Vincent v. McNamara

• Decision Date: 08 February 1898
• Court: Connecticut Supreme Court
• Parties: VINCENT v. McNAMARA.

39 A. 444

70 Conn. 332

VINCENT

v. McNAMARA.

Supreme Court of Errors of Connecticut.

Feb. 8, 1898.

Appeal from superior court, Fairfield county; William T. Elmer, Judge.

Action by Silas A. Vincent against Michael McNamara to recover damages for a malicious attachment of the plaintiff's property, and the consequent injury to his business. The court sustained a demurrer to the complaint, and rendered judgment for the defendant, and the plaintiff appealed. Reversed. In the supreme court the appellee filed a plea in abatement. Overruled.

The complaint alleged that on October 16, 1894, the defendant owned the only feed store and grist mill in a certain quarter of the town of Brookfield, and that on that day the plaintiff opened another such store and mill there for business, and at once became a competitor of the defendant in the feed and grain business; that in November the defendant caused a writ of attachment to be issued against a third party, and then maliciously attached thereon the stock in trade of the plaintiff, for the purpose of breaking up his business, thereby closing up his mill and store for several days, hindering his business, and keeping him out of possession until December, when he replevied the goods from the attaching officer; that, when replevied, they were damaged, and in part spoiled; that in February, 1897, he obtained final judgment against the officer in his replevin suit; that the defendant knew, or ought to have known, at the time of the attachment, that the plaintiff owned the goods, but nevertheless ordered the officer to attach them, and close up the store and mill, for the purpose of annoying and harassing him and driving him out of business, and to get rid of a competitor in said business; and that but for the attachment the plaintiff would have made a profit of $200 from his business between the date of the attachment and that of his writ of replevin. The causes of demurrer were that the judgment in replevin against the attaching officer was a bar to this suit; that the damage to the goods while attached gave no cause of action against the defendant; and that the claim for relief (which was for damages) was not supported by the facts alleged. The record of the cause showed an entry of "Demurrer sustained, Elmer, J.," on November 30, 1897. The judgment was dated December 31, 1897, and, after stating that the court found the issue for the defendant on November 30th, set forth that "said action came thence to the present time, whereupon it is adjudged by this court that the defendant recover of the plaintiff his costs, taxed at $—." The defendant pleaded in abatement of the appeal that the decision of the superior court sustaining the demurrer was duly made and filed on November 30th, and that afterwards the plaintiff, on December 31, 1897, upon his own motion, caused said court to enter up a judgment of said date; and that the appeal was not taken within 10 days from November 30th, but only within 10 days from the judgment of December 31st. The plaintiff moved orally in this court that the plea in abatement be not entertained, because it was filed with the clerk of the supreme court of errors for New Haven county, when the appeal was from a judgment rendered in Fairfield county, and therefore the plea should have been filed with the clerk of the court for Fairfield county, and also because the allegations of the plea contradicted the record and judgment of the superior court. This motion was denied, and a demurrer was then filed to the plea in abatement, which demurrer was sustained, and the appeal then heard on its merits.

Henry A. Purdy, for appellant.

James H. McMahon, for appellee.

BALDWIN, J. The appellee filed a plea in abatement with the clerk of the supreme court of errors for New Haven county, on the Friday preceding the first day of the January term of the court to be held at New Haven, in the Third judicial district, to which term the appeal had been taken. The appellant moved that the appeal be stricken from the files, because it was not filed with the clerk of the court for Fairfield county. This motion was denied, and the point of practice thus decided is of such importance that the court deems it proper to state the reasons which led to that result, particularly as in another appeal from Fairfield county, at the same term, a similar plea was entertained against the objection of the appellant, which had been filed with the clerk of the court for Fairfield county.

The secretary of the state was the sole clerk of this court from its original institution, in 1784, until 1819. During this perjod it sat only at the capitol of the state. In 1819 a law was passed that one term should be held annually in each county, and that "the clerks of the superior courts in the several counties shall be clerks of the supreme court of errors in their respective counties." Rev. St. 1821, p. 137, § 2. In 1866, "to facilitate the trial of causes before the supreme court of errors," the state was divided into four judicial districts, each containing two counties, and in each of which the court was to hold two terms a year; and it was provided that the court "shall have and exercise the same powers, authority, and jurisdiction in each judicial district, which it has hitherto had and exercised in the counties of which such district is constituted." This statute also declared that "the clerks of the superior court in the several counties shall be clerks of the supreme court of errors for their respective counties in the judicial districts to which such counties belong." Pub. Acts 1866-68, p. 43, c. 75, § 4. In 1889, the third judicial district was reconstituted so as to be "composed of the counties of New Haven and Fairfield," the court to sit twice a year at New Haven, and twice a year at Bridgeport; and it was further enacted that "the clerk of the superior court for New Haven county shall keep a docket upon which all appeals to be heard by the supreme court of errors in New Haven shall be entered in the following order: First, appeals from Fairfield county; second, appeals from New Haven county. The clerk of the superior court for Fairfield county shall keep a docket upon which all appeals to be heard by the supreme court of errors in Bridgeport shall be entered in the following order: First, appeals from New Haven county; second, appeals from Fairfield county." Pub. Acts 1889, p. 77, c. 141. The supreme court of errors is a court whose jurisdiction is...