Cunningham v. Cunningham

Under General Statutes, § 3318, as amended by the Public Acts of 1893, p. 250, Chap. 88, it is provided that "when any person shall become poor and unable to support himself or herself and family, and shall have relatives in the degree of husband, father or mother . . . who are able to provide such support, it shall be provided by them; and if they shall neglect to provide it, the selectmen of the town or the wife of such husband or any of such relatives may bring a complaint therefor to the Superior Court of the county in which such poor person resides, against any of such relatives able to provide; which court may order the defendant to contribute to such support from the time of serving such complaint, such sum as may be reasonable and necessary, and may issue execution monthly or quarterly for the same, which, when collected, shall be paid to said selectmen or to said wife for that purpose as the court may order. And when such complaint is brought by the selectmen or wife, the court or any judge thereof, in vacation, may require the defendant to become bound with sufficient surety to such town or wife to abide such judgment as may be rendered on said complaint."

This statute is a remedial one, and to be liberally construed. The "substitute complaint" comes within its terms, and the plaintiff was entitled to an order directing a reasonable contribution towards her support and that of her infant child.

That she described the relief she claimed as equitable, if a defect, was purely a formal one, to be taken advantage of only by a demurrer to the claims. Norwalk v. Ireland,68 Conn. 1, 5. The same considerations meet the point pressed by the defendant, that the relief particularly sought is a gross sum by way of a settlement, or alimony, and not an order for payments from time to time according to the plaintiff's needs.

Nor was it necessary that her complaint should count particularly on the statute. Griswold v. Gallup, 22 Conn. 208.

"Attachments may be granted upon all complaints containing a money demand against the estate of the defendant." General Statutes, § 893. The wife, being authorized to sue, was authorized to attach. She procured an attachment, and it was dissolved, two years before her "substitute complaint" was filed, by the substitution of a bond, under General Statutes, § 929. The condition of such a bond is to pay the judgment that may be recovered, to an amount not exceeding that of the bond nor the interest of the defendant in the estate attached. General Statutes, § 933. While the bond now in question was given to get rid of the plaintiff's attachment, it is directed to the same end, so far as she is concerned, as one required by order of court under the Act of 1893. The plaintiff therefore had both a good cause of action and security for its due enforcement, at the time when judgment was rendered against her.

It is urged that the Act of 1893 was not brought to the attention of the court below, nor in any way relied upon by the plaintiff. It was, however, the law of the land, which the parties and the court were conclusively presumed to know. Errors arising from an absence of actual knowledge in such a case are always the subject of review. FourthNational Bank v. Francklyn, 120 U.S. 747, 751.

The view which we have taken of the statutory remedy makes it unnecessary to inquire whether any could be afforded under the principles of modern equity jurisprudence.

There is error.

In this opinion the other judges concurred.