Baldwin Piano & Organ Co. v. Blake

The defendants appeal from a decision of the trial court finding them in contempt for violation of a prejudgment remedy order issued by the court.

The defendants entered into a retail installment contract and security agreement with the plaintiff for the purchase of a Baldwin piano. On the defendants’ default in their payments, the plaintiff declared the balance of the price immediately due in accordance with the default clause in the contract. When the defendants failed to pay, the plaintiff applied for a prejudgment remedy to replevy the piano. The court granted the application. The sheriff attempted to replevy the piano, but, as he attested, “the defendant Gladys Blake, who has possession of said piano, would not let me in the house to replevy such piano. Therefore, I return this Order of Replevin unserved and unsatisfied.” The record does not show whether the sheriff also attempted to serve the writ, summons and complaint. It is clear, however, that the writ, summons, and complaint have never been served.

The plaintiff filed a motion for contempt, alleging that the defendants “violated and disobeyed the Order for Prejudgment Remedy in that they refused to allow a duly authorized sheriff to enter the premises wherein said piano has been wrongfully detained by the defendants, for the purpose of retaking same on behalf of the plaintiff.” The plaintiff filed a rule to show cause why the defendants should not be adjudged in contempt of court for having “violated and disobeyed the Order for Prejudgment Remedy.”

The defendants moved to dismiss the prejudgment remedy under General Statutes § 52-278j, in that more than ninety days from the issuance of the replevy order had passed without service of the writ, summons, and complaint. They then filed claims of law raising again the jurisdictional issue of their motion to dismiss the replevy order for lack of service within the ninety-day period required by General Statutes § 52-278j. In response to the rule to show cause the defendants again “specifically [brought] the court’s attention to defendants’ claim of lack of jurisdiction . . . .” At the hearing on the plaintiff’s motion for contempt and rule to show cause the defendants raised the issue yet again.

The trial court did not address the defendants’ repeated jurisdictional challenges, but concluded: “the defendants may be held in contempt for violation of the prejudgment remedy order of this court.” From that finding of contempt the defendants have appealed to this court.

At the outset this court is confronted with a challenge to the jurisdiction of the Superior Court to hear the plaintiff’s motion for contempt. “Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it ‘can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.’ Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 717 [1838]; Denton v. Danbury, 48 Conn. 368, 372 [1880].” Woodmont Assn. v. Milford, 85 Conn. 517, 524, 84 A. 307 (1912). The point has been frequently made. See, e.g., Kohn Display & Woodworking Co. v. Paragon Paint & Varnish Corporation, 166 Conn. 446, 448, 352 A.2d 301 (1974); East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 559, 290 A.2d 348 (1971); Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966); Felletter v. Thompson, 133 Conn. 277, 280, 50 A.2d 81 (1946) (Maltbie, C. J.). We conclude that the trial court should have addressed the defendants’ jurisdictional challenge before ruling on the plaintiff’s motion for contempt. Accordingly, we hold that the court erred in failing to decide the jurisdictional claim raised by the defendants’ motion to dismiss.

There is error, the judgment of the trial court is set aside and the case is remanded to the trial court for further proceedings consistent with this opinion.

In this opinion Healey, Armentano and BREnnAn, Js., concurred.

General Statutes § 52-278j (a) provides: “If an application for a prejudgment remedy is granted but the plaintiff, within ninety days thereof, does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed, the court on its own motion or on the motion of any interested party may dismiss the prejudgment remedy.”