The First Bank of Cordova v. Paul Lucchini, Supreme Court of Connecticut, June 1, 1931

Factual and Procedural Background

The First Bank of Cordova (plaintiff) brought an action as holder against Paul Lucchini (defendant), the maker of certain promissory notes, returnable to the City Court of Meriden. The writ named a garnishee. The officer's return showed that the writ was served upon the garnishee six days before the return day and that the defendant was not served at all because the officer could not find him. The defendant entered a special appearance and pleaded in abatement for lack of proper service. The plaintiff demurred to the plea; the trial court overruled the demurrer and sustained the plea in abatement, rendering judgment for the defendant (Mueller, Associate Judge). The plaintiff appealed. The Supreme Court issued a per curiam opinion affirming the trial court's handling of the plea in abatement.

Legal Issues Presented

Whether, when a city charter contains no provision as to the time for serving process upon a garnishee in a suit brought to the City Court, the general statute requiring service at least twelve days before the return day applies.
Whether the defendant's actions taken under a special appearance (motions for default, for judgment, and for a bond to prosecute) constituted affirmative relief that would forfeit his right to claim abatement of the process.
Whether under a special appearance a defendant is entitled to seek a bond to secure costs that might be awarded if judgment on the plea in abatement were obtained.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mitchell v. Smith, 74 Conn. 125, 126, 49 A. 909	Permissible exercise of discretion by trial court to allow amendment of a plea to include a prayer for judgment.	The court invoked this case to support permitting the defendant to amend his plea in abatement to include a prayer for judgment.
Walko v. Walko, 64 Conn. 74, 77, 29 A. 243	Recognition that a judgment on a plea in abatement may entitle a defendant to costs.	Used as authority for the proposition that a successful plea in abatement could give rise to costs for which the defendant might secure a bond.
Sisk v. Meagher, 82 Conn. 483, 74 A. 880	Support for the rule that a judgment on abatement may entitle a defendant to costs.	Cited alongside other decisions to justify that a defendant prevailing on abatement might be entitled to costs.
Gill v. Bromley, 107 Conn. 281, 286, 140 A. 721	Further authority that judgment on abatement can entitle the defendant to costs.	Relied upon to show consistency in Connecticut law that costs may follow a successful abatement.
Receivers Middlesex Banking Co. v. Realty Investment Co., 104 Conn. 206, 214, 132 A. 390	That certain procedural motions made under a special appearance do not constitute affirmative relief removing the right to claim abatement.	Applied to hold that the defendant's motions did not destroy his right to insist on abatement of the process.

Court's Reasoning and Analysis

The court examined the officer's return, which showed service upon the garnishee only six days before the return day and no service upon the defendant. The city charter, as it stood prior to 1923, required service upon a defendant living in Meriden to be made twelve days before the return day but contained no provision governing the time for serving a garnishee (Special Laws of 1921, pp. 963, 964). Because the charter was silent as to garnishees, the court applied the general statute (General Statutes, § 5763) requiring that service upon a garnishee be made at least twelve days before the return day. The court noted a 1923 amendment to the charter that reduced the required time for service on a defendant resident in the city to not less than six days (Special Laws of 1923, p. 158), but it held that this amendment did not affect the time required for service upon a garnishee. Given that there was no service upon the defendant and the service on the garnishee was not timely under the applicable statute, the writ was properly abatable and the demurrer to the plea in abatement was properly overruled.

The court then addressed the defendant's subsequent procedural motions (for default, for judgment, and for a bond to prosecute), which were made under his special appearance. It affirmed the trial court's discretion in allowing the defendant to amend his plea to include a prayer for judgment (citing Mitchell v. Smith). The court treated the motions for default and for judgment as steps in furtherance of the abatement proceedings designed to secure judgment on the plea; such a judgment might entitle the defendant to costs (citing Walko, Sisk, and Gill). Consequently, under his special appearance the defendant was entitled to seek a bond to secure potential costs (General Statutes, §§ 5619, 5620). Finally, relying on Receivers Middlesex Banking Co. v. Realty Investment Co., the court held that these motions did not constitute affirmative relief that would forfeit the defendant's right to claim abatement.

Holding and Implications

Holding: The trial court's disposition was affirmed. No error.

Implications: The court's decision directly resulted in affirmance of the judgment sustaining the plea in abatement and for the defendant. The court applied the general statute requiring service upon a garnishee at least twelve days before the return day where the city charter was silent on garnishee service, and it confirmed that procedural motions made under a special appearance to obtain a judgment on an abatement do not forfeit the right to claim abatement and permit the defendant to seek a bond to secure possible costs. The opinion does not announce or claim to establish a new legal precedent beyond its application of existing statutes and controlling authorities cited.

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THE FIRST BANK OF CORDOVA vs. PAUL LUCCHINI.

Where there is no provision in a city charter as to the time when process should be served upon a garnishee in a suit brought to the City Court, the provision of the General Statutes that such service should be made twelve days before the return day is applicable. A judgment upon a plea in abatement might entitle the defendant to costs, and he is entitled, under his special appearance, to seek a bond to secure them.

PER CURIAM.

The plaintiff brought this action returnable to the City Court of Meriden, naming a garnishee in the writ. From the officer's return it appears that he served the writ upon the garnishee only six days before the return day and did not serve it upon the defendant at all, as he could not find him. The defendant entered a special appearance and pleaded in abatement lack of proper service upon him. He omitted any prayer for judgment, but later the trial court permitted him to amend the plea so as to include such a prayer and we cannot say the court abused its discretion in this ruling. Mitchell v. Smith, 74 Conn. 125, 126, 49 A. 909. The plaintiff filed a demurrer to the plea, which the trial court overruled. By the charter of the city, as it stood previous to 1923, service of a writ returnable to the City Court upon a defendant living in Meriden was to be made twelve days before the return day but no special provision was made as to the time when process should be served upon a garnishee; Special Laws of 1921, pp. 963, 964; hence the provision of the general statute requiring that such service should be made at least twelve days before the return day was applicable. General Statutes, § 5763. In 1923 the section of the charter dealing with service upon a defendant resident in the city was amended to provide that it should be made not less than six days before the return day; Special Laws of 1923, p. 158; but this would not affect the time required for service upon a garnishee. It follows that, as there was no service upon the defendant and no valid service upon the garnishee, the writ was abatable and the demurrer to the plea in abatement was properly overruled. It is true that the defendant, after the overruling of the demurrer, made a motion for a default against the plaintiff for failure to plead, a motion for a judgment and a motion for a bond to prosecute. So far as appears all these motions were made under his special appearance. The first two were properly regarded by the trial court as being in furtherance of the proceedings in abatement, with a view to securing a judgment upon it. Such a judgment might entitle the defendant to costs; Walko v. Walko, 64 Conn. 74, 77, 29 A. 243; Sisk v. Meagher, 82 Conn. 483, 74 A. 880; Gill v. Bromley, 107 Conn. 281, 286, 140 A. 721; and he was therefore, under his special appearance, entitled to seek a bond to secure them. General Statutes, §§ 5619, 5620. None of these motions constituted such a request for affirmative relief as destroyed the defendant's right to claim the abatement of the process. Receivers Middlesex Banking Co. v. Realty Investment Co., 104 Conn. 206, 214, 132 A. 390.

FIRST BANK OF CORDOVA v. LUCCHINI