MINTZ, JUDGE. CT Page 10470
The appellee, Gretchen Pulverman, the nonresident executrix of the estate of Mary Jane Watson, moves to dismiss this appeal on the ground that the appellant, Watson B. Metcalfe, failed to properly serve and file this appeal within thirty days of the February 5, 2001, order and decree of the Probate Court, Tobin, J., as required by General Statutes §§ 45a-186 and 45a-187. The record reveals that: (1) on February 26, 2001, the appellee was served pursuant to General Statutes § 52-59b and the service was returned to this court on March 2, 2001; and (2) on March 9, 2001, more than thirty days after the Probate Court's order and decree, the appellant served the appellee pursuant to General Statutes § 52-60 and the service was returned to this court on March 21, 2001.
General Statutes § 45a-186 (a) provides in pertinent part: "Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section."
General Statutes § 45a-187 (a) provides in pertinent part: "An appeal under section 45a-186, shall be taken within thirty days."
The appellant argues that the February 26, 2001, service was both timely and proper because the appellant transacted business in Connecticut, within the meaning of § 52-59b (a). Furthermore the appellant argues that the supplemental service pursuant to § 52-60 was merely a precautionary measure intended to ensure receipt of service. Finally, the appellant argues that even if service upon the appellee was untimely, the appeal cannot be dismissed by virtue of the savings provision of General Statutes § 52-593a.
General Statutes § 52-59b (a) provides in pertinent part: "As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual . . . who in person or through an agent: (1) Transacts any business within the state."
General Statutes § 52-60 (d) states in pertinent part: "Service upon the judge of probate as attorney for the nonresident fiduciary shall be sufficient service upon the nonresident fiduciary, and shall be made by leaving an attested copy of the process with such judge of probate, who shall forthwith give notice thereof to such executor, administrator, conservator, guardian or trustee.
General Statutes § 52-593a provides: "(a) Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within fifteen days of the delivery. (b) In any such case the officer making service shall endorse under oath on such officer's return the date of delivery of the process to such officer for service in accordance with this section." (Emphasis added.)
This court notes that even if it were to find that service on a nonresident executrix pursuant to § 52-59b was a permissible method of service, the appellant has not shown facts indicating that the appellee transacted business in Connecticut, within the meaning of § 52-59b (a). See Knipple v. Viking Communications, 236 Conn. 602, 607, 674 A.2d 426 (1996) (party asserting jurisdiction over nonresident individual pursuant to § 52-59b bears burden of proving court's jurisdiction); see also Rivers Edge Condominium Association v. Gorman, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 343282 (September 26, 1997, West, J.) (court dismissed action where plaintiff failed to serve nonresident executor pursuant to § 52-60 and failed to provide factual support for asserting jurisdiction pursuant to § 52-59b). This court finds, therefore, that service was properly effectuated pursuant to § 52-60 on March 9, 2001. However, this court also finds that such service was untimely as it occurred more than thirty days after the Probate Court's order and decree. Moreover, this court finds that the appellant cannot benefit from the extra fifteen day period afforded by the savings provision of § 52-593a, as the statute requires sworn proof of the date that process was delivered by the appellant to the marshal or officer authorized to serve the process. § 52-593a (b). In this case, neither the officer who made the service pursuant to § 52-59b nor the officer who made the service pursuant to § 52-60 endorsed under oath on their returns the date of delivery of CT Page 10471 the process to such officer. Consequently, this court has insufficient evidence to calculate whether the appellant's service pursuant to § 52-60 would be rendered timely by application of § 52-593a and therefore, this court finds that § 52-593a cannot save this appeal from dismissal.
In summary, this court finds that the appellant failed to effectuate timely and proper service on the appellee. Accordingly, the appellee's motion to dismiss is hereby granted.
MINTZ, J.