Palmer v. Reeves , 120 Conn. 405 ( 1935 )

The appellees filed a plea in abatement in this and a companion case, which was overruled.^* This is an appeal from certain orders of the Court of Probate allowing the final account of the estate of Louisa T. Palmer and making distribution of the property comprising it. In the appeal the plaintiff alleged that he is a grandson of the deceased and an heir at law and legatee of her estate and that he was aggrieved by the orders. In the Superior Court the defendants filed a plea to the jurisdiction in which they denied that the plaintiff was a grandson of the deceased and affirmatively stated his alleged true parentage, and further pleaded that he was not aggrieved by the orders referred to in the appeal. The trial court denied a motion to strike out this plea, the plaintiff answered it with a general denial, and the issue of the true parentage of the plaintiff was tried. From a judgment sustaining the plea the plaintiff has appealed, the substantial ground alleged being that the issue whether or not he was a grandson of the deceased and so an heir at law and legatee could not properly be raised upon a plea to the jurisdiction.

Courts of Probate are strictly statutory tribunals exercising only such powers as are conferred upon them by statute and having jurisdiction only when the facts upon the existence of which the Legislature has conditioned their exercise of power exist. Stiles' Appeal,41 Conn. 329, 330; Coe's Appeal, 64 Conn. 352,360, 30 A. 140; Beach's Appeal, 76 Conn. 118, 122,55 A. 596; Massey v. Foote, 92 Conn. 25, 26,101 A. 409. Thus, unless the deceased died a resident of the district, the Court of Probate is without jurisdiction to administer his estate; Whitehead v. Roberts,86 Conn. 351, 354, 85 A. 538; and unless a parent as the natural guardian of a child has first been removed, the Court of Probate is without jurisdiction to appoint another as guardian. Lewis v. Klingberg, 100 Conn. 201,123 A. 4. The Superior Court in acting upon an appeal from probate is itself acting as a Court of Probate; it has the same powers and is subject to the same limitations. Mallory's Appeal, 62 Conn. 218,223, 25 A. 109; Mack's Appeal, 71 Conn. 122, 132,41 A. 242; Wilson v. Warner, 84 Conn. 560, 564,80 A. 718. It is not exercising the judicial powers vested in it by the Constitution but is exercising a special and limited jurisdiction conferred upon it by the statutes.Slattery v. Woodin, 90 Conn. 48, 51, 96 A. 78; Livingston'sAppeal, 63 Conn. 68, 74, 26 A. 470. Unless the conditions which the statutes have designated as essential to the exercise of its powers upon such an appeal are complied with, the Superior Court is without jurisdiction to act upon it. Orcutt's Appeal,61 Conn. 378, 382, 24 A. 276; Fuller v. Marvin,107 Conn. 354, 357, 140 A. 731. The cases last cited establish that one of the essentials of a valid appeal is the fact that the appellant is aggrieved by the order appealed from. As the judgment of the court upon an appeal attempted to be taken by one not aggrieved would be void and ineffective, the court may properly refuse to proceed further with the matter when the question of its jurisdiction has been raised, until that issue is determined. Olmstead's Appeal, 43 Conn. 110,112; Gill v. Bromley, 107 Conn. 281, 285, 140 A. 721.

In Olmstead's Appeal, supra, one reason of appeal assigned was that the deceased died a resident of another probate district than that of the court in which was rendered the decree from which the appeal was taken. The trial court rejected the evidence offered in support of that reason and this was held to be erroneous. The majority opinion contains this statement (p. 114): "Common sense indeed teaches that a question so vital as that of jurisdiction should be decided preliminarily to all others. Accordingly all treatises on pleading direct that pleas to the jurisdiction are to be filed first. Such, manifestly, is the natural order of pleading, for if any other plea be filed, the jurisdiction of the court is admitted. If the want of jurisdiction appears on the record, no plea need be interposed. The court, when the fact is brought to its notice, by motion or otherwise, in any stage of the case, will take proper action, and strike the case from the docket. If the want of jurisdiction does not appear of record, and the parties appear and go to trial on the merits, it is matter of discretion with the court, whether, on suggestion of facts going to show want of jurisdiction, the trial on the merits shall or shall not be suspended, and evidence shall or shall not be heard." The court then went on to say: "If the information does not come early, it must not be rejected if it comes late. Whenever and however it comes, it should be received as the suggestion of anamicus curiae, and the proper legal action promptly taken." CARPENTER, J., in his dissent said (p. 124): "The conclusion, in which we all concur, that the matter pertaining to the jurisdiction of the Court of Probate was not a legitimate and proper reason for the appeal, should, I think, have been an end of the case. I regard it as a sufficient and complete vindication of the ruling of the court below. That matter was stated as a reason of appeal. There was no attempt to use it in any other way or for any other purpose. There was no plea to the jurisdiction and no motion to erase from the docket. On the contrary the pleadings show, what was true in fact, that the appellant attempted to take advantage of it on the trial of the cause upon its merits. That was irregular, unlawyer-like and improper. . . . There are two ways of removing a case from the docket for want of jurisdiction. 1. By motion, oral or written. 2. By a plea to the jurisdiction. The first is proper only when the want of jurisdiction is apparent on the record. The second must be resorted to in all cases where the matter showing the want of jurisdiction is dehors the record. Such is the case before us. Before the question can be raised the facts must be stated in a plea; and when so stated are traversable; and when traversed, or an issue is formed in any other way, then, and not till then, can the court properly proceed to hear the evidence and try the issue." That decision establishes that an appellee is entitled to raise by a plea to the jurisdiction the question of the existence of a condition essential to a valid appeal. It is conclusive of the case before us because proof that the appellant was a grandson of the deceased and as such an heir at law and legatee, was necessary in order to show that he was aggrieved by the orders appealed from and hence that the Superior Court had jurisdiction of the appeal. The issue was properly raised by and tried under the plea to the jurisdiction.

The various motions made by the plaintiff after judgment presented no new or different issue from that arising upon the motion to erase the plea to the jurisdiction and the court acted rightly in denying them.

There is no error.

In this opinion the other judges concurred.