Boothe v. Armstrong , 80 Conn. 218 ( 1907 )

It was one object of the Practice Act to enable the parties to an action to finally settle, so far as the same can conveniently be done, all their controversies in one civil action, by permitting the plaintiff to state in his complaint the causes of action he may have against the defendant, and the defendant to include in his answer a counterclaim stating the causes of action he may have against the plaintiff. The Act gives certain rules for determining when distinct causes of action between the parties cannot be conveniently settled in one civil action, and, subject to these rules, vests in the trial court full power to determine in each civil action the question of convenience. The court may direct that one or more of the distinct causes of action may be expunged from the complaint or answer, or that they all be heard together, or may order separate trials of any of them; it may authorize or order additional parties, plaintiff or defendant, and that parties misjoined may be dropped at any stage of the cause, as it deems the interests of justice require; it may direct any other person to be substituted for the plaintiff or added as plaintiff, when the action has by mistake been commenced in the name of the wrong person, and no change in parties made by order of court shall impair any previous attachment of the estate of any person remaining a defendant in the action; it may order the parties to state their grounds of claim or defense more certainly, and if the pleadings do not sufficiently define the issues may direct the parties to prepare other issues, and, if the parties differ, such issues shall be settled by the court.

In view of this purpose of the Practice Act and of the plenary powers vested in the court for its effective execution, we think that in this case it does not appear upon the face of the record that the trial court acted without jurisdiction in permitting the parties to settle all their controversies in one civil action.

It appears by the record that the plaintiff had a disputed claim against the defendant for money loaned, and the defendant had a disputed claim against the plaintiff for goods sold and services rendered, and that these two controversies were properly included in one civil action pending before the Superior Court; the former by statement of the plaintiff in the complaint, and the latter by statement of the defendant in the answer. The plaintiff attempted to take this action and the parties out of court, by filing with the clerk a certificate stating, in effect, that the action entitled Boothe v. Armstrong, pending in the Superior Court, "is hereby withdrawn." Under the common-law procedure an action and the parties might thus be taken out of court. The plaintiff, in a form of action authorized for the enforcement of his claim, had ordinarily complete control of that action before its merits had in some way been passed upon. Under the Practice Act, the plaintiff's attempt, by filing a certificate of withdrawal, to take this particular action and the parties out of court, was ineffectual. This civil action included causes of action in favor of both plaintiff and defendant, and neither had complete control of the action. It must remain pending so long as either insists upon its disposition by the court. The plaintiff has the right to "withdraw from the cognizance of the court his own cause of action" as stated in the complaint, and this is the only effect that can be given to his attempt to withdraw the civil action, which included causes of action both in his own favor and in favor of the defendant; and so we held when this case was before us upon the legal effect of this attempted withdrawal. 76 Conn. 530,57 A. 173.

Whether the Superior Court and the parties properly treated the paper filed by the plaintiff, which was a mere nullity for the purpose for which it was filed (viz. a withdrawal of the entire action), as nevertheless effective for the purpose of withdrawing or striking out the cause of action stated in the complaint, need not now be discussed. The plaintiff had the right to do this, although he could not withdraw the pending civil action.

Assuming that he voluntarily did this, the court still had the power under the Practice Act to permit this cause of action — whether it was one of several or the only one stated in the complaint, or one which had not before been stated at all — to be stated and disposed of in the pending action. There is no settled practice as to the mode of permitting the plaintiff who, in an action which comprised causes of action both in his favor and in favor of the defendant, has voluntarily withdrawn the only cause of action stated in his complaint, to subsequently include that controversy in the pending action. Since the changes made by the Practice Act in the scope of a civil action, this question of practice, so far as we know, has not arisen. We are not aware that the case has ever before arisen where, under such circumstances, the plaintiff has voluntarily withdrawn the only cause of action stated in his complaint; but the court clearly has power to permit a cause of action so withdrawn to be subsequently stated, either in the complaint or in the reply to the counterclaim contained in the defendant's answer, which then serves the function of a complaint. The exercise of this power may be subject to limitations somewhat analogous to those regulating the allowance of amendments. In general, that mode of procedure, in a novel situation, which substantially accomplishes the lawful result in the most direct and simple manner would be the better practice.

In the present case the court, for the purpose of allowing the parties to settle all their controversies in the pending action, permitted the plaintiff to restate in his complaint a cause of action he had previously abandoned. Under the Practice Act it was within the jurisdiction of the court to allow this cause of action to be included in the pending action. Whether the mode adopted for the exercise of that power is the most desirable one, and whether, under all the facts and circumstances before the court at the hearing upon the plaintiff's motion (which was in effect a motion for leave to include this cause of action in the pending civil action), the motion in this particular instance should have been denied, are questions not presented by this appeal. The only question before us is that of jurisdiction. The court had jurisdiction to hear and allow or disallow the motion.

These considerations dispose of all material assignments of error specified in the appeal, except the one which claims that the court erred in allowing the plaintiff credits to the amount of $3,227.65 for materials furnished the defendant by the plaintiff for use by the defendant in the manufacture of goods in pursuance of the contract.

The defendant's claim, that the legal operation of allowing these credits is to make the judgment one based on facts not alleged, is unfounded. The written contract was the inducement to all the transactions upon which the defendant based his claim of indebtedness, as stated in his counterclaim, and is made a part of his counterclaim. The defendant in effect alleges that he delivered goods and rendered services in the manufacture of goods described in that contract, under and pursuant to its terms, and delivered the stock, etc., on hand at the close of the transactions, under the contract. By the terms of the contract the goods made and delivered by the defendant are to be made of material furnished by the plaintiff at its cost price, which must be credited to the plaintiff and remain his property until paid for. The amount due the defendant for goods made by him pursuant to the contract, depended upon the amount due the plaintiff for the cost price of his material which went into the goods made, and which, as well as that furnished for this purpose but not so used, belonged to the plaintiff until paid for. In denying the defendant's allegation of the amount due him, the plaintiff put in issue the amount of credits due him for his material furnished for making the goods pursuant to the contract. Under the peculiar circumstances of this case the committee was justified in finding the amount due the defendant for goods made under the contract, and the judgment rendered is correct. Apparently this is the view of the law taken by the parties themselves at the hearing before the committee.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.