Lusas v. St. Patrick's Roman Catholic Church Corp. of Waterbury

• Decision Date: 01 July 1937
• Citation: 123 Conn. 166,193 A. 204
• Parties: LUSAS v. ST. PATRICK'S ROMAN CATHOLIC CHURCH CORPORATION OF WATERBURY.
• Court: Connecticut Supreme Court

193 A. 204

123 Conn. 166

LUSAS v. ST. PATRICK'S ROMAN CATHOLIC CHURCH CORPORATION OF WATERBURY.

Supreme Court of Errors of Connecticut.

July 1, 1937

Appeal from Court of Common Pleas, District of Waterbury, New Haven County, Edward J. Finn, Judge.

Action by Petronella Lusas against the St. Patrick's Roman Catholic Church Corporation of Waterbury, Connecticut. From a judgment of the court of common pleas for the judicial district of Waterbury, restoring the case to the docket, the defendant appeals.

Case remanded for further action according to law.

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

Walter E. Monagan and Walter E. Monagan, Jr., both of Waterbury, for appellant.

Robert J. Woodruff and Edward S. Snyder, both of New Haven, for appellee.

MALTBIE, Chief Justice.

On November 25, 1936, before this case came on for hearing, a " withdrawal of action" was filed, signed by both parties by their attorneys, stating that the action " is hereby withdrawn without further costs to either party." On January 2, 1937, the plaintiff, by other attorneys than the one who signed the withdrawal, filed a motion to restore the case to the docket, and on February 2, 1937, the court granted the motion. The defendant has filed an appeal from the order restoring the case to the docket.

The granting by the trial court of the motion was not a final judgment from which an appeal could properly be taken. Glazer v. Rosoff, 120 Conn. 120, 122, 179 A. 407. We have hesitated to consider the issues argued before us. But the appellee has not raised the question; the issues concern the right of the trial court to proceed with the case; and as our examination of it has brought us to the conclusion that that court does not have that right, we have decided to express our opinion upon the questions argued before us.

The errors assigned are that the court was without jurisdiction to restore the case to the docket, and that the plaintiff's remedy, if any, was not by the motion it made. We are not concerned upon this appeal with the question whether or not the court was justified upon such facts as were before it in granting the motion, a question which we could not review in the absence of a finding. The appeal raises only the question of the jurisdiction of the court of act in the premises and of the propriety of the remedy questions which are presented upon the face of the record and which can be determined without a finding.

Under our statutes a plaintiff has a right to withdraw an action without leave of court at any time before the return day, in which event the clerk is to enter it " on the docket of the court, *** with a note of the withdrawal," General Statutes, § 5496; he may withdraw it without leave of court after the return day but before the commencement of a hearing upon the merits and thereafter he may withdraw it only " by leave of court for cause shown," section 5494; but in case of a withdrawal after the return day, the plaintiff may subject himself in certain cases to a judgment for costs section 5495. Previous to the adoption of the Practice Act, the plaintiff might withdraw the entire action, even though a set-off had been pleaded. Anderson v. Gregory, 43 Conn. 61, 63. Under the act and the rules adopted in compliance with it, the withdrawal by a plaintiff does not impair the right of the defendant to prosecute a cross-complaint or counterclaim, Practice Book 1934, p. 49, § 114; Boothe v. Armstrong, 76 Conn. 530, 57 A. 173; and we have held that, as in such a case the action is still pending, the plaintiff may be permitted, despite the withdrawal, to reinstate his claim. Boothe v. Armstrong, 80 Conn. 218, 67 A. 484.

Where a case is withdrawn after the commencement of a hearing " by leave of court for cause shown," the order of the court granting permission to withdraw is essential to prevent further action in the case, and that order, like any other, can of course be vacated or modified during the term at which it is made. Where a case is voluntarily withdrawn without such permission, as it may be before the commencement of a hearing, the court cannot proceed further with it until some further steps are taken in the matter, any more than it can in a case where final judgment has been rendered or where an action has been erased from the docket. But the case is, in all these situations, still in court, though removed from the docket of active cases, and this is indicated by the language of section 5496 of the General Statutes that, in the case of a voluntary withdrawal before return day, the clerk shall enter it " on the docket of the court." Thus during the same term a judgment may be opened and a further hearing had, or a case erased from the docket may be restored; but such proceedings may not ordinarily be had after the expiration of the term at which the judgment was rendered or the order made, because the court would lack jurisdiction then to proceed. Foley v. Douglas & Bro., Inc., 121 Conn. 377, 185 A. 70. In that case we said (121 Conn. 377, at page 380, 185 A. 70, 71) that the basis of the principle last stated was that, " in the interest of the public as well as that of the parties there must be fixed a time after the expiration of which the controversy is to be regarded as settled and the parties freed of obligation to act further in the matter by virtue of having been summoned into or having appeared in the case" ; and we pointed out that the lack of jurisdiction was one over the parties, which might be waived and would be waived if a party thereafter made a general appearance in the case.

The situation as regards the jurisdiction of the court to proceed further in the matter after an action has been voluntarily withdrawn is strictly analogous to that presented after the rendition of a final judgment or the erasure of a case from the docket. The court, unless it is restored to the docket, cannot proceed with it further, but, the action still being in court, it has not gone entirely beyond the jurisdiction of the court to act in it. Thus if the parties should stipulate that despite the withdrawal the case should continue on the docket, or if it should be restored on motion of the plaintiff and the defendant should thereafter expressly or by implication waive any claim of lack of jurisdiction, the court could properly proceed with it. Weisguth v. Supreme Tribe of Ben Hur, 272, Ill. 541, 543, 112 N.E. 350; Young Mines Co., Ltd., v. Blackburn, 22 Ariz. 199, 204, 196 P. 167. There is no reason why the court has not jurisdiction upon a proper showing to restore to the active docket a case which has been voluntarily withdrawn, just as it can open a judgment or restore to the docket a case which has been erased.

While there is some conflict in the decisions in other jurisdictions, the weight of authority is that, where the withdrawal, or dismissal, as it is more usually called, is upon order of the court, it can, upon a proper showing subsequently reinstate the case, ...