Smith v. Jewell

• Decision Date: 09 March 1899
• Court: Connecticut Supreme Court
• Parties: SMITH et al. v. JEWELL et al.

42 A. 657

71 Conn. 473

SMITH et al.

v. JEWELL et al.

Supreme Court of Errors of Connecticut.

March 9, 1899.

Appeal from court of common pleas, Litchfield county; Gideon H. Welch, Judge.

Action by Wellington B. Smith and another against Frederick A. Jewell and others to recover the amount of a penalty for the violation of a temporary injunction obtained by plaintiffs. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.

This was a complaint in the nature of a writ of scire facias. In it the plaintiffs allege that on the 19th day of January, 1897, they brought their certain civil action to the court of common pleas in and for Litchfield county at the term thereof to be holden on the first Tuesday of February then next; that in their complaint in said civil action they claimed, for the reasons therein set forth, an injunction against the present defendants and divers others, restraining and enjoining them, and each of them, and particularly the said Frederick A. Jewell, from occupying or using the plaintiffs' room or law office in the town building in New Hartford, all as is more fully set forth in the said injunction suit annexed to and made part of the present complaint. They allege, also, that on the 19th day of January, 1897, the judge of said court of common pleas issued an order of temporary injunction strictly commanding and enjoining all of the therein defendants, "under a penalty of one thousand dollars, that they do not occupy the said office room of the plaintiffs"; and that the said civil action, writ, and complaint and said injunction were duly served on each of the defendants therein named. And they further allege that Frederick A. Jewell and Henry J. Tucker, defendants in the present action, and who were also defendants in the said injunction suit, have not obeyed said injunction, but have utterly refused to comply with the same, and have refused to desist from occupying the plaintiffs' said room; and that the said injunction enjoining the defendants Jewell and Tucker against doing the acts set forth in the said complaint, under a penalty of $1,000, has never been reversed, and said penalty of $1,000 has never been changed, reversed, or set aside, and no part of said penalty for the violation of said injunction has ever been paid to the plaintiffs. The present complaint claims $1,000 damages. The said writ of Injunction, with the injunction order thereon, is annexed to the complaint, and made a part thereof. The material parts of said order are as follows: "Now, therefore, by authority of the state of Connecticut, you, the said [naming all the defendants], are each and all of you, under a penalty of one thousand dollars, hereby strictly commanded and enjoined that you do not occupy the said office room," etc., "* * * until the next court of common pleas for Litchfield county to be holden in and for said county on the first Tuesday of February, A. D. 1897, and until said court shall make further order and decree in the premises." It appears that said order of injunction was issued ex parte. There was afterwards, upon a motion to dissolve the said temporary Injunction, a modification thereof, but the judge refused to dissolve it. At the September term, 1897, of the said court of common pleas, the plaintiffs in the said injunction suit (being the plaintiffs in the present action) made their application and motion to the court that the defendants in the said injunction suit (being the defendants in this suit) be attached for contempt for disobeying the said order of injunction; and thereupon such proceedings were had that the said court adjudged these defendants to be guilty of contempt, and ordered that they pay a fine and the costs. It also appears that the said injunction suit is still pending in the said court of common pleas, and has never been tried, nor has any judgment therein been rendered. The defendants in the present action demurred to the complaint "because it appears therein that the damages sought to be recovered are for an alleged violation of a temporary injunction issued in an action which is still pending in said court" The court sustained this demurrer, and rendered judgment that the complaint was insufficient, and for the defendants to recover their costs. The plaintiffs have appealed to this court.

Leonard J. Nickerson, for appellants.

Samuel A. Herman, for appellees.

ANDREWS, C. J. (after stating the facts). The demurrer was the appropriate means to present the defect in the complaint claimed by the defendants. If it appears on the face of the complaint that the action is prematurely brought, it is fatal on demurrer. Gould, Pl. c. 5, §§ 137, 138; Southey v. Dowling, 70 Conn. 157, 39 Atl. 113. And we think there is no error in the judgment of the court of common pleas upon the demurrer. The complaint does not show any final judgment in favor of the plaintiffs. A scire facias does not lie except on a judgment or some matter of record in the nature of a judgment. In the case of Smyth v. Ripley, 32 Conn. 157, Judge Dutton, said, speaking of a writ of scire facias: It is not an original process; "it is more like a writ of execution, a bill of revivor, or other similar proceedings, the object of which is to carry into effect some judgment previously rendered." In ...