Mangusi v. Vigiliotti
| Decision Date | 04 March 1926 |
| Citation | 104 Conn. 291,132 A. 464 |
| Court | Connecticut Supreme Court |
| Parties | MANGUSI v. VIGILIOTTI ET UX. |
Error from Court of Common Pleas, New Haven County; John R. Booth Judge.
Action of summary process by Angelo Vigiliotti and wife against John Mangusi. There was judgment against defendant in justice court, and in the court of common pleas judgment for plaintiffs was rendered, and defendant brings error. No error.
William J. McKenna, of New Haven, for plaintiff in error.
Dominic W. Celotto, of New Haven, for defendants in error.
In the original action of summary process, the plaintiff in error, Mangusi, was the defendant, and Vigiliotti and wife were plaintiffs. Both Mangusi and Vigiliotti and wife reside in the town of New Haven. The complaint alleged that on May 15, 1923, one Willard A. Robinson executed a lease to Mangusi of certain premises in the town of North Haven. In the lease, a copy of which is annexed to the complaint, the term stated is four years from January 1, 1924. Between the signatures of Robinson and Mangusi, the signature of Angelo Vigiliotti appears; but it is not claimed that he signed in any other capacity than as a witness. The lease was not otherwise witnessed, nor was it acknowledged, and it was not recorded until October 25, 1924. The complaint further alleged that the premises were purchased by Vigiliotti and wife from Robinson on November 23, 1924, and that on January 7, 1925, they gave Mangusi due notice to quit possession on or before January 19, 1925.
The summons in the summary process action was made returnable January 27, 1925, before Waldo Blakeslee, Esq., a justice of the peace in North Haven. Mangusi filed an answer and amendment thereto, both dated January 29, 1925, including a special defense alleging, in substance, that the Vigiliottis purchased with notice of and subject to the lease, and that the lease, although not acknowledged or attested, was validated by a provision of the general validating act of 1923. To this special defense Vigiliotti and wife interposed a demurrer. Subsequently, without, so far as appears, any determination of the demurrer, Vigiliotti and wife filed a reply to the special defense, denying all the matters therein alleged. Judgment for Vigiliotti and wife was rendered February 25, 1925, by Joseph S. Carusi, justice of the peace. A bill of exceptions was seasonably filed, and the parties were at issue in the court of common pleas, with the result above stated.
The bill of exceptions is presumed to place on the record all the material facts necessary for a review of the questions of law raised on the writ of error (Lamenza v. Shelton, 114 A. 96, 96 Conn. 403), but is deficient in this respect. It is fairly deducible therefrom, however, that the action was transferred from Blakeslee to Carusi by stipulation of the parties; that Carusi was, at the time, a justice of the peace residing in the town of New Haven; and that there were then several qualified justices of the peace residing in North Haven.
Mangusi contends that the procedure and jurisdiction in summary process actions are exclusively regulated by 6119, and that section 5426 has no application thereto. However, section 5426 is expressly made available in " any civil action," is not included among the sections enumerated in section 5658 as not applicable to summary process, and is not inconsistent with section 6119, which, it will be noted, contains no provision for transfer in case of disqualification or other cause, and the two may well stand together. McNamara v. Rogers, 36 Conn. 205. The transfer was therefore lawful.
Mangusi also assigns as error that judgment was rendered upon the issues raised by the complaint, answer, and reply, without determination first being made of the demurrer to the special defense. The filing of the reply operated as a withdrawal of the demurrer previously interposed by the same party, and was properly so treated. Lewisohn v. Stoddard, 63 A. 621, 78 Conn. 575; 31 Cyc. pp. 603, 604.
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