Schoeller's Estate v. Becker
| Decision Date | 18 December 1975 |
| Docket Number | No. 26372,26372 |
| Court | Connecticut Superior Court |
| Parties | ESTATE of V. Donald SCHOELLER v. Carl A. BECKER et al. |
Zone & Bernstein, Stamford, for plaintiff.
Durey & Pierson, Stamford, specially appeared for named defendant and defendant Anne Becker.
This is an action on a promissory note and to set aside an alleged fraudulent conveyance. Suit was brought in the name of the Estate of V. Donald Schoeller, deceased, as plaintiff. Two of the three defendants appeared specially and filed a motion to erase the action from the docket on the ground that the 'Estate of V. Donald Schoeller' is not a proper party plaintiff to confer jurisdiction on the court. Thereafter the plaintiff filed a motion for permission to amend the complaint to name 'Michael Schoeller, Executrix (sic) of the Estate of V. Donald Schoeller, late of Norwalk' as plaintiff. Since these motions relate to the same underlying issue, they will be treated together.
It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue. 59 Am.Jur.2d, Parties, §§ 20, 21. Bar Association v. Connecticut Bank & Trust Co., 20 Conn.Sup. 248, 262, 131 A.2d 646, 654. Not having a legal existence, it can neither sue nor be sued. Vonchina v. Estate of Turner, 154 Cal.App.2d 134, 315 P.2d 723; 2 Locke & Kohn, Conn.Probate Practice § 375.
Since there is no legal party plaintiff before the court to prosecute the action, the court is without jurisdiction and the motion to erase must be granted. Orange County Trust Co. v. Estate of Takowsky, 119 Ga.App. 366, 166 S.E.2d 913. That being the case the defect cannot be cured by amendment. In the same factual situation of an action brought in the name of an estate as plaintiff it has been held that the suit is nullity and that the jurisdictional defect cannot be cured by amendment or waiver. Ibid.
The plaintiff's reliance on the case of World Fire & Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 136 A. 681, is misplaced. In that case the plaintiff sued the 'Alliance Sandblasting Company' describing it as a corporation when in fact it was the...
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Isaac v. Mount Sinai Hosp., 2505
...Estate of Turner, 154 Cal.App.2d 134 [315 P.2d 723 (1957) ]; 2 Locke & Kohn, Conn. Probate Practice § 375." Estate of Schoeller v. Becker, 33 Conn.Sup. 79, 79-80, 360 A.2d 905 (1975). General Statutes § 52-555 creates a cause of action that may be maintained only by an executor or administr......
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Southern Trucking Service, Inc. v. Mississippi Sand and Gravel, Inc., 55960
...this proposition, however, involve entities which would not have the right to sue under any name. E.g., Estate of Schoeller v. Becker, 33 Conn.Supp. 79, 360 A.2d 905, 906 (1975) (estate has no standing to sue); Zisser v. Bronx Cigar Corp., 91 Misc.2d 1025, 399 NYS2d 109, 110 (N.Y.C. Civ.Ct.......