Reilly v. State

Decision Date20 November 1934
Citation175 A. 582,119 Conn. 217
CourtConnecticut Supreme Court
PartiesREILLY v. STATE.

Error from Superior Court, Fairfield County; Newell Jennings Judge.

Action by the state of Connecticut against Harriet A. E. Reilly, as trustee of the estate of Francis A. Coughlin. The State recovered judgment in the Superior Court, and defendant brings error. On demurrer to the plea in abatement to the writ of error.

Demurrer sustained and plea overruled.

Henry E. Shannon, of Bridgeport, for plaintiff in error.

H Roger Jones, Asst. Atty. Gen., and Warren B. Burrows, Atty Gen., for defendant in error.

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

MALTBIE, Chief Justice.

This is a writ of error brought to this court from a judgment of the superior court. The record of the original action attached to the writ discloses the following situation: By writ dated March 10, 1933, the state brought an action against the plaintiff in error, as trustee of the estate of Francis A. Coughlin. In the complaint it was alleged that since 1914 Coughlin had been an inmate of the Connecticut State Hospital; that he had been and was without funds or property with which to pay for his support there; that from 1914 to April 30, 1921, William Anderson had made contributions for his support; that thereafter the city of Bridgeport made contributions for his support as a pauper, at the rate provided by the statute; that since 1914 the state has been put to expense for his support; that since 1921 Anderson has died, leaving a will in which he bequeathed $3,500 to the plaintiff in error in trust for Coughlin during his life, with directions to her to expend or appropriate in her discretion any or all of the income or principal for his comfortable support and if he recovered his health to pay over to him any part of the fund which had not been expended, with a gift at his death of any unexpended remainder to certain named legatees; and that the plaintiff in error, although she was required by law to provide support for Coughlin and had agreed to pay the state for his support at the hospital, had failed to do so. The writ and complaint were personally served upon the plaintiff in error but she made default of appearance. Thereafter the state moved for judgment and the trial court gave judgment for it to recover $2,811.17 with costs taxed at $68.94. In the writ of error the errors assigned, apart from one too general in form to require attention, are to the effect that, under Anderson's will, the fund in the hands of the plaintiff in error could not legally be taken to repay the state for the expense of supporting Coughlin at the hospital and that the trial court erred in not remitting the parties for relief to the court of probate. The state has filed a plea in abatement upon several grounds and to the plea the plaintiff in error has demurred.

One ground stated in the plea is that it does not appear that the state has consented to become a party to the action and without that consent the action may not be prosecuted against it. The rule undoubtedly is that the state cannot be made a party defendant to an action without its consent; but if the state itself invokes the jurisdiction of the court to secure affirmative relief, it subjects itself to any proper cross demand involved in the subject-matter of the action. State v. Kilburn, S1 Conn. 9, 12, 69 A. 1028, 129 Am.St.Rep. 205; State v. Anderson, 82 Conn. 392, 394, 73 A. 751; Davis v. Naugatuck Valley Crucible Co., 103 Conn. 36, 130 A. 162. A fortiori, by bringing an action, the state subjects itself to the procedure established for its final and complete disposition in the courts, by way of appeal or otherwise. State v. Moore, 77 W.Va. 325, 328, 87 S.E. 367; Colorado & S. Ry. Co. v. People, 53 Colo. 571, 573, 128 P. 886. Had the plaintiff in error appealed from the judgment rendered against her, the state clearly could not have interposed the claim of immunity. But here it relies upon the claim that a writ of error, unlike an appeal, has been said by us to be an independent proceeding, and hence the bringing of the original action would not constitute consent to subject itself to the action of the court upon the writ. A writ of error is an independent action in the sense that it must be served and returned as original process. Chevalier v. Wakefield, 85 Conn. 374, 375, 82 A. 973; Michelin v. MacDonald, 114 Conn. 582, 584, 159 A. 636. But it is no less a direct attack upon the judgment in the original action than is an appeal. A similar situation exists where a petition for a new trial is brought under section 5701 of the General Statutes. Such a petition must be served and returned as original process, but we have pointed out that it is really a part of or ancillary to the original action. Gannon v. State, 75 Conn. 576, 377, 54 A. 199. Indeed, this becomes apparent when it is considered that the original judgment cannot be pleaded in bar of the petition ( Alling, Attorney-General, v. Levitt, 112 Conn. 586, 591, 153 A. 166; DeMichiel & Brothers v. Sequin, 114 Conn. 736, 159 A. 889); and the same thing is true in regard to a writ of error. That the writ is not a proceeding independent of the original action in any broad sense is apparent when we consider that the effect of a reversal is to destroy the judgment in that action, to restore the parties to the position in which they were before the judgment was rendered, and to permit the re-entry of the case in the trial court for disposition as though no judgment had been entered. Allen v. Adams, 17 Conn. 67; Vila v. Weston, 33 Conn. 42, 50; Woodruff v. Bacon, 35 Conn. 97, 102; Brennan v. Berlin Iron Bridge Co., 73 Conn. 415, 47 A. 668; Id., 75 Conn. 393, 396, 53 A. 779; Rogers v. Hendrick, 85 Conn. 271, 275, 82 A. 590. When the state brought the original action, it waived its immunity as regards this writ of error just as much as it would have waived it had the plaintiff in error appealed.

Another ground upon which the plea in abatement rests is that the plaintiff in error, having made default of appearance in the original action, cannot now prosecute this writ. It may be that ordinarily a defendant who suffers a judgment by default is precluded from attacking that judgment by appeal or writ of error. See 3 C.J. 604. In this case, however, we have a close counterpart to Shaw v. Spelke, 110 Conn. 208, 147 A. 675. There the plaintiff in error had individually and as trustee consented to the original judgment; but we held that he might prosecute a writ of error from it. It appeared there that the beneficiaries of the trust had not been parties to the original action and that their rights were adversely affected by the judgment; and we held that the exercise of a proper solicitude for them by the court dictated that they should not suffer by reason of...

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