Hartford-Connecticut Trust Co. v. Cambell

Decision Date21 February 1922
Citation97 Conn. 251,116 A. 186
CourtConnecticut Supreme Court
PartiesHARTFORD-CONNECTICUT TRUST CO. v. CAMBELL et al.

Appeal from Superior Court, Hartford County; Frank D. Haines, Judge.

Suit by the Hartford-Connecticut Trust Company, administrator against Lindsay B. Cambell and another. Judgment that plaintiff and defendant Cope, as tenants in common, had an absolute title in fee simple to the land, and plaintiff and defendant Cope appeal. No error.

See also, 95 Conn. 399, 111 A. 864.

Arthur Perkins, of Hartford, for appellants.

Josiah H. Peck and Thomas J. Conroy, both of Hartford, for appellee Cambell.

WHEELER, C.J.

One of the assignment of errors is the refusal of the court to correct the finding as requested as to paragraph 12. The request was properly denied. In effect the amendment requested appears in paragraph 13 of the finding. If it had not so appeared we should have regarded it as too insignificant to furnish a basis for an assignment of error. The printing of the evidence for such a purpose was wholly indefensible, and the trial court should have refused to certify the evidence. If the appellant desires to correct a finding in a limited degree, the better practice requires that he pursue the method of Gen. St. 1918, § § 5829, 5830, and 5831. If he desires to correct a finding in such way that it will be desirable to have before the court a large part of the evidence, he may pursue this method or that under section 5832. The profession should recognize that the method provided by section 5832 is extremely expensive for both the state and the client, and should not use it except in those cases where the whole or a substantial part of the evidence must be considered on the appeal.

A lack of uniformity in pursuing the statutory remedies for the correction of a finding leads us to restate these remedies as interpreted by this court. The statutes provide two remedies for the correction of a finding: (a) That of sections 5829, 5830, and 5831; and (b) that of section 5832. An appellant desiring to pursue method (a) must file within the time fixed by statute his motion to correct, and accompany it by his exceptions, with the evidence thereunder, to the finding or to refusal of the court to correct. Walsh v. Hayes, 72 Conn. 403, 44 A. 725; Wales et al. v. Graves, 72 Conn. 360, 44 A. 480; Twining v. Goodwin, 83 Conn 501, 77 A. 953, Ann.Cas. 1912A, 845. In his assignment of errors he must assign as error the failure of the court to correct the finding in accordance with exceptions as named. Compliance with the form prescribed in the Practice Book, p. 273, will satisfy our requirements.

An appellant desiring to pursue method (b) is not required by the statute to file a motion to correct, but the most approved practice is to file such motion in order to apprise the trial court of the corrections desired; he is, however required to file a transcript of the entire evidence, and thereafter in his assignment of errors he must assign as errors such corrections as he desires to pursue in substantially the following form:

" The appellant further claims that the finding should be corrected: (a) By striking out paragraphs 9, 12 and 13 of the finding; (b) by substituting in place of paragraph 5 of the finding paragraph 4 of the draft finding; (c) by adding to the finding the following numbered paragraphs of the draft finding."

In the absence of an assignment of error presenting the claim for a correction of the finding, the court will not consider the correction of the finding even though the evidence be filed under section 5832. Dennison v. Waterville Cutlery Co., 80 Conn. 597, 69 A. 1022; Churchill Grain & Seed Co. v. Newton, 88 Conn. 132, 89 A. 1121; Eva v. Gough, 93 Conn. 42, 104 A. 238; Boughton v. Boughton, 77 Conn. 9, 55 A. 226; Durham v. Larom, 95 Conn. 477, 111 A. 832; Plum Trees Lime Co. v. Keeler, 92 Conn. 6, 101 A. 509, Ann.Cas. 1918E, 831.

Methods (a) and (b) cannot be pursued at the same time. Davidson v. Ripps Co., 85 Conn. 444, 446, 83 A. 532. If method (a) is begun, and subsequently method (b) is pursued, this will be deemed to be an abandonment of method (a). Unless the corrections claimed are substantial, and intended to be seriously pursued, they should not be pressed where they involve the printing of any substantial amount of evidence.

The agreement under which defendant Cambell claimed the right to purchase the title to the real estate in question was construed in the former appeal (95 Conn. 399, 111 A. 864) to require that the order of the court of probate and the approval of the trustees should be made as conditions precedent to the taking effect of the agreement. As no time was specified for the performance of these conditions, we held that the law would assume that the parties intended performance to be within a reasonable time, and approval need not be by formal vote of the trustees of plaintiff, but might be evidenced by the conduct and acts from which the law would infer an intent to approve.

Upon the facts as alleged in the answer, we held that the approval of the trustees must be inferred from their acts and conduct as therein set forth, and we said that we should be obliged to hold as matter of law that two months was a reasonable time for the trustees to approve or disapprove. One allegation upon which this conclusion was made to largely rest was that-

" On November 1st, two months and more after the execution of the agreement, Cambell proposed to the plaintiff that the agreement be rescinded and the $100, paid on account of the purchase price at the execution of the agreement, be returned, but the plaintiff refused."

Of this allegation we said:

" The retention of this money under these circumstances and the refusal to rescind the agreement would, unless there be other facts surrounding this transaction, which changed its legal significance, constitute in law an approval of the agreement and make it incumbent upon the plaintiff to complete the sale according to the terms of the agreement."

Upon the present trial the court found these...

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31 cases
  • State v. Kelly
    • United States
    • Connecticut Supreme Court
    • March 1, 1924
    ... ... State v. Klein, 97 Conn. 321, 326, 116 A. 596; ... Hartford-Conn. Trust Co. v. Cambell, 97 Conn. 251, ... 253, 116 A. 186; [100 Conn. 507] State v. Gargano, 99 ... Conn ... ...
  • State v. Kelly
    • United States
    • Connecticut Supreme Court
    • March 1, 1924
    ...Statutes, § 5836, and that under section 5829. State v. Klein, 97 Conn. 321, 326, 116 Atl. 596; Hartford-Conn. Trust Co. v. Cambell, 97 Conn. 251, 253, 116 Atl. 186; State v. Gargano, 99 Conn. 103, 106, 121 Atl. 657. The accused obviously has not pursued the remedy by section 5836. That rem......
  • Hine v. McNerney
    • United States
    • Connecticut Supreme Court
    • March 29, 1922
    ... ... filed under section 5832." Hartford-Connecticut ... Trust Co. v. Cambell, 97 Conn. 251, 116 A. 186 (decided ... February 21, 1922) ... ...
  • Woodruff v. Perrotti
    • United States
    • Connecticut Supreme Court
    • October 5, 1923
    ... ... by appeal provided by the statutes. This he could not do ... Hartford-Connecticut Trust Co. v. Cambell, 97 Conn ... 251, 254, 116 A. 186. But the record does not indicate ... ...
  • Request a trial to view additional results

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