The defendant moved to dismiss the application upon the sole ground that it did not present a question for judicial cognizance. The trial court granted the application upon this (1) ground and two other grounds, viz., (2) that § 36 of the Special Laws of 1903, p. 464, had been repealed, (3) that the application did not cover a failure to agree by the selectmen and burgesses, which, under § 36 of the charter, was a jurisdictional fact essential to give the judge jurisdiction of the cause.
This court holds that the trial judge was in error in dismissing the application on the first two grounds stated, but right on the third ground.
Section 36 makes it the duty of the selectmen and an equal number of burgesses annually to determine the proportion of the moneys raised by taxes which Milford shall pay to the Woodmont Association. "And in case the selectmen and the burgesses aforesaid cannot *Page 526 agree upon the amount of money to be paid by said town, then either the said town of Milford or said association may apply to any judge of the Superior Court to have him fix and determine the amount that shall be paid by said town to said association."
Paragraph nine of the application alleges that "said selectmen and the board of finance of said town of Milford and said equal number of burgesses of the Woodmont Association cannot agree upon the amount of money to be paid," etc.
It is said this is not an allegation that the selectmen and an equal number of burgesses cannot agree. If one says A, B and C cannot agree about Blackacre, it is said, this is not an allegation that A and C cannot agree. If we grant that this language, taken apart from its surroundings in this case, is susceptible of such an interpretation, is it true that this is the only interpretation which can reasonably be given it? Or is it fairly open to a construction that neither of the parties can agree with the other?
We think it must be conceded that this language is open to such a construction.
On a motion to dismiss for lack of jurisdiction, that construction should be adopted which will support the action, rather than one which will compel the beginning again the same cause of action; especially, as in this case, one which is manifestly a real one, involving the public welfare, and whose final decision is the desire of two communities.
This application should be accorded such reasonable construction as will give it effect with reference to the general theory upon which it proceeds, and do substantial justice. Price v. Bouteiller, 79 Conn. 255, 257,64 A. 227. The theory of the action is an attempt to take advantage of the appeal provided for by § 36. It is our duty to read the pleadings together as a whole, *Page 527 and to construe the application according to this theory. 31 Cyc. 83. So read, it is clear from the admissions made (paragraphs four and nine of answer, and eight of reply) that the plaintiff relied upon the disagreement provided for in § 36, and believed that its application so alleged.
"The common-law rule as to construing pleadings . . . has been either abrogated or at least much relaxed in the code states by statutes requiring pleadings to be liberally construed." 31 Cyc. 79. We had no occasion for a statute of this character; for our court adopted, as early as 1826, in Case v. Humphrey, 6 Conn. 130,137, a rule of construction of unusual liberality for that day. It exactly covers this allegation of disagreement. "It is a maxim in pleading, if the words are equivocal, that they shall be construed most strongly against the party using them. Co. Litt. 303b; 1 Wms. Saund. 259, n8; Dovaston v. Payne, 2 H. Black. 530. This, however, is not an isolated rule, but must be construed in harmony with other well settled principles. It means no more than this: that when the intendment of words cannot be ascertained, by the admitted rules of construction, and there still remains an ambiguity, that then, against the party pleading, the exposition must be unfavorable. But as the plainest expressions, under the influence of refined and subtle criticisms, may sometimes be the subject of doubt; and as the principle is well established, that the language of the pleader must have a reasonable intendment and construction; to remove ambiguity, an auxiliary rule has been adopted. It is this, that when an expression is capable of different meanings, that shall be taken, which will support the declaration or plea, and not that which would defeat it."
Allegations not in harmony with the theory of the pleading will be considered by a court as surplusage. 31 Cyc. 84; Vedder v. Leamon, 70 N.Y. App. Div. 252, *Page 528 75 N.Y.S. 413; Soper v. Jones, 56 Md. 503; Perry v. Marsh, 25 Ala. 659. Construing paragraph nine of the complaint in the light of this rule, the words "board of finance" would be treated as surplusage.
The issues were closed and closed by attorneys who appeared for the respondents as they state, — the selectmen and board of finance, — to whom notice of the action was given. Thereafter these respondents moved to dismiss on the sole ground that the questions involved were administrative and not judicial. We have held their motion bad. It was indeed the duty of the judge to dismiss the action for lack of jurisdiction, sua sponte. But his action is determined by the judgment, and not by the reasons assigned in his memorandum of decision. The judgment recites: "And having fully heard the parties on said motion to dismiss the application, I find the issues on said motion in favor of the respondent, and that said application ought to be dismissed, because a judge of the Superior Court has no jurisdiction in the premises."
