Opinion
No. SPNH 9708-51675
October 16, 1997
MEMORANDUM OF DECISION
The issue raised by the defendant's motion to dismiss this summary process action is when does a writ, summons and complaint "issue," within the meaning of General Statutes § 47a-23a(a).
On July 15, 1997, the plaintiff's attorney signed a notice to quit directing the defendants to quit possession of the demised premises on or before July 28, 1997. That notice was served on the defendants on July 17, 1997. On July 28, 1997, the plaintiff's attorney signed the summons and complaint in this action. Those documents were served on the defendants on August 3, 1997, and the original summons and complaint was filed with the court on August 5, 1997.
The defendants have moved to dismiss the action claiming that since the summons and complaint are dated July 28, they therefore were issued prior to the expiration of the date set forth in the Notice to Quit, in violation of General Statutes § 47a-23a(a).
General Statutes § 47a-23 (a) provides in relevant part: "When the owner or lessor, or his legal representative, or his attorney-at-law or in-fact, desires to obtain possession or occupancy of any land or building, any apartment in any building, any dwelling unit, any trailer, or any land upon which a trailer is used or stands . . . such owner or lessor, or his legal representative, or his attorney-at-law, or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least five days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy. General Statutes § 47a-23a(a) thereafter provides in relevant part: "If, at the expiration of the five days the lessee or occupant neglects or refuses to quit possession or occupancy of the premises, any commissioner of the Superior Court may issue a writ, summons and complaint. . . . " (Emphasis added.) The parties agree that the phrase "expiration of five days" is referable to the quit date. The issue here is what is meant by "issue." The defendants contend that a writ, summons and complaint "issues" when a commissioner of the superior court signs it.
"Our resolution of this issue is guided by well established principles of statutory construction. `Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Citations omitted; internal quotation marks omitted.) Duni v. United Technologies Corp./Pratt Whitney Aircraft, 239 Conn. 19, 24, 682 A.2d 99 (1996).
First, we look to the words of the statute. "In interpreting the language of a statute, the words must be given their plain and ordinary meaning and their natural and usual sense unless the context indicates that a different meaning was intended. Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981)." Oller v. Oller-Chiang, 230 Conn. 828, 848, 646 A.2d 822 (1994); see General Statutes § 1-1(a) "In order to ascertain the plain meaning of a word, it is appropriate to look to the dictionary definition." Washington v. Meachum, 238 Conn. 692, 714 n. 14, 680 A.2d 262 (1996).
General Statutes § 1-1(a) provides: "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly."
Issue is defined as: "1 a: to go, come, or flow out b: to come forth: EMERGE c: to come to an issue of law or fact in pleading 2: ACCRUE profits issuing from the sale of the stock 3: to descend from a specified parent or ancestor 4: to be a consequence or final outcome : EMANATE, RESULT 5: to appear or become available through being officially put forth or distributed 6: EVENTUATE, TERMINATE vt 1: to cause to come forth: DISCHARGE, EMIT 2 a: to put forth or distribute usu. officially government issued a new airmail stamp~orders b: to send out for sale or circulation: PUBLISH syn see SPRING — issuer n." Webster's Ninth New Collegiate Dictionary (1991).
However, "[u]nder [General Statutes] § 1-1(a), specialized legal terms are to be construed according to their proper meaning as understood in the law." Cislo v. Shelton, 40 Conn. App. 705, 712, 673 A.2d 134 (1996), rev'd on other grounds, 240 Conn. 590, 692 A.2d 1255 (1997). The word "issue" qualifies as a specialized legal term. Cf. id. ("dismisses" and "not guilty" are technical legal terms.).
A definition of the verb "issue" does not appear in Connecticut case law. It is so that in New Haven Sand Blast Co. v. Dreisbach, 102 Conn. 169, 182, 128 A. 320 (1925), the court stated that patent "rights may be said to be issued by the United States in the sense that they are granted by or conferred by it or issued from it." This definition, however, does not illuminate the definition of the verb in the context in which it is used in General Statutes § 47a-23a.
