Humphrey v. Marshall

Hinman, J. No notice can be taken of any errors, said to have intervened, while this cause was pending in the county court. It is not claimed, that jurisdiction of them is given to this court, by the express provision of any statute ; but it is said, that as the erroneous judgment complained of, occurred on the plea in abatement, unless the party aggrieved can reach the error here, he is without remedy ; as the superior court could not notice the plea in abatement, while the cause was pending in that court. This may be so; and yet it neither shows, nor tends to show, that we have jurisdiction. On the contrary, it rather shows that we have not. For, if the superior court could not notice the error, on the plea in abatement, it is for that reason that we cannot, as the jurisdiction of this court is confined to errors in judgments and decrees of the superior court; and if that court could render no judgment, nor make any decree in the matter, then there can be none to revise here. Stat. 117. (ed. 1838.) Green v. Hobby, 8 Conn. Rep. 165. But the defendant was not without remedy. He had all the remedy the legislature intended that a party who pleads in abatement, should have. He could have appealed from the judgment on that plea, and have brought the matter of abatement directly before the superior court; and thus have laid the foundation for revising any erroneous proceeding thereon. By omitting to do this, he must be taken to have waived the plea in abatement in the superior court. Stat. 48. (ed. 1838.) A more material question arises upon the judgment in the superior court. It does not appear, that any pleadings were had there; but the parties seem, by the record, to have gone to trial, upon the issue joined in the court below. And though that issue was formed, by demurrer to the general issue, [346] pleaded in the usual form, and was doubtless made up, for the purpose ot appealing the cause; yet it was properly before the court; and the parties had a right, if they chose, to require judgment upon it; and as no one doubts that the general issue is a good plea, and as the judgment finds the issue in favour of the plaintiff, thereby finding the plea insufficient, the judgment is, evidently, erroneous ; unless it is aided, by the presumption, that the issue on file was waived, and the cause tried on an issue in fact, which does not appear from the record. We should certainly be disposed to find such waiver, if there was any thing in the record on which to ground the presumption ; as we have no doubt, that the parties really tried the cause, as upon an issue in fact, which, through the inadvertance of counsel, (the attention of the court not having been called to the pleadings) was not made up. In doing this, we should be sustained, by the late case of King v. Lacey, 8 Conn. Rep. 499. And, perhaps, it may not be going too far, to say, that if the judgment was so entirely inconsistent with the issue on file, as to show by inference, that the demurrer must have been waived, and an issue in fact tried, we might presume it to have been done, and thus sustain the judgment. The cases read to us, by the defendant’s counsel, seem to sustain this position ; but they go no farther, and, therefore, do not apply to this case. Here, the judgment not only stands well with the issue on file, and had the plea been insufficient, would have been the appropriate judgment in the case, but it refers expressly to the issue on file, as the one on which the judgment was rendered, and thereby excludes the presumption of an issue in fact. But, it is said, that the judgment shows, that testimony was heard upon the trial; which could not have been done, upon an issue in law ; and it is true, that the clerk, in entering up the judgment, says, “ the testimony being heard, &c.” which was not only unnecessary, but is, to say the least, a very unusual way of entering up judgment upon a demurrer. It is also true, that in entering up the judgment of the county court, in this case, the clerk has made use of a form of his own, and one to which it would be difficult to find any thing analogous in any other judicial proceeding. But we do not think, that this reference to the testimony is so entirely inconsistent with the idea that 1 he judgment was rendered upon [347] the demurrer, as necessarily to contradict the express finding, that the judgment was rendered upon the issue on file. By our practice, the courts assess the damages where judgments are rendered on default, or upon demurrer; (1 Sw. Dig. 784.) and in doing this, frequently hear testimony ; and the clerk might suppose it proper for the judgment to show it. Upon the whole, we are satisfied, that the judgment of the superior court is erroneous, and must be reversed. In this opinion the other Judges concurred. Judgment reversed.