Therefore the judgment is rendered on the issue raised by the motion to dismiss, and that issue we find wrongly determined.
Not alone from the course of the pleading, but in the oral and printed argument, we find these respondents have construed this allegation of disagreement as the plaintiff does. In their brief the respondents do not refer to it.
While the agreement of the parties cannot give jurisdiction, their acquiescence in the construction of the language of a pleading susceptible of two or more interpretations is almost controlling. "Where it is apparent that both parties have placed a certain construction upon a pleading, that construction will usually be adopted by the court if possible." 31 Cyc. 85; Welsh v. Bardshar, 137 Cal. 154, 69 P. 977. *Page 529
If the language of paragraph nine of the application is capable of two or more constructions, the joining of issue was a waiver by the town of its right to thereafter claim a construction which would deny the judge jurisdiction of the cause. After issue joined, the motion to dismiss came too late. Practice Book (1908) p. 247, §§ 155, 155(a); Tracy v. New York, N. H. H.R. Co.,82 Conn. 1, 7, 72 A. 156.
The failure to allege a jurisdictional fact may be waived. Thus it is held that upon a trial of the merits it is too late to raise the jurisdictional question of diverse citizenship. Smith v. Kernochen, 7 How. (U.S.) 198; Estee on Pleading, § 3359. One who has the opportunity to contest a jurisdictional fact, but does not, cannot thereafter make such contest. Cooper v. Sunderland,3 Iowa 114, 128. Under these circumstances the judge could not avoid the effect of the waiver without the request and against the wish and interest too of the respondents.
The Special Act 1911, p. 91, No. 100, creating a board of finance, devolved upon them certain duties which would normally be performed by the selectmen. They make the estimates of the moneys required to be appropriated for the needs of the town and of the rate of taxation, and recommend these to the town. So that, as representatives and officials of the town, they have a common interest. The board of finance is composed of the first selectman and six electors of the town, appointed by the board of selectmen.
The claim of the town was that the problem beforeJudge Burpee was that before the board of finance. At all points in the case the position of the town, and board, and selectmen are the same. The contest is one where all the respondents are on one side and the association on the other.
There is only one disagreement referred to, that *Page 530 between the town and the association. And the town, selectmen, and board have taken one position in the pleadings, in their brief, and their oral argument.
The complaint in terms alleges that the application is made under § 36, and the answer recites the allegation of disagreement between selectmen and burgesses, and this allegation is admitted. So that the parties were in agreement as to this.
There is no foundation in fact in this case for a claim that the disagreement may have been between the board and the burgesses, rather than the selectmen and the burgesses. But if the allegation of disagreement be defective, it was amendable, and the dismissal without according this privilege was improper.
A complaint, defective for lack of a jurisdictional fact, and capable of amendment, should not be dismissed, but the defect left to be met by plea or demurrer which admit of amendment. Our statutes of amendment, as construed by our decisions, invite the amendment of every form of defect which will make a pleading good. We make no exception where the defects are jurisdictional. Indeed, we provide that the plea to the jurisdiction must point out how the defect might have been avoided. General Statutes, § 636. These statutes, together with our practice liberally interpreting them (Sanford v. Bacon, 75 Conn. 541, 543, 54 A. 204), make it plain that every complaint which fails to state a jurisdictional fact, and is capable of amendment, may be amended; as may be any complaint so that it may state a good cause of action. And where the writ was held to abate, we have allowed an amendment.Hilton v. Osgood, 49 Conn. 110, 111.
In the federal court, where diverse citizenship is an allegation essential to give jurisdiction, its failure may be supplied by amendment. Nevada Co. v. Farnsworth, 89 F. 164, 168; Morgan v. Gay, 19 Wall. (U.S.) 81. *Page 531 The court held in a similar case that the right of amendment existed under the United States statute of amendments. "Nevertheless," says the United States Circuit Court, "the plaintiff in error asserts that as the complaint, at the time the attachment was issued, did not contain the necessary jurisdictional averments, every step taken in the cause prior to the amendment was void, and that the amendment of the complaint could not impart vitality or validity to anything done before the amendment was made. This contention is wholly untenable. It is everyday practice to allow amendments of the character of those made in this case, and when they are made they have relation to the date of the filing of the complaint or the issuing of the writ or process amended." Bowden v. Burnham, 59 F. 752, 754. A similar ruling was made inNorman v. Zieber, 3 Or. 197. So in People v. McCaffrey,75 Mich. 115, an amendment was allowed where a jurisdictional averment of residence of a party was omitted. Chafee v. Postal Tel. Co., 35 S.C. 372, 380,14 S.E. 764; 1 Ency. of Pl. Pr. 472; 17 Amer. Eng. Ency. of Law (2d Ed.) 1066. In 1 Ency. of Pl. Pr. 511, we find it stated: "Where the court has jurisdiction of the subject-matter, and the defendant has appeared in court to contest the merits, the declaration or complaint may be amended by inserting averments necessary to perfect the jurisdiction of the court upon the record."
