
    Dialtone Corporation v. Stephen Pontiac-Cadillac, Inc.
    Appellate Session of the Superior Court
    File No. 160
    Argued November 20, 1975
    decided June 25, 1976
    
      Joseph E. Fallon, for the appellant (plaintiff).
    
      Charles J. Wood, Jr., for the appellee (defendant).
   Speziale, J.

The facts of this case may be summarized as follows: The plaintiff sought an injunction and other equitable relief to restrain the defendant from proceeding with a summary process action that was pending in the Court of Common Pleas in the seventeenth geographical area. Pursuant to General Statutes § 52-47, the action was made returnable to the Court of Common Pleas in Hartford County. Thereafter, the defendant, appearing specially, moved to erase the action from the docket on the ground that the court lacked jurisdiction because the “action should be maintained in the same geographical area [as the summary process action] or in the summary process action pending in Geographical Area # 17.” The court granted the motion on the ground that the action was “an obvious attempt to split a cause of action and . . . should not be permitted.”

The plaintiff has appealed from the judgment erasing the case from the docket. A motion to erase a case from the docket can be granted only where it clearly appears on the face of the record that the court lacks jurisdiction. Practice Book § 94; Karp v. Urban Redevelopment Commission, 162 Conn. 525, 526; Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648. The principal issue on this appeal, therefore, is whether the record reveals that the Court of Common Pleas did not have jurisdiction over this action.

Under § 52-6 of the General Statutes the Court of Common Pleas has jurisdiction over civil actions for equitable relief. It is well established that if a defendant in a summary process proceeding has equitable grounds to stay that proceeding, the proper course is to resort to equity for relief. Atlantic Refining Co. v. O’Keefe, 131 Conn. 528, 531; Winestine v. Rose Cloak & Suit Co., 93 Conn. 633, 638; Damato v. Gilman, 16 Conn. Sup. 276; Dreifuss v. World Art Group, Inc., 6 Conn. Cir. Ct. 309, 313. By statute all civil actions, except small claims, support, and summary process actions, must be made returnable to the Court of Common Pleas in the county. General Statutes § 52-47. The plaintiff’s action requesting equitable relief from the summary process action, therefore, was made returnable to the Court of Common Pleas in Hartford County on the basis of the domicil of the parties.

“A motion to erase admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” Brown v. Cato, 147 Conn. 418, 419; Perrys, Inc. v. Waterbury Redevelopment Agency, 157 Conn. 122, 124. The record in the present case supports the jurisdiction of the Court of Common Pleas over this matter. Although the plaintiff’s complaint alleged that the “defendant has instituted a summary process action ... in the Court of Common Pleas, 17th Geographical Area . . . naming the plaintiff as a defendant . . . ,” that allegation, on its face, does not support the court’s conclusion that the plaintiff’s equitable action was an “attempt to split a cause of action.” The mere fact that the parties in one action are the same as those in another pending case does not, in and of itself, deprive the court in the second ease of its jurisdiction over the matter. See Brochin v. Connecticut Importing Co., 137 Conn. 350, 352-53; Dettenborn v. Hartford-National Bank & Trust Co., 121 Conn. 388, 392; 1 Stephenson, Conn. Civ. Proc. (2d Ed.) § 104. Only by hearing facts outside the record before it can the court in the second action determine if both cases are, in fact, the same cause of action. Accordingly, it has been held consistently that the proper method of raising a claim that there is a prior action pending between the same parties is by a plea in abatement. Tazza v. Planning & Zoning Commission, 164 Conn. 187, 194; Phillips v. Moeller, 147 Conn. 482, 487; Fetzer v. Miscoe Spring Water Co., 141 Conn. 364, 365.

On the face of the record before it the court had jurisdiction over this action. “The motion to erase could not take the place of a timely plea in abatement alleging the facts on which the claim of lack of jurisdiction was predicated.” Karp v. Urban Redevelopment Commission, 162 Conn. 525, 532. Accordingly, the court erred in granting the defendant’s motion to erase.

There is error, the judgment is set aside and the case is remanded with direction to deny the motion to erase the case from the docket.

In this opinion D. Shea and Sponzo, Js., concurred. 
      
       General Statutes § 52-47 provides, in relevant part, as follows: “Any writ returnable to . . . the court of common pleas . . . shall be filed with the clerks, in facilities occupied by the superior court, at the following locations: At Hartford if returnable to Hartford county at Hartford or New Britain . . . except that small claims, support and summary process actions . . . shall be filed in the clerk’s office for the geographical area . . . and not in the clerk’s office located in facilities occupied by the superior court.”
     
      
       Since summary process is a limited form of action, the issues before the court are restricted and must be within the express scope of the summary process statute. Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600-601. The purpose of summary process is to provide “an expeditious remedy to the landlord seeking possession.” Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292-93. Although the Court of Common Pleas may grant legal and equitable relief; General Statutes § 52-6; it is clear that it may not entertain an equitable counterclaim in a summary process action. General Statutes §52-122; Atlantic Refining Co. v. O’Keefe, 131 Conn. 528, 530-31; Webb v. Ambler, 125 Conn. 543, 551. Whether the court could entertain an equitable defense in a summary process action is not so clear, but that question is not before us. See Dreifuss v. World Art Group, Inc., 6 Conn. Cir. Ct. 309, 312.
     
      
       In the present ease the trial court apparently took judicial notice of the file in the pending summary process action. That file was not, however, part of the existing record when the motion to erase was filed and it could not be made part of the record by the court's action in taking judicial notice of it. See Karp v. Urban Redevelopment Commission, 162 Conn. 525, 528.
     