Town of Hamden v. Collins

Prentice, J. 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; Naugatuck v. Smith, 53 Conn. 523, 525, 3 Atl. 550; Hamden v. Merwin, 54 Conn. 418, 425, 8 Atl. 670; Van Epps v. Redfield, 68 Conn. 39, 47, 35 Atl. 809. 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 extra-judicial and void. Case v. Humphrey, 6 Conn. 130, 139. There is nothing in Kelsey v. Parmelee, 15 Conn. 260, to militate against this conclusion. That case held that the statute under discussion prescribed regulations for ordinary process in civil actions, and not *331 for all processes in all manner of proceedings. It further held that the process in that case was of a special character which removed it from the purview of the statute. Such is not the situation here. This is a civil action, and the defective warrant was the prescribed process for its institution. The renewal of the plea of abatement in the Court of Common Pleas was in accordance with approved practice, and to its disposition the above considerations were as pertinent as they were when it was pending in the Town Court. Naugatuck v. Smith, 53 Conn. 523, 526, 3 Atl. 550. The plaintiff characterizes the action commanded by the warrant as an arrest, and argues therefrom that, while the proceeding may be civil in its nature the warrant was not a civil process. This contention rests upon a misunderstanding of the scope and meaning of “arrest.” It fails to distinguish between a civil and a criminal arrest, and to appreciate that the word “arrest” is as appropriately used to designate the former as the latter. Black’s Law Dictionary; Hogan v. Stophlet, 179 Ill. 150, 154, 53 N. E. 604; Ahern v. Collins, 39 Mo. 145, 150. The apprehension of a person, by virtue of the lawful authority of mesne civil process, to answer the demand against him in a civil action, is an arrest in the most accurate use of that term. 3 Cyc. 898; Bouvier’s Law Dictionary; Anderson’s Law Dictionary. The plaintiff asserts that the defendant voluntarily appeared before the court, and that, therefore, it had jurisdiction to cause him to answer to the complaint. On the contrary, the return shows that he appeared by virtue of Webster’s pretended arrest in the service of the warrant, and under the compulsion of his custody. The fact that the defendant submitted peaceably to Webster’s pretence of authority, and accompanied the *332 latter as directed, did not affect his status as one restrained of his liberty. The pertinent facts are that Webster assumed authority to arrest him by force of the warrant in his hands, and that the defendant submitted to that authority which Webster asserted. Callahan v. Searles, 78 Hun, 238, 28 N. Y. Supp. 904; 1 Cooley on Torts (3d Ed.) 297. It was not necessary for him to resist Webster’s attempt, or to disregard his captor’s orders or custody, or to compel the use by Webster of actual force in order to preserve his rights. Johnson v. Tompkins, 1 Bald. (U. S. C. C.) 571; Brushaber v. Stegemann, 22 Mich. 266, 269. His apprehension and production in court were none the less forceful for the reason that no actual force was used. The law implies force in every false imprisonment, and any unlawful detention of a person against his will is a false imprisonment. Emmett v. Lyne, 1 Bos. & P. (N. S.) 255; Kirk & Son v. Garrett, 84 Md. 383, 35 Atl. 1089. The defendant’s production before the court was in the eye of the law forceful, and he carefully avoided a waiver of his rights by his plea. The amendment of the return which was made in the Town Court long after its final action had been taken, assuming that the court had the power to permit it to be made, was entirely without effect either as giving validity to that court’s action, or as giving the cause a standing in the Court of Common Pleas. The former court had assumed jurisdiction, and proceeded to a hearing and judgment when upon the record it was without jurisdiction. The amended return could not by relation back to the time of the court’s action make good and valid what was extra-judicial and void when it was done. It could not avail to furnish the court a jurisdiction which it did not have when its judgment was rendered. That jurisdiction is to be determined by the record as it then was, and the Court of Common *333 Pleas took the case with all the infirmities it had when it was handed to' it. Furthermore, it was not competent for Webster as a constable to arrest the defendant where and when he pretends to have done so. He had wrongfully, and in the eye of the law forcibly, brought the defendant from New Haven, outside of his' precincts as a constable, into Hamden, and thus within his precincts, and was then holding him in custody under an illegal arrest made in New Haven. This his two returns show, and this the law will not suffer to be done in the service of a civil process. It will not permit the illegal act to be thus utilized, and results forbidden to be accomplished directly thus suffered to be achieved by indirection. Ilsley v. Nichols, 12 Pick. (Mass.) 270, 275; Carpenter v. Spooner, 2 Sandf. (N. Y.) 717, 718; Hooper v. Lane, 6 H. L. Cas. 443. There is no error. In this opinion the other judges concurred.