Appeal of Campbell

• Decision Date: 18 December 1903
• Citation: Appeal of Campbell, 56 A. 554, 76 Conn. 284 (Conn. 1903)
• Parties: Appeal of CAMPBELL.
• Court: Connecticut Supreme Court

56 A. 554

76 Conn. 284

Appeal of CAMPBELL.

Supreme Court of Errors of Connecticut.

Dec. 18, 1903.

Appeal from Superior Court, New Haven County; William T. Elmer, Judge.

Appeal by James H. Campbell from a judgment of the superior court erasing from the docket an appeal from the probate court.Judgment set aside.

Jacob B. Ullman and Edward H. Rogers, for appellant.

George E. Beers, Carl A. Mears, and Charles A. Pelton, for appellees.

TORRANCE, C. J., On the 27th of April, 1903, Campbell took the probate appeal here in question to the superior court to be holden on the first Tuesday of June, 1903.On the return day the appellees, by their counsel, filed a plea in abatement for want of jurisdiction, on the sole ground that the appeal from probate had been taken to the first Tuesday of June, instead of to the first Tuesday of May.A few days later the appellees filed a motion to strikethe case from the docket for want of jurisdiction, because the appeal had been taken to the first Tuesday of June.Subsequently the court granted the motion and struck the cause from the docket.The errors assigned relate solely to the action of the court in so doing.

Whether or not the probate appeal was properly made returnable on the first Tuesday of June depends upon the construction of sections 566and567 of the General Statutes of 1902.By section 566, "process in civil actions" brought to the superior court must be made returnable "to the next return day, or to the next but one, to which it can be made returnable," while by section 507 appeals from "inferior tribunals shall be taken to the return day of the appellate court next after their allowance."If the probate appeal in this case was a "process" in a civil action, under section 566, it was properly taken, while, if it was an appeal from an inferior tribunal, under section 567, it was improperly taken.Beading these two sections in the light of the prior legislation embodied in them, we are of opinion that the probate appeal here in question was "process" in a civil action, under section 566, and therefore properly taken.

In 1876the Legislature provided that "all process in civil actions brought before the superior court in either of the counties of Hartford, New Haven, or Fairfield, may be made returnable, in addition to the first days of the respective terms in said counties, on the first Tuesday of any month except July and August: provided that the return day be not more than eleven weeks from the date of the process."Pub. Acts 1876, p. 100, c. 31, § 3.Subsequently, in 1877, it was enacted "that the words 'all process in civil actions,'" in the above act of 1876, "shall be held to include all appeals from courts of probate, where by law appeals are allowed."Pub. Acts 1877, p. 182, c. 66.In 1886 it was enacted that "process in civil actions brought to the superior court shall not be made returnable to any term or session thereof, but shall be made returnable upon the first Tuesday of any month except July and August: provided that * * * all process shall be 'made returnable to the next return day, or the next but one, to which it can be so made returnable, except as hereinafter provided.'"Pub. Acts 1886, p. 630, c. 133, § 2.By section 3(page 631) of the same act it was provided that "process in civil actions shall include all appeals, transfers, applications for relief and removals, but this act shall not be so construed as to change the time now required by law, within which probate appeals are to be taken."This legislation, so far as it affects the question here considered, was embodied in section 794 of the Revision of 1888, in these words: "Process in civil actions brought to the superior court, which shall include all appeals, transfers, applications for relief and removals, shall not be made returnable to any term or session of said court, but shall be made returnable upon the first Tuesday of any month, except July and August: provided that * * * all process shall be made returnable to the next return day, or the next but one, to which it can be made so returnable.But this section shall not be so construed as to change the time provided and allowed by sections 640,641,642,644and645, for taking probate appeals or appeals from the doings of commissioners on the estates of deceased or insolvent persons."The Revision of 1888 also contained, in other parts of it, the law as it then was concerning appeals from justices of the peace and from other inferior courts, and concerning return days in the district court of Waterbury and in the courts of common pleas.During the interval between the Revision of 1888 and that of 1902, the law as to some of these matters underwent some slight changes from time to time; but the law relating to the return day of process brought to the superior court, as embodied in section 794supra, remained unchanged, even in form.In the Revision of 1902 the law relating to the return day of appeals from justices of the peace and other inferior tribunals is embodied in section 567, while that relating to the return day of "process in civil actions" brought to the superior court or courts of common pleas is embodied in section 566.This last-named section reads as follows: "Process in civil actions including transfers, applications for relief and removals, if brought to the court of common pleas in New Haven county, or to the district court of Waterbury, shall be made returnable on the first Tuesday of any month; if brought to the superior court, or to the court of common pleas in any other county than New Haven, on the first Tuesday of any month except July and August; and all process shall be made returnable to the next return day, or to the next but one, to which it can be made returnable."The companion section (567) reads as follows: "All appeals from...