Appeal of Bulkeley

• Decision Date: 03 March 1904
• Citation: 57 A. 112,76 Conn. 454
• Court: Connecticut Supreme Court
• Parties: Appeal of BULKELEY et al.

57 A. 112

76 Conn. 454

Appeal of BULKELEY et al.

Supreme Court of Errors of Connecticut.

March 3, 1904.

Appeal from Superior Court, Hartford County; Milton A. Shumway, Judge.

Application to the board of relief of the city of Hartford for the reduction of an assessment of the shares of the capital stock of the Ætna Life Insurance Company. From the action of the board in refusing a reduction, Morgan G. Bulkeley and other stockholders made application in the nature of an appeal to the superior court, and from a judgment affirming the action of the board the applicants appealed. The appellee, the city of Hartford, filed a plea in abatement in the Supreme Court, and to the answer thereto demurs. Demurrer overruled.

Lewis Sperry, for appellants. Edward D. Robbins and Joseph P. Turtle, for appellee.

PRENTICE, J. The appellee pleads in abatement for reasons which are, in substance, that the steps prescribed by law to be taken in order to perfect an appeal to this court were not seasonably taken. The allegation of the plea upon which the truth of all the others depends is that final judgment in the trial court was rendered on August 27, 1903. The appellant answers the plea, denying this allegation, and with it all the allegations of unlawful delay which are dependent upon it. The answer, by way of special answer, also sets out in detail the history of the cause subsequent to its submission to the decision of the trial judge. The appellee demurs to this special answer.

The allegation as to the time when final judgment was rendered is, in form, one of fact. It, however, involves a legal conclusion, which is the real point in issue, and the only point in issue between the parties. The question involved is as to the time when, under our statutes and rules, the judgment in the cause is, for the purposes of proceedings in appeal, to be regarded as having been rendered.

The cause is an appeal from the doings of the board of relief of the city of Hartford. The history set out in the answer embodies the following facts: On August 27, 1903, the judge who sat as the court to hear it filed with the clerk his memorandum of decision, the concluding sentence of which was, "The action of the board of relief is affirmed." The clerk on the same day sent written notice to counsel, and on the 29th the appellants filed their notice of appeal. The judgment file was not prepared until September 23d. On September 29th the appellants filed a second notice of appeal, and on October 1st a request for a finding, accompanied by a draft of proposed finding. Then followed draft of counter finding, finding, motion to correct finding, and exceptions thereto, when, finally, on November 27th, the completed and corrected finding was filed. On December 7th the appellants took their appeal. No extensions of time were granted.

The appellee claims that judgment in the cause was rendered on August 27th, and that the appellants' time for filing their request for a finding began to run from that date, or, rather, from September 1st; the days of July and August being excluded from the computation of time. The appellants claim that judgment was not rendered until the judgment file was made out and signed, on September 23d, and that the time for filing their request did not begin to run until that date. Counsel have assumed that a decision of the question as thus stated would be decisive of the merits of the present plea, and have confined their arguments to that question. In this we think that they are in error, for two reasons:

The judgment file which is before us bears date September 23d. It recites that the cause came to that day, and was that day heard and adjudged. This record of the trial court is conclusive in this court of the truth of the facts recited. Corbett v. Matz, 72 Conn. 610, 45 Atl. 494, 48 L. R. A. 217; Cox v. MeClure, 73 Conn. 486, 47 Atl. 757. If the facts are therein misstated, the remedy is elsewhere. Verzier v. Convard, 75 Conn. 1, 52 Atl. 255.

The only failure which is charged to the appellants, as depriving them of their right to appeal, consists in not filing a request for a finding, and a draft of proposed finding, within two weeks after September 1st. One desiring to appeal, who, in a case where a finding is necessary, fails to file his request and draft as and within the time prescribed by statute, loses his right to have a finding. State v. Duffy, 66 Conn. 551, 34 Atl. 497; Scholfield G. & P. Co. v. Scholfield, 70 Conn. 500, 40 Atl. 182. If, however, the judge waives the protection to himself contained in the statutory provisions, and makes and files a finding, either without request and drafts of proposed finding, or upon...