Ragali v. Holmes

• Decision Date: 09 July 1930
• Citation: 111 Conn. 663,151 A. 190
• Court: Connecticut Supreme Court
• Parties: RAGALI v. HOLMES et al.

151 A. 190

111 Conn. 663

RAGALI v. HOLMES et al.

Supreme Court of Errors of Connecticut.

July 9, 1930

Appeal from Superior Court, Fairfield County; Edward M. Yeomans Judge.

Mary A Ragali was denied a license to conduct a hairdressers' and cosmeticians' business by Mary B. Holmes and others the Board of Hairdressers and Cosmeticians, and she appealed to the superior court, which overruled a demurrer to defendant's motion to dismiss, and dismissed the appeal and plaintiff appeals.

Error, judgment set aside, and cause remanded.

Joseph G. Shapiro, Harry Allison Goldstein, and Charles S. Brody, all of Bridgeport, for appellant.

Bernard A. Kosicki, of Middletown, and Benjamin W. Alling, Atty. Gen., for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

WHEELER, C.J.

The motion to erase and that to dismiss are used in our practice somewhat interchangeably, although the better practice is the use of the motion to erase. Galvin v. Birch, 98 Conn. 228, 232, 118 A. 826; Pettee v. Hartford-Conn. Trust Co., 105 Conn. 595, 610, 136 A. 111. Such a motion, if sustained, unlike the demurrer to a pleading, is a final judgment. It will lie for want of jurisdiction which " appears plainly on the face of the record." Norton v. Shore Line El. Ry. Co., 84 Conn. 24, 31, 33, 78 A. 587, 590; Reilly v. Pepe Co., 108 Conn. 436, 443, 143 A. 568, 571, and cases cited, or where it appears upon its face the appellant has not prosecuted his appeal with due diligence, Murphy v. Elms Hotel, 104 Conn. 351, 354, 133 A. 106; Bronson v. Mechanics' Bank, 83 Conn. 128, 75 A. 709. " A motion to erase under our practice serves the same purpose as a demurrer. It admits all well-pleaded facts and invokes the existing record and must be decided upon that alone." Reilly v. Pepe Co., supra. The same rule governs the motion to dismiss.

In disregard of this established rule, the motion to dismiss in this case alleges that this cause of action is the same as that contained in another action brought on a previous date and is between the same parties, and that judgment was therein rendered after full hearing upon the issues which were the same as those in this action. None of these facts appear on the face of the record. The motion to dismiss was not the proper pleading. To this motion the plaintiff demurred. No such procedure is known to our practice. The motion to dismiss must be decided upon the...