Leventhal Furniture Co., Inc. v. Crescent Furniture Co., Inc.

• Decision Date: 14 May 1936
• Citation: 121 Conn. 343,184 A. 878
• Court: Connecticut Supreme Court
• Parties: LEVENTHAL FURNITURE CO., Inc., v. CRESCENT FURNITURE CO., Inc.[*]

184 A. 878

121 Conn. 343

LEVENTHAL FURNITURE CO., Inc., v. CRESCENT FURNITURE CO., Inc.^[*]

Supreme Court of Errors of Connecticut.

May 14, 1936

Appeal from Court of Common Pleas, Fairfield County; Edward J Quinlan, Judge.

Action by Leventhal Furniture Company, Incorporated, against Crescent Furniture Company, Incorporated, upon a claim alleged to have been assigned to the plaintiff. From a judgment sustaining defendant's plea in abatement and rendering judgment for defendant, plaintiff appeals.

No error.

David R. Lessler, of Bridgeport, for appellant.

Arthur B. Weiss, of Bridgeport, for appellee.

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

MALTBIE, Chief Justice.

The plaintiff brought this action claiming to own the debt in suit by virtue of an assignment made to it by Harry M Leventhal. It is alleged in the complaint that on December 18, 1934, Leventhal, in consideration of $1 and other valuable considerations, assigned the claim to the plaintiff by a written assignment annexed to the complaint and that the plaintiff was the actual bona fide owner of the claim. The defendant filed simultaneously a plea to the jurisdiction and a plea in abatement containing the same allegations, to wit: That the defendant did not reside within this jurisdiction; that the plaintiff was not the bona fide owner of the claim sued upon; and that the sole purpose of the assignment was to give the court jurisdiction over a certain judgment claim of the defendant within this jurisdiction. The plaintiff admitted the first allegation in each plea but denied the remaining allegations. Section 5531 of the General Statutes provides that: " The assignee and equitable and bona fide owner of any chose in action, not negotiable, may sue thereon in his own name; but he shall in his complaint allege that he is the actual bona fide owner thereof, and set forth when and how he acquired title thereto." The trial court heard evidence upon the pleas concluded that the plaintiff was not the actual, real bona fide owner of the claim and adjudged that the writ abate and be dismissed.

From the finding the following facts appear: Leventhal, until May 13, 1933, had been doing business under the trade-name of " Leventhal Furniture Company." On that day the plaintiff corporation was organized, and practically all of the capital stock in it is owned by Leventhal and his wife. Leventhal was at the time the corporation was organized personally indebted to the defendant, a foreign corporation. On May 14, 1934, the defendant commenced an action against him. A counterclaim was filed in which it was alleged that the defendant was indebted to Leventhal. At the trial the counterclaim was withdrawn due to the inability of counsel to produce certain evidence necessary to support the claim, and judgment was entered for the defendant, plaintiff in that action, to recover the full amount of the debt alleged. The action was defended by Leventhal in his own name, and at no time during the trial and prior to the plea in abatement in this action did he claim that he was not the bona fide owner of the claim or that any assignment had been made prior to December 18, 1934. On that date, which was the day of the trial, Leventhal executed the assignment of the claim here in suit to the plaintiff. The only consideration for the assignment was the giving of a check for $1, made by Leventhal and payable to himself, which was delivered as part payment on account thereof. On December 21, 1934, the plaintiff commenced the present action, directing in the writ that it be served upon Leventhal and Richard Oppel, Incorporated, as garnishees, and notice of the pendency of the action was given the defendant by registered mail. At the time service was made the only asset of the defendant which was attached was the judgment it had previously obtained against Leventhal. Leventhal then made application to the court under the statute that execution of the judgment secured by the defendant against him be stayed on the ground that it had been garnished, and the court granted a stay.

The plaintiff seeks to make a large number of additions to the finding and attacks certain of the statements in it. As far as the claimed additions are concerned, many of them have no basis on the record except certain evidence which was admitted and later stricken out by the court, and the others are either incorporated in substance in the finding or are not relevant to the issues determinative of the case. That the summary of evidence in the record states that certain evidence was offered does not mean that the trial court necessarily accepted that evidence as true. No change can be made in the finding which would materially affect the issues decisive of the case.

The plaintiff claims that the pleadings of the defendant were so fatally defective as not to raise the issue decided because of the simultaneous filing of the plea in abatement and that to the jurisdiction. Sherwood v Stevenson, 25 Conn. 431, 442, states the common-law rule that where a plea to the jurisdiction and a plea in abatement are filed simultaneously, the former is regarded as superseded by the latter. But when our Practice Act was adopted in 1879 it provided that, " If the defendant shall desire to plead to the jurisdiction or in abatement, or both, he shall take such exceptions in one plea," in a form incorporated in the statutes. That form reads as follows: " The defendant pleads in abatement, because (Here state all the particular exceptions to the jurisdiction, and causes of abatement, and how the plaintiff might, or should, have brought his action in order to avoid them, if they are such as could have been avoided)." And this provision has ever since continued. General Statutes, § 5506. Nor do our rules distinguish between the two pleas. ...