Summary
In Willard v. West Hartford, 135 Conn. 303, 305, 63 A.2d 847 (1949), an appeal from the decision of a zoning board of appeals, we stated that "[t]he plaintiff is a commissioner of the Superior Court and himself signed the citation.
Summary of this case from Brunswick v. Inland Wetlands CommissionOpinion
When provisions of the general statutes cover the same field as those of a previously enacted special law, the former prevail. It is the duty of the court to act whenever lack of jurisdiction of the subject matter comes to its attention. A special law passed in 1925 provided for appeals from decisions of the zoning board of appeals of West Hartford to the Court of Common Pleas or the Superior Court. Subsequent statutes gave the Court of Common Pleas exclusive jurisdiction. Held that the Superior Court did not have jurisdiction of the present appeal and it should have dismissed the case for lack of jurisdiction.
Argued November 5, 1948
Decided January 7, 1949
Appeal from a decision of the zoning board of appeals of the town of West Hartford which approved the granting of certain building permits, and claiming a declaratory judgment and damages, brought to the Superior Court in Hartford County, where demurrers to pleas in abatement were overruled, Shea, J., motions to expunge and strike out an amendment were granted, Alcorn, J., and judgment was rendered, Mellitz, J., that the writ abate and be dismissed, from which the plaintiff appealed. Error and case remanded with direction.
The appellees filed motions to erase the appeal which were denied.
PER CURIAM. The ground of the motions to erase the appeal is in substance that the attorney who signed it on behalf of the plaintiff had not entered an appearance in the case, and the claim of the defendants is that the appeal was for this reason invalid. Even if this contention is correct, the defect would not go to the jurisdiction of this court but might be waived by the defendants. The only proper way to raise the issue would be by plea in abatement. Klein v. Capitol National Bank Trust Co., 124 Conn. 685, 686, 2 A.2d 489. The motions are denied.
John W. Joy, for the appellant (plaintiff).
Albert S. Bill, with whom, on the brief, was Harrison D. Schofield, for the appellees (named defendant et al.).
Arnold M. Sweig, with whom, on the brief, was Edward S. Rogin, for the appellees (defendants Mauser).
The plaintiff has attempted to appeal to the Superior Court from a decision of the zoning board of appeals of West Hartford. The case is an apt illustration of the application of the familiar maxim about the lawyer who is his own client.
Practically everything is wrong with this appeal. The plaintiff is a commissioner of the Superior Court and himself signed the citation. This he may not do. Doolittle v. Clark, 47 Conn. 316, 320; Yudkin v. Gates, 60 Conn. 426, 428, 22 A. 776. He failed to furnish a bond with surety as required by the special law providing for the appeal. 19 Spec. Laws 937, 11. The first twenty-eight paragraphs of his so-called complaint end with the statement: "Wherefore the plaintiff appeals from the decision of the Board of Appeals which approved the appealed permits and prays the court to direct said board to revoke said permits." There is then added a paragraph and prayers for relief requesting a declaratory judgment as to the legality of the action of the board and damages. The declaratory judgment requested would add nothing to the appeal and had no place in the case. The prayer for damages, based thereon, fell with it. The rules provide that in actions seeking a declaratory judgment "The form and practice prescribed for civil actions shall be followed." Practice Book 251(a). This was not done. Furthermore, the request for a declaratory judgment was misjoined to the appeal. New Haven v. New Haven Water Co., 132 Conn. 496, 515, 45 A.2d 831.
This leaves the appeal itself. The tortuous course pursued by the pleadings need not be discussed in the view we take of the case. Section 11, 19 Special Laws 937, provides for appeals from decisions of the zoning board of appeals of West Hartford to the Court of Common Pleas or the Superior Court. General Statutes, 429, contains the same general provision. Subsequent statutes give the Court of Common Pleas exclusive jurisdiction of such appeals. Sup. 1941, 50f, 810f. The question is: Did the General Assembly intend that the general provisions should supersede those of the special law? The following rules of construction are well settled. When provisions of the general statutes (1941) cover the same field as those of special law (1925) the former prevail. Hutchison v. Hartford, 129 Conn. 329, 332, 27 A.2d 803. This is particularly true where, as in this case, the former are repugnant to the latter. Stamford v. Stamford, 107 Conn. 596, 608, 141 A. 891; Lake Garda Co. v. LeWitt, 126 Conn. 588, 589, 13 A.2d 510; O'Keefe v. Atlantic Refining Co., 132 Conn. 613, 616, 46 A.2d 343. The provisions of the earlier special law must give way to those of the general statutes. The only tribunal which had jurisdiction of the subject matter of this appeal was the Court of Common Pleas.
It is the duty of the court to act whenever lack of jurisdiction of the subject matter comes to its attention. Foss v. Foss, 105 Conn. 502, 512, 136 A. 98; Marcil v. Merriman Sons, Inc., 115 Conn. 678, 682, 163 A. 411; In re Application of Smith, 133 Conn. 6, 8, 47 A.2d 521; Conn. App. Proc. 32. Neither the Superior Court nor this court has jurisdiction of this appeal. The judgment of the Superior Court sustained the defendants' pleas in abatement. It should have dismissed the case for lack of jurisdiction.