In Article 3 of the Uniform Commercial Code, governing negotiable instruments, General Statutes § 42a-3-105 (a) provides: "`Issue' means the first delivery of an instrument by the maker or drawer, whether to a holder or nonholder, for the purpose of giving rights on the instrument to any person." Connecticut courts "have, `on a number of occasions . . . looked to the [UCC] as a fruitful source of analogy.'" Steelcase, Inc. v. Crystal, 238 Conn. 571, 586, 680 A.2d 289 (1996). They usually have done so, however, in cases involving commercial or business transactions. See id.; Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 585, 657 A.2d 212 (1996); Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 501, 646 A.2d 1289 (1994). "The code was drafted to simplify, clarify, modernize and unify the law of commercial transactions. General Statutes § 42a-1-102 (2)." Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 502. In New England Yacht Sales, Inc. v. Commissioner, 198 Conn. 624, 630, 504 A.2d 506 (1986), however, the Supreme Court stated that it was "worth examining the relevant sections of the sales article of the code to see what illumination they shed on the problem" of when title passes within the contemplation of General Statutes § 12-408 (1) of the Connecticut sales tax.
The definition of "issue" in General Statutes § 42a-3-105 (a) is consistent with the definition of the word "issue", as a verb, as it is used in other areas of the law, insofar as § 42a-3-105 (a) contemplates "delivery". Black's Law Dictionary (5th Ed. 1979) defines "issue" as meaning: "To send forth, to emit, to promulgate; as, an officer issues orders, process issues from a court. To put into circulation; as the treasury issues notes. To send out, to send out officially; to deliver, for use, or authoritatively; to go forth as authoritative or binding. When used with reference to writs, process, and the like the term is ordinarily construed as importing delivery to the proper person, or to the proper officer for service, etc." (Emphasis added.)
This dictionary definition comports with the nearly universal meaning accorded the verb "issue", with respect to process, in other jurisdictions. The term "issue" means more than mere clerical preparation, dating, and attestation of a writ, and as applied to a citation, includes delivery to an officer or third person for delivery to an officer for service. Snell v. Knowles, 87 S.W.2d 871, 876 (Tex.Civ.App. 1935); State v. Brown, 103 N.J.L. 519, 138 A. 370, 370-71 (1927). "Generally, to `issue' means to deliver process to an officer charged by law with its service." DeKalb Swine Breeders, Inc. v. Woolwine Supply Co., 248 Kan. 673, 809 P.2d 1223, 1227 (1991); see State v. Moriarty, 914 S.W.2d 416, 424 (Mo.App.W.D. 1996); Pilgrim Distributing Corp. v. Galsworthy, 79 Ohio App. 529, 74 N.E.2d 579, 583 (1947); Hoover Lines v. Whitaker, 22 Tenn. App. 223, 120 S.W.2d 983, 987 (1938); Louisville N. R. R. Co. v. Little, 264 Ky. 579, 95 S.W.2d 253, 255 (1936), and cases cited therein; Vallon v. Morris Cleaners Dyers, Inc., 167 So. 887, 889 (La.App. 1936); Luzerne National Bank v. Gosart, 322 Pa. 446, 185 A. 640, 641 (1936); Hufstedler v. Harral, 54 S.W.2d 353, 355 (Tex.Civ.App. 1932), reh. denied; McIntosh v. Standard Oil Co., 121 Neb. 92, 236 N.W. 152, 157 (1931); Borgen v. Corty, 181 Minn. 349, 232 N.W. 512, 513 (1930); Morrison v. Lewis, 197 N.C. 79, 147 S.E. 729, 730-31 (1929); Ferguson v. Estes Alexander, 214 S.W. 465, 466 (Tex.Civ.App. 1919); In re John's Estate, 253 Pa. 532, 98 A. 719-20 (1916); McMaster v. Ruby, 80 Or. 476, 157 P. 782, 784 (1916); Southern Ry. Co. v. Dickens, 163 Ala. 114, 50 So. 109-110 (1909); Marshall v. Matson, 171 Ind. 238, 86 N.E. 339, 342 (1908); People ex re. McCallum v. Gebhardt, 154 Mich. 504, 118 N.W. 16, 17 (1908); Webster Mfg. Co. v. Penrod, 103 Minn. 69, 114 N.W. 257-58 (1907); Oskaloosa Cigar Co. v. Iowa Central Ry. Co., 89 N.W. 1065 (Iowa 1902); Barth v. Burnham, 105 Wis. 548, 81 N.W. 809, 810 (1900); Webster v. Sharpe, 116 N.C. 466, 21 S.E. 912, 914 (1895). This court agrees and declines to follow those superior court cases holding otherwise.
"When the language [of a statute] is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent." Oller v. Oller-Chiang, supra, 230 Conn. 848.
