Hill, Trustee v. Buechler

Hamerslby,' J. The right to commence a civil action on any day in the year except Sundays, to be entered at the next session of the court having jurisdiction of the cause, has always been recognized, and has never been taken away by statute. The only rule in the nature of a restriction is based on the necessity of giving notice to the defendant by service a reasonable number of days before the session of court. In 1876 the legislature provided that in addition to the regular terms of the Superior Court in Hartford, New Haven and Fairfield counties, the first Tuesday of each month, except July and August, should be regarded as a special session for the purpose of returning actions; and in order to establish a reasonable time between the commencement of an action and its return to court, provided that the return day. should be not more than eleven weeks from the date of the process. Public Acts of 1876, p. 100. In 1877 the legislature made a similar provision in respect to the Court of Common Pleas in Hartford and New Haven counties, except that the reasonable time between the commencement of an action and its return to court was fixed at fifteen weeks from the date of process. Public Acts of 1877, p. 234. This provision was retained in the General Statutes of 1888. See § 729. *230 In 1886 the legislature provided for a practically continuous session of the Superior Court, and that the first Tuesday of each month except July and August should be regarded as a session for the return of actions, and that all process should be made returnable to the next return day, or the next but one, to which it could he made returnable. Public Acts of 1886, p. 629. This provision appears in the General Statutes of 1888 as § 794. In 1899 the practice in the Court of Common Pleas was made conformable to that in the Superior Court, except in New Haven county where writs were returnable on the first Tuesday of any month. Public Acts of 1899, p. 1051. From 1876 to 1899, the intent, in making changes in the terms of court, to preserve the right to commence an action at any time, returnable to the next session of the court to which it can be made returnable, is effectively expressed with clearness and certainty. In 1895 (Public Acts of 1895, p. 547) and in 1897 (Public Acts of 1897, p. 896), in providing for certain differences in Courts of Common Pleas in different counties, the legislature, fixing the outside limit of time between the commencement of an action and its return day, used language which, if strictly applied, implies a prohibition.of the institution of any civil action in these courts during a portion of the year. The implication involved in such strict application would demand the abatement of the writ in this action. It is certain that the language was not used for such purpose, and in the Act of 1897 (the one the defendant invokes) it may not unreasonably be construed as excluding the implication claimed by the defendant. But however this may be, we think the right of instituting actions, as it has been recognized since the beginning of our govern-' ment, cannot be thus denied by mere implication. Unless the intent of the legislature to accomplish that result is directly expressed in unmistakable terms, the court is not justified in treating as the legislative intent a result so plainly uncontemplated, and so repugnant to the intention clearly expressed in cognate legislation. This action was made re *231 turnable on the return day next following its commencement, and duly served; the statutory limitation of six weeks between the commencement of an action and its return day has therefore no application, and the trial court did not err in sustaining the demurrer to the plea in abatement. There is no error in the charge. The gist of this action is not a wrongful conversion by refusal to deliver possession upon demand of the legal owner. The circumstances attending a demand and a refusal may have evidential force; but a demand of possession is not essential to the right of action. The question whether or not the allegation of demand in the complaint was strictly proper, is one not raised. The duty and correlative right underlying this action are statutory. The Insolvent Act (Ch. LII of the General Statutes) makes the receipt of property by a creditor in satisfaction of his claim, knowing that his debtor is in failing circumstances and that the transfer is made in view of insolvency and for the purpose of preferring the receiving creditor, a breach of duty; and creates a right to recover the legal damages which may result therefrom. The breach of duty is complete when the property is received, but the right of action is not complete until insolvency proceedings are commenced, and is lost if they are not commenced in sixty days. The effect, immediate and contingent, of such a transfer, as between the parties thereto and others, upon rights relating to ownership in the particular property so transferred, is not important in this case. When the event made by statute necessary to the completion of the right of action has taken place, and the trustee asserts through the institution of an action his right to recover damages resulting to the insolvent estate from the transfer, the gist of that action is the injury caused by the statutory default or breach of duty; and it is therefore immaterial to the maintenance of the action, so long as the statutory default and consequent damage is proved, whether or not at its commencement the creditor had possession of the property, or whether the trustee had made a previous demand of possession. *232 The testimony of the witness Schwartz was relevant and admissible. There is no error in the judgment of the Court of Common Pleas. In this opinion the other judges concurred.