Ætna Ins. Co. v. Blumenthal

• Decision Date: 08 January 1943
• Citation: 29 A.2d 751,129 Conn. 545
• Court: Connecticut Supreme Court
• Parties: ÆTNA INS. CO. v. BLUMENTHAL et al.

29 A.2d 751

129 Conn. 545

ÆTNA INS. CO.

v. BLUMENTHAL et al.

Supreme Court of Errors of Connecticut.

Jan. 8, 1943.

[Copyrighted material omitted.]

Appeal from Court of Common Pleas, New London County; Waller, Judge.

Action by the Aetna Insurance Company against Moses Blumenthal and others to recover damages for the alleged illegal release of plaintiff's judgment debtor who had been committed to jail on a body execution, brought to the Court of Common Pleas in New London County, and tried to the Court. From a judgment in favor of the defendants, the plaintiff appeals.

No error.

Before MALTBIE, C. J., and JENNINGS, ELLS, DICKENSON, and INGLIS, JJ.

T. Holmes Bracken, of New Haven, for appellant (plaintiff).

Samuel I. Safenovitz, of Norwich, for appellee (named defendant).

Arthur M. Brown, of Norwich (Charles V. James, of Norwich, on the brief), for appellees (defendants Hoxsie and Cook).

MALTBIE, Chief Justice.

The plaintiff sought to recover damages for the claimed unlawful release, through the administration of the poor debtor's oath, of its judgment debtor imprisoned in jail under a body execution. The justice of the peace who administered the oath, the sheriff as jailer and the deputy jailer are the parties defendant. The trial court rendered judgment for the defendants and the plaintiff has appealed.

The statute provides that any prisoner held under civil process may apply to a justice of the peace to take the poor debtor's oath; that notice of the application, signed by the justice, shall be given "the adverse party, if an inhabitant of the state, otherwise to his attorney," to appear and show cause why the oath should not be administered; that the notice shall be served "at least four days inclusive before the day specified for administering such oath"; that the justice "shall inquire into the matter and, if no sufficient reason is shown to the contrary," shall administer the oath; and that the jailer shall thereupon discharge the prisoner unless the creditor shall give to him "immediate notice in writing" that he intends to apply for a review and shall deposit board money with the jailer. General Statutes, § 2027. The statute does not expressly provide that the justice shall issue a certificate that he has administered the oath, but this is implied in the nature of his office and the character of the function. Anderson v. Dewey, 91 Conn. 510, 512, 100 A. 99. While the actual administration of the oath is a ministerial act, the determination that "no sufficient reason is shown to the contrary" involves the exercise of a judicial function. Anderson v. Dewey, supra. As the prisoner is held to answer the judgment, the party obtaining it, in this case the plaintiff, is the "adverse party" entitled to notice; and, if he is an inhabitant of the state, notice to his attorney is, under the clear implication of the statute, insufficient.

The prisoner applied to the defendant Blumenthal, a justice of the peace, to have the oath administered, and on February 13th Blumenthal issued a citation to the plaintiff and its attorneys to appear before him on February 20th at 1 p.m. to show cause why the oath should not be administered. Copies of the notice were served on the plaintiff's attorneys on February 15th and 17th and on the plaintiff on the latter day. The dates of service were stated in returns by the officers making service. No appearance having been made for the plaintiff, the justice, at about 1:30 p.m. on February 20th, administered the oath and issued a certificate to that effect. He then handed to the deputy jailer a certificate which recited that, service having been made on the plaintiff and its attorneys "as shown by the officer's return thereof," a hearing was held by him at the jail at 1 o'clock on February 20th, when the parties appeared and, the prisoner having been examined and no reason to the contrary appearing, he administered the oath, and that the prisoner "is hereby discharged from jail." The hearing was in the jailer's office at the jail, and the defendant Cook, the deputy jailer, was present there with the debtor, his attorney and the justice, from 1 p.m. until the oath was administered; after administering it, the justice handed the certificate to Cook and, having read it, Cook immediately released the prisoner. About fifteen minutes later an attorney for the plaintiff appeared at the jail but the prisoner had departed.

The general principle determining the civil liability of a justice of the peace in such a situation as the one before us is stated in Prince v. Thomas, 11 Conn. 472, 476, and repeated in Case v. Bush, 93 Conn. 580, 552, 106 A. 822, 823, as follows: "If a warrant issues from a magistrate or officer of special and limited powers, who has not jurisdiction of the person, subject-matter, and process, all who are voluntarily and actively concerned in its procurement and execution are trespassers." This rule is, however, subject to a well-recognized qualification which, as applicable to the situation before us, is stated in Broom v. Douglass, 175 Ala. 268, 273. 57 So. 860, 862, Aim.Cas.1914D, 125, as follows: "When such judge acts judicially with respect to a subject-matter of which he has a general jurisdiction, but in the particular case he has acquired no jurisdiction of the person affected, he is not liable if the act involves his present or previous affirmative decision that he has jurisdiction of such person and authority to proceed in the particular case, provided (1) a colorable case has been presented to him which fairly calls for or permits the exercise of his judgment with respect thereto; and provided (2) he has determined in good faith, without malice or corruption, that the case presented calls for the exercise of his general jurisdiction." See also Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 352, 20 L.Ed. 646; Austin v. Vrooman, 128 N.Y. 229, 238, 28 N.E. 477, 14 L.R.A. 138; Rush v. Buckley, 100 Me. 322, 331, 61 A. 774, 70 L.R.A. 464, 4 Ann.Cas. 318; Grove v. Van Duyn, 44 N.J.L. 654, 660, 43 Am. Rep. 412; Langen v. Borkowski, 188 Wis. 277, 292, 206 N.W. 181, 43 A.L.R. 622. In the instant case, the justice had jurisdiction over the subject matter, the administration of the oath, and the trial court found that he decided in good faith and without malice that he had jurisdiction of the person of the plaintiff. While this is stated among the conclusions of the court, it is clearly a finding of a fact from evidence and not a deduction; in fact, if there were doubt as to this, a short excerpt from the evidence quoted in the finding to present a ruling of the court definitely establishes it to be so. As such a finding, it is open to attack only on the ground that the evidence fails to support it, Cumbo v. E. B. McGurk, Inc., 124 Conn. 433, 436, 200 A. 328; Davis v. Davis, 128 Conn. 243, 248, 21 A.2d 393; and as the evidence, except as we have noted, is not printed, the finding must stand. The justice was wrong in deciding that service on the 17th was notice "four days inclusive before the day specified for administering such oath," that is, the 20th. Brooklyn Trust Co. v. Town of Hebron, 51 Conn. 22, 27. But we cannot hold that there was not at least a colorable basis for his decision that he had jurisdiction of the plaintiff. If he should have waited a full hour after the time fixed for the hearing before administering the oath, this was an error in the exercise of his jurisdiction and would not make his action in administering it void, or make him personally liable therefor. McVeigh v. Ripley, 77 Conn. 136, 141, 58 A. 701; Bradley v. Fisher, supra; Ackerley v....