However, application of the other principles of statutory construction enumerated supra — legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter — does not suggest a different result. First, there is no legislative history illuminating what the legislature meant by "issue" in the statutory predecessors to General Statutes § 47a-23a(a). The substance of that provision had been part of what is now General Statutes § 47a-23; see, e.g., General Statutes (Rev. 1949) § 8274; and dates back nearly 200 years. See Public Acts 1806, p. 729; General Statutes, 1808, p. 450; see also General Statutes, 1821, Title 52, ch. 3 § 1. There is no official legislative history for legislation of this vintage. Notably, when, at the inception, the word "issue" was used in the legislation, it was at a time when the statute provided that only a justice of the peace in the town where the property was located could issue a summary process writ.
With respect to "the circumstances surrounding its enactment," no better summary has been given than that in Housing Authority v. Jones, 5 Conn. Cir. 350, 252 A.2d 465 (App.Div. 196 8), wherein the court wrote: "Our statute was modeled on an English statute ( 11 Ga. 2, c. 19 [1737]), which `provided a summary manner of recovering possession of real property when the tenant either abandoned the leased premises during the term without surrendering the lease, or continued in possession after the expiration of his term, or became unable or unwilling to compensate the landlord for the value or the use and occupation of the premises. This statute was designed to dispense with the tedious delays of the common law action of ejectment and to enable the landlord to speedily regain lawful possession of the demised premises in case his tenant held over and refused to pay the rent promptly according to the terms of the lease.'" Id., 352, quoting 2 McAdam, Landlord and Tenant (5th Ed. 1934) § 269. Again, this does not clarify what was meant by the verb "issue" in the statutory predecessor to General Statutes § 47a-23a(a).
The "common law principles governing the same subject matter" have been adverted to in the text supra, in the discussion and citation of cases from other jurisdictions which militate in favor of interpreting "issue" to mean "to deliver process to an officer charged by law with its service." DeKalb Swine Breeders, Inc. v. Woolwine Supply Co., 248 Kan. 673, 809 P.2d 1223, 1227 (1991).
As for "legislation . . . governing the same general subject matter," General Statutes § 47a-15a provides: "If rent is unpaid when due and the tenant fails to pay rent within nine days thereafter or, in the case of a one-week tenancy, within four days thereafter, the landlord may terminate the rental agreement in accordance with the provisions of sections 47a-23 to 47a-23b, inclusive." General Statutes § 47-23(a) provides that a notice to quit must give the occupant, lessee or tenant five days before the quit date. General Statutes § 47a-23a(a) provides that a writ, summons and complaint may then issue. An obvious purpose of this last time period is to allow the tenant an opportunity to relocate before burdening both parties and the judicial system with the expense of litigation. That purpose is not seriously advanced by prohibiting a lawyer from even signing a summons in the dark, dank and dusty recesses of his chambers, removed from the light of day and the gaze of other living beings. Moreover, when General Statutes § 47a-23 speaks in terms of signing, it expressly says so. See General Statutes § 47a-23 (b) (signing notice to quit).
However, the date of a writ is prima facie evidence of the time it was actually issued. People ex rel. McCallum v. Gebhardt, supra, 118 N.W. 17. This is a rule of convenience and is not so at odds with common practice as to when sheriffs obtain writs from lawyers for service as to be a fiction. Although the plaintiff has not sought to adduce any evidence that the summons and complaint were delivered to the serving officer on a day other than that on which the summons and complaint were signed, the rule announced here as to when process is issued is new. The proper course was unclear enough to excuse the plaintiff who was under the reasonable belief that the rule was such that he need not adduce any evidence. Castellon v. Board of Zoning Appeals, 221 Conn. 374, 383, 603 A.2d 1168 (1992); Marciniak v. Wauregan Mills, Inc., 139 Conn. 264, 269, 93 A.2d 135 (1952); Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 353, 494 A.2d 606, cert. denied, 197 Conn. 806, 499 A.2d 57 (1985). For this reason, an evidentiary hearing shall be scheduled by counsel and the clerk of the court at any early date. If the court, in light of the evidence and the prima facie presumption, finds that the writ of summons and complaint were issued to the sheriff on the date the writ of summons was signed, the court will grant the motion to dismiss.
For this reason, a commissioner of the superior court — including a private attorney not acting within an attorney-client relationship or a clerk of the court — who is requested to sign a summons in a summary process action should not do so until the time specified in the notice to quit for the lessee or occupant to quit possession or occupancy has expired.
LEVIN, J.