Levy v. Metropolis Mfg. Co.

• Decision Date: 06 March 1901
• Court: Connecticut Supreme Court
• Parties: LEVY et al. v. METROPOLIS MFG. CO. et al.

48 A. 429

73 Conn. 559

LEVY et al.

v. METROPOLIS MFG. CO. et al.

Supreme Court of Errors of Connecticut.

March 6, 1901.

Appeal from court of common pleas, New Haven county; John P. Studley, Judge.

Action by Dora Levy and another against the Metropolis Manufacturing Company and another. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Action claiming an injunction to restrain defendants from levying an execution on a judgment of a justice court brought to the court of common pleas for New Haven county on the first Tuesday of June, 1899. Defendants filed plea in abatement to the writ. Plaintiffs demurred. Demurrer sustained. Upon trial on the merits, judgment was rendered for plaintiffs. Defendants appealed. No error.

The plaintiffs were pawnbrokers and dealers in secondhand goods. The defendant J. Peter Dejon was a deputy sheriff. The defendant the Metropolis Manufacturing Company was a corporation engaged in selling rugs and other goods by absolute sale and on the installment plan, through agents, and employed a large number of agents in its business. Among these agents was one Howard C. Payne, who on February 7, 1898, while working from the team of the defendant corporation, and under the immediate charge of its foreman, sold and delivered to the plaintiffs for $1.40 two rugs, and received payment therefor. Said rugs cost the defendant $5, and had never been in use, but had the appearance of wear from exposure and handling. Four days later the defendant sent one of its employes with said Payue to the plaintiffs to demand the rugs as the property of the defendant. This employe told the plaintiffs that the agent Payne had sold the rugs too cheap. The plaintiffs replied that, if so, the defendant could have them back for what they bad paid for them. The employe then left, saying he would return and take them. Subsequently the defendant made written demand for the rugs, and, on refusal of plaintiffs to deliver except by way of the trade back, brought an action for conversion before a Justice of the peace. The Levys appeared and defended, and the ease was adjourned from time to time until April 14, 1899, when the parties were heard upon a demurrer by the corporation to a plea in abatement filed by the Levys. The justice notified the parties that when he had reached his decision on the demurrer he would notify counsel what it was, and would then consult them as to fixing a time for trial. After the justice had reached his decision on the demurrer, he fixed April 22d as the day for trial on the merits. Notice of the day of trial was received by the attorney for the corporation, but no notice was ever given the Levys, or either of them, or their attorney, and neither the Levys nor their attorney knew there was to be a hearing of said cause on said day. The corporation appeared before the justice on April 22d, and took judgment against the Levys by default, and the justice issued execution, and delivered it to the present defendant Dejou for service. The first knowledge the Levys had of such hearing was when the officer made demand on the execution. The Levys then made demand on the justice to reopen the judgment and recall the execution, which was refused. Thereupon they brought this action, claiming an injunction.

The present complaint sets out the facts as to the justice judgment and alleges that the plaintiffs have a sufficient defense to that action.

The defendant corporation filed a plea in abatement to the writ to which the plaintiffs demurred. This demurrer was sustained. The defendant corporation's answer admits all the allegations of the complaint, except the allegations that the justice had agreed to consult the attorneys in fixing a day for trial on the merits, that the Levys had no notice of the time fixed by the justice, and that the Levys had a sufficient defense to the action before the justice, which allegations were denied; and further alleges that a notice of the day fixed for trial by the justice was sent by mail to the attorneys for the Levys, and some other matter, which was expunged by order of court. The court found the issues for the plaintiffs, and issued an injunction as claimed. At request of defendants, the court (Hubbard, J.) made a finding stating the facts on which the judgment was based, and also the subordinate facts from which the ultimate conclusions of fact were drawn, and stating the action of the court in ruling on evidence and on claims of law made on the trial. The appeal assigns error in sustaining the demurrer to the plea in abatement: in expunging portions of the answer; in rendering judgment on a complaint insufficient to support it; in reaching the conclusions of fact from the subordinate facts found; in overruling claims of law made on the trial; in rejecting the testimony of Caleb M. Morse; and claims a correction in the finding of facts.

Caleb A. Morse and Nehemiah Candee, for appellants.

Robert C. Stoddard, for appellees.

HAMERSLEY, J. (after stating the facts). The cause of abatement alleged in the plea of the defendant corporation is defective service, and the particular cause is thus stated: Said writ was not otherwise served on the defendant corporation than by...