Levy v. Metropolis Mfg. Co. , 73 Conn. 559 ( 1901 )

The cause of abatement alleged in the plea of the defendant corporation is defective service, and the particular cause is thus stated: Said writ was not otherwise served on the defendant corporation than by leaving a copy of the same with said defendant's secretary on the 24th day of April, 1899, and "six weeks and one day, instead of six weeks, before the first Tuesday of June, 1899, to which said writ was made returnable." There is no other allegation.

Under the statute applicable to this case, service could legally be made more than six weeks before the return day, if that return day were the one next after the date of service to which the writ could be made returnable. Public Acts of 1895, p. 547; id. 1897, p. 896; Hill v. Buechler, 73 Conn. 227,230. This legislation has been repealed (Public Acts of 1899, Chap. 120, p. 1051), and questions under it, except as to actions brought before the repeal, are now immaterial. The only return day intervening between the date of service of the writ and the first Tuesday of June, 1899, was the first Tuesday of May, 1899. The writ was served on April 24th, less than twelve days before said first Tuesday of May; and therefore it was properly served unless both of the defendants were residents of the town of New Haven, in which case it might be that the service was invalid. General Statutes, § 751. The plea contains no allegation that the defendant corporation is a resident of New Haven, and no allegation of any kind in respect to the defendant Dejon. But the claim is made that the defect in omitting these allegations is aided by the description contained in the writ of the defendant corporation, as "located in the town of New Haven," and of the defendant Dejon as residing "within the city and county of New Haven and State of Connecticut." We need not consider what weight might be given this claim in passing on the sufficiency of the plea in substance, for it is now challenged for its defective form. It does not state that both the defendants were residents of New Haven, and states nothing which points out to the plaintiffs how service can legally be made upon these defendants; that is, whether it should be made upon them as being both residents of the town of New Haven, or not. In this case the actual residence of both defendants is the only fact decisive of the legality of the service, and that fact is not stated. Such particularity is requisite (Budd v.Meriden Electric R. Co., 69 Conn. 272, 283), and the Practice Act says that such a plea must state the particular causes of abatement, and how the plaintiff might or should have brought his action in order to avoid them, if they are such as could have been avoided. General Statutes, § 872. The demurrer states that the plea in abatement does not give the plaintiffs a better writ, and was properly sustained on this ground.

It may be that the plea is bad in substance, and that the demurrer should be sustained even if the exceptions to defects in form were not well taken, but we do not consider these questions.

If the court erred in ordering certain paragraphs in the answer to be expunged, no harm was done by it. The complaint is sufficient in substance. As there was no demurrer, the question of defect in form cannot be raised on this appeal.

The exceptions to the conduct of the trial by the court are not well taken. The question asked the witness Morse was properly excluded. The evidence called for was hearsay, and came within no one of the exceptions to the rule excluding such evidence.

The trial court found these facts: 1. The sale of the rugs to the plaintiffs was made by Payne, acting as agent of the defendant corporation, and acting within the apparent scope of his authority. 2. The plaintiffs made an absolute purchase of said rugs from said Payne, in entire good faith, believing him to have the authority to make the sale, and was not chargeable in the circumstances with any neglect to make special inquiry as to the right of Payne to sell the rugs for the price paid. 3. The plaintiffs had a meritorious and sufficient defense to said action for conversion.

No claim is made that the court erred in rendering, upon these facts in connection with other facts admitted and found for the plaintiffs, the judgment appealed from. The court has found in detail the subordinate facts from which said conclusions of fact were drawn; and the defendant's claim is that these subordinate facts are insufficient in law to support the conclusions of the court. Such conclusions are reviewable; but we think that the claim as here made does not call for discussion. The record does not show that the conclusions of fact were necessarily influenced by the adoption of any erroneous rule of law, and the claim that the subordinate facts found, or any of them, are logically and necessarily inconsistent with the ultimate conclusions, is not tenable.

The court did not err in overruling the claims of law made by the defendants on the trial. It was not necessary for the plaintiffs to show that "demand was made on the defendants before suit was brought to reopen the judgment given by said justice of the peace." The circumstances of the case appearing in the finding did not, by necessary operation of law, cast a duty upon the plaintiffs to make inquiry as to the agent's authority to sell at the price asked. There is no occasion to correct the finding.

It appears from the whole record that the plaintiffs' property interest in the original contention was $1.40, and that of the defendant corporation was $5, and that the plaintiffs and defendant were both at fault and acting against their real interests in pressing this action to trial. Parties should remember that persistent litigation, where no substantial rights are involved, is an abuse of the facilities furnished by the State in the administration of justice.

There is no error in the judgment of the Court of Common Pleas.

In this opinion the other judges concurred.