McCoy v. Raucci

• Citation: 239 A.2d 689,156 Conn. 115
• Court: Supreme Court of Connecticut
• Decision Date: 06 February 1968
• Parties: John McCOY, Executor (ESTATE of Fred WILLIAMS) v. Paul J. RAUCCI.

Page 689

239 A.2d 689

156 Conn. 115

John McCOY, Executor (ESTATE of Fred WILLIAMS) v. Paul J. RAUCCI.

Supreme Court of Connecticut.

Feb. 6, 1968.

Allan R. Johnson, Bridgeport, with whom, on the brief, were Gregory C. Willis and Edward J. Holahan, Jr., Bridgeport, for appellant (defendant).

Raymond F. Ross, Bridgeport, for appellee (plaintiff).

Before ALCORN, HOUSE, THIM, RYAN and COVELLO, JJ.

ALCORN, Associate Justice.

On October 16, 1963, the decedent, Fred Williams, a resident of Bridgeport, made his will, naming John M. McCoy and Evelyn D. Roobroeck as executors. On January 25, 1964, Williams was struck and injured by an automobile owned and driven by the defendant. Williams died four days later. McCoy offered the decedent's will for probate in the Probate Court for the district of Bridgeport, and, on March 5, 1964, that court duly admitted the will to probate and confirmed McCoy as executor, Evelyn D. Roobroeck having declined to serve. By a writ and complaint dated August 5, 1964, McCoy, acting as executor of the Williams estate, brought this action against the defendant, seeking to recover damages for the death of Williams. The defendant filed an answer which either denied or pleaded no knowledge of each allegation of the complaint and, in a special defense, alleged contributory negligence on the part of Williams. On October 4, 1964, McCoy submitted a copy of the decedent's will to the prothonotary of the Superior Court for the province of Quebec, in the district of Hull, Canada, and was appointed executor by that court. Thereafter, the present action for damages was fully tried on the issues framed by the pleadings, and judgment was rendered for the plaintiff.

At the conclusion of the trial, the defendant, for the first time, orally sought to raise an issue as to McCoy's status to maintain the action. The claim was that the court lacked jurisdiction of the subject matter and the parties because the decedent's domicil was in Canada, and consequently the executor's appointment by the Bridgeport Probate Court should have been ancillary. Upon the premise that the defendant was entitled to raise an issue of jurisdiction at any time, the plaintiff did not object, and evidence was offered by the parties on the subject of the decedent's domicil. The court decided that the defendant's attack was not timely but that, nevertheless, as a conclusion of fact, the decedent was domiciled in Bridgeport at the time of his death as the Probate Court had decided. This aspect of the case furnishes the principal issue in the defendant's appeal from the judgment.

If the plaintiff had objected when the issue was raised, as he properly could have done, the court doubtless would have refused to entertain the question. The attack was upon the capacity in which the plaintiff undertook to sue rather than an attack upon the jurisdiction of the court. 'Jurisdiction is the power in a court to hear and determine the cause of action presented to it. Jurisdiction must exist in three particulars: the subject matter of the case, the parties, and the process.' Brown v. Cato, 147 Conn. 418, 422, 162 A.2d 175, 177. It cannot successfully be urged that the court lacked the power to hear and determine an action for wrongful death brought under § 52-555 of the General Statutes. No question is raised as to the process, and the parties were not only personally present but had been fully heard on the issues presented by the pleadings. The defendant's only objection is that the plaintiff should have been before the court in the capacity of an ancillary executor rather than as an executor. Such a claim, if it had any validity, came too late. The design of the rules of practice is to have formal and technical objections made known at an early stage of the proceedings so that, if necessary, a plaintiff may amend and proceed anew. Loomis v. Hollister, 75 Conn. 275, 279, 53 A. 579; Donaghue v. Gaffy, 53 Conn. 43, 52, 2 A. 397.

The complaint alleged that the plaintiff was acting as the duly qualified and appointed executor of the decedent's estate. The identity of the appointing court was not alleged. To this allegation the defendant answered that he had no knowledge or information. This answer did not raise an issue as to the plaintiff's capacity to sue. Lewis v. Scoville, 94 Conn. 79, 84, 108 A. 501; Merwin v. Richardson, 52 Conn. 223, 233. The decedent having died a resident of Bridgeport, the plaintiff exhibited the will to the Probate Court for the district of Bridgeport, as General Statutes § 45-163 required him to do, and that court, as it was empowered to do, approved the will and approved the plaintiff named therein as executor. Terry's Appeal, 67 Conn. 181, 185, 34 A. 1032. As executor, the plaintiff was empowered to sue for the injuries resulting in the decedent's death. General Statutes § 52-555. And that right existed regardless of whether his appointment issued from a court in this state or in a foreign jurisdiction. Hartford & N.H.R. Co. v. Andrews, 36 Conn. 213, 215. Actually, he held an appointment as executor from both a local and a foreign court and from the only courts which, so far as the record discloses, had any concern, ancillary or otherwise, with the decedent's estate. Any attack on the capacity in which the plaintiff undertook to sue should have been made in a preliminary pleading or in the defendant's answer. General Statutes § 52-93. Since the defendant made no specific denial of the plaintiff's right to sue as executor as required by § 52-93, he was precluded from doing so in the manner and at the time attempted. Giannattasio v. Silano, 115 Conn. 299, 301, 161 A. 336. We are not called upon to decide whether the attack would have had any merit if it had been properly made.

The trial court was correct in concluding that the claimed jurisdictional attack was not timely. The basic issue involved was, nevertheless, conclusively determined by the court as a question of fact. After hearing the evidence presented by the parties, the court concluded that the decedent was, at the time of his death, a resident of and domiciled in Bridgeport. That conclusion is amply supported by an extensive finding of subordinate facts, to which the defendant has not assigned error. Since the defendant has sought no correction in these subordinate facts, they stand unchallenged. Bridgeport Hydraulic Co. v. Sciortino, 138 Conn. 690, 692, 88 A.2d 379. Consequently, the record discloses, as a fact, that the plaintiff is the duly qualified executor of the estate of the decedent, whose residence and domicil was in Bridgeport.

We turn now to the other issues presented by the defendant's appeal. The court's finding is not subject to correction in any material respect. It discloses, in substance, that at about 3 p.m. on January 25, 1964, the decedent waited at the corner of Capitol and Madison Avenues in Bridgeport for the traffic...