In this case the judge has jurisdiction of the general subject, but it is claimed a jurisdictional fact is wanting. It is the distinctive feature of our practice that we will not permit the ends of justice to be sacrificed by unnecessary adherence to technicalities. This action is a difference between public officials, each of whom, we must presume, is acting in the light of duty. And it may be said, with as much force in this case as in Dunnett *Page 532 v. Thornton, 73 Conn. 1, 14, 46 A. 158: "Every consideration of justice requires that the plaintiff should be enabled to pursue an action honestly brought, and to perfect his statement of facts supporting the cause of action indicated and which he intended to try, even though his statement may be defective in substance and misdescribe the facts."
The judge in this case was constituted a special tribunal, whose authority to hear the particular case depended upon the averment of the jurisdictional fact that the town and association had failed to agree. The cause of action committed to him by the statute was the determination of the amount of money to be paid the association by the town. Before he could act it was necessary that the allegation of failure to agree appear. His power to deal with the general subject involved in the action was his jurisdiction of the subject-matter. 17 Amer. Eng. Ency. of Law (2d Ed.) 1060. Action by him, in the absence of averment of such failure to agree, would be an erroneous exercise of his jurisdiction over a general subject within his jurisdiction. "Jurisdiction of the subject matter is power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, arising, or which is claimed to have arisen, under that general question." Works on Courts and Jurisdiction, 19; 17 Amer. Eng. Ency. of Law (2d Ed.) 1060; Hunt v.Hunt, 72 N.Y. 217, 229; Winningham v. Trueblood,149 Mo. 572, 580, 51 S.W. 399. "It is not confined within the particular facts, which must be shown before a court or judge, to make out a specific and immediate cause of action; it is as extensive as the general or abstract question, which falls within the power of the tribunal or officer to act concerning." Lange v. Benedict, 73 N.Y. 12,27; Jackson v. Smith, 120 Ind. 520, 522, 22 N.E. 431. "Want of jurisdiction is one thing, and an erroneous *Page 533 exercise of an admitted jurisdiction is quite another."Terry's Appeal, 67 Conn. 181, 185, 34 A. 1032.
When the tribunal can have no jurisdiction over the subject-matter of the litigation, it is clear that there is and can be no power to amend. When, on the other hand, the judge is authorized to act in a certain class of litigation, upon the presentation of a set of facts bringing the cause before him within this class, he clearly has the power to permit amendments to cure the cause of action stated of its defect, even though that be the omission of a jurisdictional fact.
The judge had jurisdiction over this class of actions, but the complaint did not contain the essential averment to show it. "In other words, the amendment did not create or confer the jurisdiction; it only brought on the record a proper averment of a fact showing its existence from the commencement of the suit." Bowden v. Burnham, 59 F. 752, 754.
The judgment upon the motion to dismiss is final. The motion ought never to be entertained in a case where the jurisdictional defect can be cured by amendment. "If a case shows a bona fide claim within the jurisdiction of the court, with a reasonable plausibility in support thereof, it behooves the court to pass on the merits on a formal plea, demurrer, or answer, rather than summarily on a motion to dismiss." York CountySav. Bank v. Abbot, 131 F. 980, 982; Norton v.Shore Line Electric Ry. Co., 84 Conn. 24, 32, 78 A. 587.
The undoubted facts show a bona fide cause of action. It seriously affects public interests. The respondent desires it to be disposed of on its merits, in case the ground of its motion to dismiss be held untenable. It joined issue and overlooked this jurisdictional defect. It refuses now to urge its consideration on this appeal. What valid reason can be suggested for turning the parties out of court to bring the same application anew *Page 534 with a single change, the omission of the words "board of finance"?
I think there is error, and that the judgment of dismissal should be set aside, and the cause remanded to be proceeded with according to law.