Sisk v. Meagher , 82 Conn. 483 ( 1909 )

An appeal by the defendant to the June term of this court in 1909, from a judgment of the Court of Common Pleas in favor of the plaintiff, was met by a plea in abatement, on which the plaintiff obtained a judgment abating the appeal, with costs. The defendant claims that no costs were taxable, on the ground that costs are an incident to a cause, and the judgment shows that there was no cause pending. General Statutes, § 4840, authorizes the allowance of costs to the prevailing party "in causes pending in the Supreme Court of Errors."

The defendant brought here what she claimed to be an appeal, and it was docketed as such. Had the want of jurisdiction been so apparent as to found a motion to erase, an order erasing it from the docket would not have carried costs. Parmalee v. Bethlehem, 57 Conn. 270, 18 A. 94. But the proper office of a plea in abatement is to state facts not apparent on the record. O'Brien's Petition, 79 Conn. 46,63 A. 777. If an issue is presented as to whether they are true or sufficient, the court necessarily has jurisdiction to determine that issue, and its determination, if in favor of the pleader, disposes of what, within the meaning of the statute, is, as between the parties to the proceeding, a pending cause, and makes the appellee the prevailing party.

A form of judgment on such a plea was prescribed by this court in 1897, and concludes thus: "It is therefore considered and adjudged that the appeal abate and be dismissed and that the appellee recover $ ____ costs, and execution issue accordingly." This is justified by the considerations above stated.

The action of the clerk is affirmed.