Town of Hamden v. Collins
| Citation | 85 Conn. 327,82 A. 636 |
| Court | Supreme Court of Connecticut |
| Decision Date | 07 March 1912 |
| Parties | TOWN OF HAMDEN v. COLLINS. |
Appeal from Court of Common Pleas, New Haven County; Isaac Wolfe Judge.
Bastardy proceedings by the Town of Hamden against Robert Collins. From a judgment for defendant dismissing the complaint for illegal and insufficient service of the writ and process plaintiff appeals. No error.
Amendment to return on a warrant in bastardy proceedings after court had improperly assumed jurisdiction and rendered judgment held not to relate back and validate proceedings.
This bastardy complaint against the defendant, who is therein described as, and who in fact was, a resident of New Haven, was brought to the town court of the plaintiff town. The statutory warrant was thereupon issued directed to the sheriff of the county, his deputy, or either of the constables of Hamden, and to one Webster, an indifferent person. This process was delivered to Webster to serve as an indifferent person. He then, in the execution of its mandate went to New Haven, where the defendant then was, and took him into custody, delivering to him a copy of the complaint and warrant attested by Webster as an indifferent person. The defendant submitted to the arrest without resistance or remonstrance, and peaceably obeyed the commands of Webster as his custodian. Pending his production in court he was kept in custody in the New Haven jail under Webster's authority. Thence he was taken to Hamden, and there presented to the court, with a return of the warrant with Webster's indorsement of his doings thereon, reciting his arrest of the defendant's body in New Haven, and signed by him as an indifferent person. In all that Webster thus did he was acting as an indifferent person and under the pretended authority of the warrant. Upon his presentation to court the defendant pleaded in abatement, and moved that the cause be dismissed for the reasons, in substance, that the process was not otherwise served upon him than by the leaving with him in New Haven by Webster, an indifferent person, of a true and attested copy of the complaint and warrant, and that the authority signing the process did not certify thereon that he had administered the oath required by law to authorize the service of process by an indifferent person. This plea was overruled, the defendant put to plea against his protest, a hearing had, probable cause found, and the defendant bound over to the court of common pleas. When the cause reached the latter court, the defendant renewed his plea in abatement and motion to dismiss. A demurrer thereto having been overruled, an answer to the plea was filed. Upon the issues thus framed a hearing was had, the facts found to be as stated in the plea and as herein recited, the process abated, and the cause dismissed.
After the issues had been joined as stated, and pending their determination, counsel for the plaintiff filed in the court of common pleas a certificate of the clerk of the town court of Hamden, dated the preceding day, to the effect that the return on the warrant had been amended, by leave of the court, by adding to the former return a return signed by Webster in the capacity of constable to the effect that he had on the day of the defendant's production in court, and in the town of Hamden, arrested the body of the defendant, and had him in court. This addition to the original return was made on the day the certificate was signed, and more than a month after the cause had been in the court of common pleas. The defendant objected to the filing of this certificate. Webster was a constable of Hamden. In his arrest and custody of the defendant he did not lay hands upon him. The latter at no time when he was in Webster's custody disputed the latter's pretended authority under the warrant, or refused to recognize or to submit to it. Before the warrant was issued and directed to Webster as an indifferent person, neither the plaintiff nor its agent or attorneys made oath before the authority signing the complaint and warrant that the affiant verily believed that the plaintiff was in danger of losing his debt or demand, unless an indifferent person was deputed for the immediate service of the complaint and warrant, nor did the authority signing said process certify that he administered such oath.
Henry G. Newton and Charles F. Clarke, for appellant.
Eliot Watrous, for appellee.
PRENTICE, J. (after stating the facts as above).
It has long been the settled law of this state that our statutory bastardy proceedings are civil, and not criminal, in their nature, and that the general rules respecting civil cases are applicable to them. Hinman v. Taylor, 2 Conn. 357, 360; Town of Naugatuck v. Smith, 53 Conn. 523, 525, 3 A. 550; Town of Hamden v. Merwin, 54 Conn. 418, 425, 8 A. 670; Van Epps v. Redfield, 68 Conn. 39, 47, 35 A. 809, 34 L.R.A. 360. Section 568 of the General Statutes expressly and in unmistakable language provides that no process in civil actions shall be directed to an indifferent person except under conditions not present in this case. This last statement is equally true, whether or not the warrant is to be regarded as one of attachment. If one of attachment, the conditions of the statute clearly are not met. If not one of attachment, it comes within no exception to the general mandate of the section.
Directed, as this was, to an indifferent person, who served and made return of his service of it in that capacity, it had no force, and was to all intents and purposes void as a process for the institution of the proceedings. Eno v. Frisbie, 5 Day, 122, 126; Case v. Humphrey, 6 Conn. 136, 139. The plea in abatement in the town court should have been sustained, and the proceedings dismissed. It was not, but jurisdiction was taken, a hearing had, and a binding over judgment entered. This judgment was extrajudicial and void. Case v....
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