34 Conn. 49 (Conn. 1867), Curtis v. Gill

Citation34 Conn. 49
Opinion JudgeCarpenter, J.
Party NameLeonard Curtis v. Sarah M. L. Gill and another.
AttorneyBaldwin, in support of the demurrer. Bronson, contra.
Judge PanelIn this opinion the other judges concurred.
CourtSupreme Court of Connecticut

Page 49

34 Conn. 49 (Conn. 1867)

Leonard Curtis


Sarah M. L. Gill and another.

Supreme Court of Errors of Connecticut.

February, 1867

The act of 1866 provides that whenever a judgment rendered by a justice of the peace shall exceed five dollars, an appeal shall be allowed. Held, that the word " judgment" as here used was intended to embrace the damages only, and not the costs.

Therefore where to an appeal a plea in abatement was filed, which alleged that the judgment was for one dollar and costs of suit, it was held that it was not defective in not averring that the judgment did not exceed five dollars.

Whether an oral motion to dismiss the appeal, as all the facts appeared upon the record, would not have been sufficient:- Quœ re .

This statute by implication repeals the pre-existing statute which allowed appeals in all cases.

The act is not unconstitutional as infringing the right of trial by jury.

Such reasonable conditions and regulations as are demanded by the public good and have for their object the promotion of the cause of justice and the general convenience, do not amount to an infringement of the right of trial by jury within the meaning of the constitution.

The provision of the act which requires the plaintiff or his attorney to make oath, on moving for a jury before a justice of the peace, that he verily expects to recover a sum not less than five dollars, is not unreasonable.

Nor the change by which the amount recovered before the justice determines the right of appeal, instead of the amount demanded in the writ, as was the law when the constitution was adopted.

The constitution does not require that the title to land should be tried by a jury.

The history of legislation in this state as to appeals from justices and jury trials reviewed.

A notice under the general issue does not put in issue the matters alleged in it.

Trespass quare clausum fregit, brought before a justice of the peace in New Haven county, the writ demanding fifty dollars damages. The defendants pleaded the general issue, with notice that they should claim and prove a right of way over the land in question, and that the acts claimed to be a trespass were done in the reasonable exercise of the right. The justice rendered judgment for one dollar damages and $13.13 costs, and the defendants appealed to the superior court. In the superior court the appellee filed the following plea in abatement of the appeal.

" And now the appellee comes into court here and says that the court ought not to take further cognizance of or sustain the appeal aforesaid, because he says that the judgment recovered before said justice of the peace, as set forth in said record, was for the sum of one dollar damages and costs of suit, and that said original action was within the final jurisdiction of said justice, and that no appeal could be taken and allowed from said judgment, and that this court has no jurisdiction over said appeal. And all this he is ready to verify. Wherefore he prays judgment that said appeal may abate and be dismissed." [*]

To this plea the appellants demurred, and the questions arising on the pleadings were reserved by the superior court for the advice of this court.

Baldwin, in support of the demurrer.

1. The plea in abatement is formally defective for want of an allegation that the judgment appealed from did not exceed five dollars. And this defect is reached by a general demurrer. Gould Pl., ch. 9, part 1, § 12.

2. But had this averment been made, the record shows that it would not have been true, since the judgment rendered was in fact for $14.13. The costs of the suit are as much a part of the judgment as are the damages. Waterman v. Curtis, 30 Conn. 135, 138. Had the judgment been that the defendants recover their costs, and these had exceeded five dollars, could not the plaintiff have appealed? If the legislalature intended to limit the right of appeal to cases where the damages awarded by the judgment exceeded five dollars, they would have said so. The amount of the judgment, the sum at stake, not its constituent parts, was to be made the measure of the right to litigate it further.

3. But the act of 1866 does not repeal the general law allowing appeals from all judgments rendered by a justice of the peace otherwise than upon the verdict of a jury. Such a repeal can be claimed only by implication, and here the implication is not a necessary one. Implied repeals are not favored in law, and must be made out with the utmost clearness, particularly where they go to take away the jurisdiction of the superior courts. 1 Black. Comm., 90; Bac. Abr. Statute D., 18, 19; Shipman v. Henbest, 4 T. R., 116; Goodman v. Jewett, 24 Conn. 588. But in respect to these appeals the old law and the new stand well together. The repeal can cover only so much as is clearly inconsistent with the new statute; but it is not inconsistent with a law providing that you can appeal from a judgment exceeding five dollars, that you can also appeal from one of less than five dollars. Crittenden v. Wilson, 5 Cow., 165, 168; Jackson v. Bradt, 2 Caines, 169. The construction contended for by the appellee is inadmissible also because it would contravene the uniform policy of our law from its earliest period, in giving the right to bring before a jury of the county all cases in which the title to land is determined. In cases of trespass qu. cl. fr. to which title is pleaded, nominal damages only are commonly awarded if the plaintiff recovers; but the right of appeal from the judgment of a justice upon such a point is one long allowed, often exercised, and not to be taken away by anything less than a conclusive implication. See Statutes, Ed. of 1808, p. 35; Comp. of 1854, p. 74, § 5; Goodman v. Jewett, supra.

4. If however this act rightly construed does assume in this particular to repeal the former law, it is submitted that in so far as this could affect the case at bar at least it is unconstitutional. When the constitution was adopted the law gave an appeal...

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