Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co.

ferred by statute or rule of practice; and I feel warranted therefore in assuming that unless it is so conferred it does not exist.

In the present case the power of the court to dismiss the complaint is claimed under rule V. of the General Rules of Practice adopted in 1890, and found in the 58th volume of our reports, and under § 999 of the Revision of 1888. Unless thus conferred the power, I think, does not exist. Let us examine these two sources. The rule reads as follows:-"If a party fails to comply with an order or rule, he will be nonsuited or defaulted, and upon motion to set aside such nonsuit or default the court may grant the motion upon compliance with such terms as the court may impose." Under this rule the question is whether the ruling or order to elect in the present case was "an order or rule " within the meaning of Rule V. The words "order or rule," standing alone as in Rule V, are ambiguous; they may mean a general rule or order of practice or procedure, or some particular order or ruling made between parties in a given cause. To ascertain which of these meanings is the one intended we must apply the ordinary rules of interpretation. These words are practically synonyms, and are freely used as such in the dictionaries and in common speech. They are so used in law also. Black on Judgments, vol. 1, pp. 5, 6. I think they are used synonymously in Rule V, and must mean either a general rule made by the judges pursuant to law, or a special incidental order or ruling, made by the court in the trial of a If the latter, then every "ruling" made in a cause is a "rule or order" within the meaning of Rule V; for the dictionaries define a "ruling" as a "decision or rule" of a judge or court.

cause.

If this be the correct interpretation of Rule V, then a party may be nonsuited for noncompliance with, or disobedience of, any such ruling, and thus may be put out of court against his will for a great many causes besides those specifically provided for by statute or general rule. This certainly works a very great and radical change in our practice in this respect; for, prior to 1890 as we have seen, this power was

Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co.

always conferred specifically in given cases under clearly defined circumstances, that usually left no room for doubt or dispute; and whether given by statute or by general rule, it was given quite sparingly and only in cases where it was deemed advisable to confer it. But under the claim now made, it is given generally and without apparent limitation, and of course may be used in cases where there may be great doubt as to whether the ruling is or is not erroneous.

I cannot believe that in adopting Rule V the judges intended to depart so widely and so radically from the former practice. It may well be doubted whether they had the power to provide by general rule sanctions of this kind for every special ruling or order made in a cause. They are expressly empowered to make general rules, and this by necessary implication gives the power to provide sanctions for these rules; but the power to provide sanctions for every special ruling is a very different matter, and is not given I think either expressly or by implication. But if we assume that they had the power, I think they have not exercised it. Had they intended to depart so widely from the former practice as is now claimed, they would have expressed themselves to that effect more clearly than they have in Rule V. There existed in 1890 no good reason why they should confer the power to nonsuit or default in this general way; for the Superior Court as a court of general jurisdiction already possessed ample power to enforce its special orders and rulings by methods quite as efficient as those pointed out in Rule V. Besides this it already possessed the power to nonsuit or default in all special cases where the legislature or the judges had deemed it advisable to confer it. Under these circumstances, I do not think the judges intended to confer it in all cases without limitation, and thus render superfluous the statutes by which it was specially conferred; especially when there existed no good reasons for so doing. For these reasons I think the rule invoked does not confer the power in question.

The power to dismiss is also based upon § 999 of the General Statutes. The difficulty here is that even under

Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co.

the most liberal construction of the statute the order in tion does not fairly fall within it.

ques

The object of the statute is to compel the parties to "make their pleas and join issue." If the plaintiff fails to do this according to the order of the court he shall be nonsuited; if the defendant so fails judgment may be rendered against him as upon nihil dicit. The end of the statute is attained when the parties have "made their pleas and joined issue." The court cannot use the power thus conferred for any other purpose. In the case at bar the pleadings were closed; the defendant under § 13 of Rule IV of the Practice Book had waived any exception for misjoinder; and the trial was in progress. Under these circumstances the plaintiff having offered evidence of a breach of contract, then offered evidence to prove a tort; thereupon the defendant claimed that the plaintiff could not proceed for both causes of action and that it had already elected to proceed for breach of contract. The court held that the plaintiff had not made its election but ordered it to do so. This was not an "order of the court in pleading" within the statute.

If in a criminal case like that of State v. Bates, 10 Conn., 372, the court orders the prosecutor to confine himself to the act concerning which evidence has first been given; or if the prosecutor charging two distinct and separate felonies in one information, is ordered to elect, these can hardly with propriety be called orders of the court relating to the pleadings in such cases. Or if under § 1032 of the General Statutes the court orders one or more of the issues joined to be tried before the other, such order can hardly be called an "order of the court in pleading" within § 999.

The truth is the court made no "order in pleading." The pleadings were not to be changed at all, but were to remain precisely as the parties had made them. The power to dismiss a cause in this way ought not to be exercised except in cases where it is clearly conferred; and even in such cases it ought to be exercised sparingly, for such a power is "not the daily bread but the strong medicine" of the law.

For these reasons I think the judgment of the court below was either erroneous or void.

MEMORANDA OF CASES

NOT REPORTED IN FULL.

FRANK SLAVIN v8. NEW YORK, NEW HAVEN & HARTFORD RAILROAD Co.

First Judicial District.

[Submitted on briefs October 4th-decided November 7th, 1893.]

APPEAL by plaintiff from a judgment of the Superior Court (Robinson, J.), of Litchfield County, awarding him only nominal damages for injuries received while in the employment of the defendant as a brakeman. The trial court found the plaintiff guilty of contributory negligence, and that but for such negligence he would not have been hurt.

Henry C. Baldwin and R. E. Hall, for appellant (plaintiff.)

Walter S. Judd, for the appellee (defendant.)

BY THE COURT: No error; judgment affirmed. Opinion by Andrews, C. J. All concur. Opinion filed with the clerk of the Superior Court, Litchfield County.

PATRICK MCCARTHY v8. THE CITY OF NEW BRITAIN. First Judicial District.

[Submitted by briefs October 14th-decided November 7th, 1893.]

APPEAL by the defendant from a judgment of the Supe rior Court (Robinson, J.), of Hartford County, awarding the

Terry & Co. v. Bates.

plaintiff $2,000 damages for personal injuries received on account of the negligence of the defendant in failing to keep a certain sidewalk in proper condition. The defendant suffered a default, and the case was heard in damages to the court. The trial court found that the defendant was guilty of negligence, and that through this negligence the plaintiff suffered his injury.

B. F. Gaffney and F. L. Hungerford, for the appellant (defendant.)

Wm. F. Henney and John W. Coogan, for the appellee (plaintiff.)

BY THE COURT: No error; judgment affirmed. Opinion by Andrews, C. J. All concur. Opinion filed with the clerk of the Superior Court, Hartford County.

WILLIAM M. TERRY & Co. vs. ALLEN B. BATES.

Third Judicial District.

[Argued October 25th-decided November 7th, 1893.]

APPEAL by the plaintiffs from a judgment for defendant rendered by the Court of Common Pleas (Curtis, J.), of Fairfield County, in an action for fraud in obtaining goods. The trial court found that the defendant in his dealings with the plaintiffs had no intent to defraud them.

Jos. A. Gray, for the appellants (plaintiff.)

James H. Olmstead, for the appellee (defendant.)

BY THE COURT: No error; judgment affirmed. Opinion by Andrews, C. J. All concur. Opinion filed with the clerk of the Court of Common Pleas, Fairfield County.