The motion to dismiss or to erase will lie for want of jurisdiction which appears plainly on the face of the record, or where it appears upon its face that the appellant has not prosecuted his appeal with due diligence. Like a demurrer it admits all well pleaded facts and must be decided upon the existing record alone, without further procedure or pleading than a hearing on the motion. In the present case the motion to dismiss alleged that the cause of action is the same as that contained in another action brought by the same parties in which judgment was rendered, and the plaintiff demurred to the motion. Held that the demurrer should have been stricken from the record and the motion to dismiss denied.
Argued June 4th, 1930
Decided July 9th, 1930.
APPEAL from the action of the board of hairdressers and cosmeticians in refusing to grant the plaintiff a license, taken to the Superior Court in Fairfield County, where the plaintiff's demurrer to the defendants' motion to dismiss was overruled and the motion granted, Yeomans, J., from which action the plaintiff appealed. Error and cause remanded.
Joseph G. Shapiro, with whom, on the brief, were Harry Allison Goldstein and Charles S. Brody, for the appellant (plaintiff).
Bernard A. Kosicki, with whom, on the brief, was Benjamin W. Alling, Attorney General, for the appellee (defendant).
The motion to erase and that to dismiss are used in our practice somewhat interchangeably although the better practice is the use of the motion to erase. Galvin v. Burch, 98 Conn. 228, 232, 118 A. 826; Pettee v. Hartford-Connecticut Trust Co., 105 Conn. 595, 610, 136 A. 111. Such a motion if sustained, unlike the demurrer to a pleading is a final judgment. It will lie for want of jurisdiction which "appears plainly on the face of the record"; Norton v. Shore Line Electric Ry. Co., 84 Conn. 24, 31, 33, 78 A. 587; Reilly v. Pepe Co., 108 Conn. 436, 443, 143 A. 568, and cases cited; or where it appears upon its face the appellant has not prosecuted his appeal with due diligence. Murphy v. Elms Hotel, 104 Conn. 351, 354, 133 A. 106; Bronson v. Mechanics Bank, 83 Conn. 128, 75 A. 79. "The motion to erase under our practice serves the same purpose as a demurrer. It admits all well pleaded facts and invokes the existing record and must be decided upon that alone." Reilly v. Pepe Co., supra. The same rule governs the motion to dismiss.
In disregard of this established rule the motion to dismiss in this case alleges that this cause of action is the same as that contained in another action brought on a previous date and is between the same parties, and that judgment was therein rendered after full hearing upon the issues which were the same as those in this action. None of these facts appear on the face of the record. The motion to dismiss was not the proper pleading. To this motion the plaintiff demurred. No such procedure is known to our practice. The motion to dismiss must be decided upon the question or questions of law arising on the facts upon the record and hence there is no occasion for any procedure following it save a hearing thereon. The court overruled the demurrer and granted the motion to dismiss. It should have ordered the demurrer stricken from the record and denied the motion to dismiss.