and because the plaintiff failed to comply with § 8-8 of the General Statutes which requires that '(t)he authority issuing a citation in such appeal shall take from the appellant . . . a bond or recognizance to said board with surety, to prosecute such appeal to effect and comply with the orders and decrees of the court.'

Also, on January 7, 1969, counsel for the zoning board of appeals filed a motion for permission to withdraw his general appearance on behalf of his client for the purpose of filing a special appearance and joining the codefendant Kreske in a 'plea in abatement and to the jurisdiction.' On January 13, 1969, the plaintiff filed a document entitled 'Opposition to Plea in Abatement,' which the court (Mignone, J.) characterized as a motion to dismiss. On January 31, 1969, the court (Mignone, J.) heard the motion to dismiss, denied it and in open court ordered the plaintiff to join issue on the plea in abatement in ten days. The plaintiff filed an answer on February 13, 1969.

On February 25, 1969, the court filed its order allowing counsel for the zoning board of appeals to withdraw his general appearance in behalf of his client on condition that the file a special appearance 'for the sole purpose of joining the co-defendant in a plea in abatement and to the jurisdiction.' Pursuant thereto, a plea in abatement was filed by the zoning board of appeals on March 3, 1969, and on March 4, 1969, the plaintiff moved to reargue the motion to withdraw and for an extension of time to appeal from the order of the court granting the motion. Both motions were denied on March 17, 1969, and on April 7, 1969, the plaintiff appealed to this court from the order granting the attorney for the defendant zoning board of appeals permission to withdraw his general appearance on behalf of the zoning board of appeals and from the denial of a motion for reargument. The defendant zoning board of appeals filed a motion to dismiss the appeal on May 14, 1969, for the reason that it was not an appeal from a final judgment. The motion to dismiss was granted on June 3, 1969. Johnson v. Zoning Board of Appeals, 158 Conn. 640, 253 A.2d 495.

On October 19, 1970, the Court of Common Pleas (Williams, J.) sustained the plea in abatement of the codefendants for the reason that the citation accompanying the appeal was not signed by a commissioner of the Superior Court as acquired by General Statutes §§ 8-8 and 52-89 and the failure to comply with § 8-8 requiring the taking of a bond or recognizance with surety to prosecute the appeal. The plaintiff has appealed to this court from the sustaining of that plea.

In his appeal the plaintiff claims (1) that the court (Williams, J.) erred in rendering judgment on the plea in abatement in favor of the zoning board of appeals since that board had earlier put in a general appearance which waived the alleged defects set up in the plea in abatement; and (2) that the court (Mignone, J.) erred in allowing the zoning board of appeals to withdraw its general appearance. Because we agree with these contentions we need not consider the other assignments of error.

In order to contest jurisdiction of the person of the defendant by a plea in abatement, the defendant must enter a special appearance to contest the jurisdiction. Foley v. George A. Douglas & Bro., Inc., 121 Conn. 377, 380, 185 A. 70. If, inadvertently or otherwise, the defendant enters a general appearance, he will be deemed to have waived any defect of jurisdiction. Amato v. Campano, 141 Conn. 247, 250, 105 A.2d 185; Fine v. Wencke, 117 Conn. 683, 684, 169 A. 58.

A general appearance is a consent to the jurisdiction of the court and a waiver of all jurisdictional defects; Beardsley v. Beardsley, 144 Conn. 725, 729, 137 A.2d 752; except the competency of the court. Savings Bank of Danbury v. Downs, 74 Conn. 87, 89, 49 A. 913.

In its memorandum on the motion for permission to withdraw a general appearance and to file a special appearance, the court (Mignone, J.) correctly cites 5 Am.Jur.2d 510, Appearance, § 37, which states: 'It is generally recognized that a court, in the exercise of a sound discretion and on a showing of good cause, may permit the defendant to withdraw a general appearance, for the purpose of enabling him to interpose an objection on jurisdiction grounds.' The latter part of that same paragraph, not cited by the court, however, qualifies the general rule even further by adding that: 'On the other hand, leave to withdraw has been denied as not warranted by the showing in support of the application, or on the ground that it would be unjustly prejudicial to the plaintiff. And there are statements to the effect that leave to withdraw an appearance will not be granted merely enable the defendant to interpose objection to the service of process.'

We must thus inquire whether it was an abuse of discretion for the court (Mignone, J.) to grant the motion to withdraw under the circumstances of the present case. No finding was made by the court, but further reference to the memorandum of decision on the motion to withdraw reveals that the ground upon which the court granted the motion was a representation by the attorney that 'he had by inadvertence filed a general appearance and desired permission to withdraw this appearance solely for the purpose of filing a special appearance . . . in order to join the co-defendant in a plea in abatement and to the jurisdiction.' A lack of jurisdiction over a person may be waived and is waived by a general appearance in the action and '(b)y his general appearance the defendant submitted himself to the jurisdiction of the court.' Fine v. Wencke, supra; see Foley v. George A. Douglas & Bro., Inc., supra; see also Denslow v. Gunn, 67 Conn. 361, 366, 35 A. 264; Morse v. Rankin, 51 Conn. 326, 327.

While some courts have granted leave to withdraw an appearance for a party to an action on the ground that it was made or induced by mistake or inadvertence, no case similar to the present one has been found where an order granting permission to withdraw was upheld on review. In Hill v. Eagle Glass & Mfg. Co., 219 F. 719 (4th Cir.), reversed in part on other grounds, 245 U.S. 275, 38 S.Ct. 80, 62 L.Ed. 286, in which it appeared that an attorney who had been employed to represent only one of the several defendants had, by inadvertence, entered a general appearance for all of them, and that the trial court,...