Sav. Bank of Danbury v. Downs

• Decision Date: 23 July 1901
• Citation: 74 Conn. 87,49 A. 913
• Court: Connecticut Supreme Court
• Parties: SAVINGS BANK OF DANBURY v. DOWNS.

49 A. 913

74 Conn. 87

SAVINGS BANK OF DANBURY

v. DOWNS.

Supreme Court of Errors of Connecticut.

July 23, 1901.

Appeal from superior court, New Haven county; Alberto T. Roraback, Judge.

Civil action, in the nature of a scire facias, by the Savings Bank of Danbury against J. Willis Downs, brought on a judgment of the superior court for Fairfield county. From a judgment dismissing the action for want of jurisdiction, the plaintiff appeals. Affirmed.

The writ and complaint followed, in general, form 268 in the Practice Book, except as to the authority signing the process. The defendant filed, in 1899, an answer to the merits, and in 1901 a motion to erase, because (1) the writ was taken out from, and signed by the assistant clerk of, the superior court for New Haven county, and (2) required the defendant to appear before said court for New Haven county, and not the superior court for Fairfield county.

John K. Beach and J. Moss Ives, for appellant Charles F. Bollman, for appellee.

BALDWIN, J. Under our practice until 1875 all writs of scire facias against garnishees were of the form known as "judicial." Jarvis v. Rathburn, Kirby, 220; 1 Swift's Dig. *583; 2 Swift's Dig. 586; Gen. St. 1866, p. 2, § 4; Id. p. 67, § 293. They might direct an attachment of the defendant's property, out this was only by force of a statute. Ensworth v. Davenport, 9 Conn. 390. In Gen. St 1875, p. 396, § 1, it was provided that "mesne process in civil actions shall be, in actions at law including writs of scire facias, a writ of summons or attachment." This made it a civil action at law, if it were not such before. White v. School Dist, 45 Conn. 59. Certain judicial writs were excepted from the opera tion of portions of the practice act, in 1879, but proceedings of scire facias were not so mentioned, and the forms prepared for use under it describe them as to be commenced by an ordinary writ accompanied by a complaint Practice Book, p. 9, § 32; Id. p. 154, form 268. Inasmuch, however, as the object of a scire facias founded on a judgment upon a foreign attachment is to enforce the judgment against the garnishee, our statutes have always required that it be made returnable before the court in which that judgment was rendered. Smyth v. Ripley, 32 Conn. 156; (Jen. St. 1875, p. 462, § 39; Gen. St. 1888, p. 292, § 1253. It stands in this respect upon somewhat the same ground as an execution, and for similar reasons. Each is a step in the enforcement of the judgment, and the whole history of any cause, from the outset to the close, ought to be found in the files and records of the court to which it was brought or into which it may have been legally removed. Smith v. Hall, 71 Conn. 427. 432, 42 Atl. 86. The irregularity in the signature of the writ was waived by a general appearance and making answer. Woodruff v. Bacon, 34 Conn. 182.

But the summons to the wrong court could not be the subject of a waiver. Jurisdiction cannot be conferred upon courts by the mere consent of parties. For the superior court for one county to hold a garnishee by a writ of scire facias to the payment of a judgment rendered in the superior court for another...