Gifford v. Town of Norwich

Ellsworth, J. We do not seejrom the record in this case that the town of Norwich has in any way been made a party to the proceeding. It is very clear that in applications of this nature the town must be made the party on the record, and not any one of the selectmen, or the whole body of the selectmen. The town is to defend, if any defense is to be made ; and to do this by any agent it may please to appoint, whether a selectman or some other person; and the town is to pay the damages sustained by individuals whose lands are taken, and to open and make the highway if it is ordered by the court. Indeed all the proceedings are against the town and not against the selectmen. So this court has holden in the cases of Plainfield v. Packer, 11 Conn., 576 and Baker v. Windham, 25 id., 597, nor can any one question the correctness of this view. Has the town then been made a party by summoning Newell 0. Brakenridge to appear in court', simply by reason pf the fact that he was one of the selectmen of the town, and is called [37] so in the order of notice ? We think not. The town is not summoned to appear by name, nor directly in any other way, but Mr. Brakenridge only. He, if any body, is to appear, and to exercise full control over the defense, and the town can have nothing to do with it except by his permission. The order of notice should have been to summon the town, which would have been done by leaving a true and attested copy with any one of the selectmen, and the statute in directing such service was directing it only as a service upon the town. But the mere mode of giving notice does not determine the question who are the parties. If the statute had directed a copy to be left with the minister of the parish or the representative of the town in the legislature, would this make the town a party ? We think not. We look to the declaration in an action at law, and to the citation in other proceedings, and not to the mere form of the service, to learn who are the defendants to the suit and are to be subject to the ultimate determination of the court. Where a highway is wanted in a city, the summons may be left with the clerk of the city, but the city must be summoned as the party respondent, and the city clerk is only the medium through whom the notice is to be given to the city. And so here, the town only is to be made the respondent, and the selectmen are only the medium of the service upon the town.. We think the court below did right in sustaining the plea in abatement aiid that there is no error in the judgment. In this opinion the other judges concurred; except Sanford, J., who did not sit.