Algonquin Gas Transmission Co. v. Becker

Full title: ALGONQUIN GAS TRANSMISSION COMPANY v. FLORENCE A. BECKER ET AL

Court: Superior Court, Fairfield County At Bridgeport

Date published: Jun 5, 1952

25 Conn. Supp. 448 (Conn. Super. Ct. 1952)

206 A.2d 846

Opinion

File No. 86575

A case is pending in court from the time it is returned to the court. It then passes beyond the physical control of the litigants and into that of the court, even though the return day has not arrived. An appearance or any proper pleading may be filed at any time after, although never before, a process is returned to court. The original process in this condemnation proceeding under the Natural Gas Pipe Lines Act was returned to the court on April 7. The return day was the first Tuesday of May. On April 8, the plaintiff applied to the court for an order granting a right of immediate entry, and an order of notice was issued and service made. The defendants, specially appearing, claimed lack of jurisdiction on the ground that only a judge of the Superior Court, as distinguished from the court, could entertain the application before the return day. The statute (now § 16-267) expressly authorized the court to entertain such an application in any condemnation proceedings "pending" before the court. Held that the present proceedings were so pending, and therefore there was no lack of jurisdiction.

Memorandum filed June 5, 1952¹

1 Publication of this decision was determined upon after its use as precedent in subsequent cases.

Memorandum granting application for right of immediate entry.

Day, Berry Howard, of Hartford, for the plaintiff.

Herbert L. Emanuelson and Lyman H. Steele, of New Haven, specially for all defendants.

KING, J.

This was an application for an order granting to the petitioner, a natural gas pipeline company, a right of immediate entry upon the lands of the respondents located in Newtown.

A condemnation proceeding was brought by the petitioner under the provisions of the Natural Gas Pipe Lines Act, chapter 264a of the 1951 Cumulative Supplement,² by writ and complaint dated March 31, 1952 and returnable to the Superior Court in Fairfield County on the first Tuesday of May, 1952. The original process was actually returned to court and filed in the clerk's office on April 7, 1952. Subsequently, on April 8, 1952, the petitioner applied to the court for an order granting a right of immediate entry upon the respondent's lands under the provisions of § 1076b of the 1951 Cumulative Supplement,³ and an order of notice was issued and service made. The defendants appeared specially, and the parties cooperated with the court in joining issues by pleadings subsequent to the petition consisting of an answer, a reply, and a rejoinder. For convenience, the first and second special defenses of the answer will be taken up first, and in inverse order.

2 Now General Statutes, c. 284.

3 Now General Statutes § 16-267.

SECOND SPECIAL DEFENSE

The special appearance was incident to a claim of lack of jurisdiction interposed in the second special defense of the answer on the ground, in effect, that under § 1076b only a judge of the Superior Court (as distinguished from the Superior Court) could entertain this proceeding before the return day. This would very likely be a sound position had the order been entered prior to the return of the process to the court. But here the court did not assume to act until after the process had been so returned. Service had been made, as shown by the officer's return, and all defendants had actual notice, as shown by the special appearance. The case was in the court, where a more orderly trial could be had than in chambers. The defendants are benefited rather than harmed by the procedure followed. An appearance or any proper pleading may be filed at any time after, although never before, a process is returned to court. The fact, even if correct, that a chambers hearing might also properly have been ordered does not militate against the use of the inherently preferable procedure followed here. A case is pending in court from the time it is returned to the court. It then passes beyond the physical control of the litigants and into that of the court. This all takes place even though the return day has not arrived. Section 1076b expressly authorizes the court to entertain a motion for immediate entry in any condemnation proceeding "pending" before it. This proceeding was so pending.

KING, J.

[Remainder of opinion omitted.]