Appeal of Norton

• Decision Date: 06 January 1911
• Citation: 78 A. 587,84 Conn. 24
• Court: Connecticut Supreme Court
• Parties: Appeal of NORTON et al.

78 A. 587

84 Conn. 24

Appeal of NORTON et al.

Supreme Court of Errors of Connecticut.

Jan. 6, 1911.

Appeal from Superior Court, New Haven County; William H. Williams, Judge.

Application by the Shore Line Electric Railway Company for the acceptance and adoption by the warden and burgesses of Guilford of its plan of location. The plan having been approved as modified, the railroad company appealed to the Railroad Commissioners and from their order approving the plan with modifications, Lottie I. Norton and another appealed to the superior court. From an order erasing the appeal, they again appeal; such case being known as No. 6,922. They also appeal from an order of the Railroad Commissioners approving, with modifications, the acceptance and adoption of the plan; such case being known as No. 6,924 in which similar orders were entered. Reversed.

The following facts appear of record in case known as 6,922: The appellants are residents of the town and borough of Guilford and owners of property fronting on York street in said borough. In September, 1909, the appellee, the Shore Line Electric Railway Co., made application to the warden and burgesses of the borough of Guilford for the acceptance and adoption of a plan showing the highways in said borough through which it proposed to lay its tracks, the location of the same as to grade and the center line of said highways, and such changes as it proposed to make in such highway, and requested the acceptance and approval of said plan with such modifications therein as to them shall seem proper, including the direction as to the placing or locating of its tracks, wires, conductors, fixtures, and other permanent structures of such railway in said highways, in accordance with section 3824, Gen. St. 1902. On November 9, 1909, the warden and burgesses accepted and adopted said plan subject to certain modifications. On November 29, 1909, said railway duly appealed from said decision and order of said warden and burgesses to the railroad commissioners from certain portions of such decision. The railroad commissioners duly issued an order of notice to said railway and to said warden and burgesses. On December 9, 1909, the appellants duly appealed from said decision and order of said warden and burgesses to the railroad commissioners from that portion thereof "which approves the proposed location of said tracks of said company as to grade and center line of the highway in front of your petitioners' premises on York street in said Guilford, and for reasons of appeal your petitioners allege that such location is unnecessary and will seriously damage them." The railroad commissioners duly issued an order of notice for a hearing on said appeals December 15, 1909, to said railway, said warden and burgesses, and said Nortons. On December 15, 1909, hearing was had by said commissioners on each said appeal, and said Nortons appeared and were parties to each appeal and heard thereon. On April 20, 1910, said commissioners issued their finding and order on the appeal of said railway, granting the petition of said railway to construct its railway in accordance with the plans submitted to and approved by said warden and burgesses, except as modified by them. On said December 15th said commissioners met. found that notice on appellants' appeals had been duly given and then the finding recites, "and on said 15th day of December, said Lottie I. Norton and Cynthia C. Norton through their attorney filed the following." Then follows a protest of appellants against the petition and appeal of said railway dated December 4, 1909 (this was the petition in case 6,923); and the finding continues, "And said matter was continued from time to time until April 20, 1910, when the petition of the Shore Line Electric Railway Company, dated December 4, 1909 (this was the petition in case 6,923), asking for the approval of its proposed method of construction through the town and borough of Guilford was disposed of by approving the petition of said company as to its method of construction, and a finding issued to that effect April 30, 1910. The petitions of Lottie I. Norton and Cynthia C. Norton, dated December 9, 1909, are therefore dismissed."

The appellants appealed to the superior court from said finding and order of said commissioners. The said railway, on June 14, 1910, moved to erase the appeal, because said orders of the commissioners involved legislative and administrative powers, and not the exercise of judicial power. The court, Williams, J., granted this motion on July 25, 1910.

The appellants duly appeal therefrom because: (1) It is not certain that said order of the commissioners was not defective by reason of failure to give notice or to consider the claims of the appellants, or to give them a proper hearing, or for mistake of law, or otherwise. (2) The appellants have the right to appeal and to have their appeal considered by the superior court, so as to ascertain whether the commissioners acted legally, and whether their action is injurious to the legal rights of the appellants. (3) It does not appear that the location of the tracks of said railway in front of appellants' premises may not be injurious to appellants arid an invasion of their legal rights. (4) It is only upon a hearing that the superior court can determine whether the questions which appellants wish to raise are questions for judicial determination. That the proper procedure for appellee was to secure the filing of reasons of appeal, and then by demurrer test whether they are matters for judicial determination.

The following facts appear in case 6,924: The facts set forth in case 6,922 are the same as in this case and the procedure is the same, except that the petition of the railway is to the selectmen of Guilford, instead of the warden and burgesses of the borough, and their approval of the plan is with modifications different from those imposed in case 6,922; and the appeals of said railway and said Nortons to the railroad commissioners are from the order of the selectmen approving and adopting said plan with certain modifications differing from those imposed in case 6,922, and the approval and adoption of the plan is with modifications differing from those imposed in case 6,922.

The commissioners dismissed the appeal of said appellants and made said protest and their decision in 6,923 the basis for such dismissal in all respects as in case 6,922.

The appellants took their appeal to the superior court upon the same ground and said railway moved to erase said appeal on the same ground as in case 6,922, which motion the court, 'Williams, J., granted and the appellants took their appeals to this court, assigning the same errors as in case 6,922.

Henry G. Newton and Livingston W. Cleaveland, for appellants.

Charles Welles Gross and Arthur L. Shipman, for appellee.

WHEELER, J. (after stating the facts as above). The superior court granted the motion to erase the appeal in each case and the appeals are taken directly from their decision; no judgment file having been entered of record.

Until there is a final judgment, there can be no valid appeal. Gen. St. § 788, as amended by chapter 112, Pub. Acts 1905; State v. Vaughan, 71 Conn. 460, 42 Atl. 640; White v. Howd, 66 Conn. 266, 33 Atl. 915; Cothren v. Atwood, 63 Conn. 576, 29 Atl. 13; Martin v. Sherwood, Rec, 74 Conn. 202, 50 Atl. 526.

If the granting of the motion to erase is not a final judgment, it must follow that the appeal is void, and, if so, the court is without jurisdiction and must erase these appeals whenever it ascertains its own want of jurisdiction, quite irrespective of how it obtained this knowledge. Wildman et al. v. Rider, 23 Conn. 176; Banks v. Porter, 39 Conn. 308.

A final judgment is a determination of the rights of a litigant with respect to his suit. It is any adjudication which finally disposes of a case before a court. A decision on a demurrer that a pleading is sufficient or insufficient is not necessarily a final judgment; by amendment the cause may continue to trial. The decision of a motion to dismiss or erase an appeal for want of jurisdiction is a final adjudication; it throws the case out of court. Black on Judgments (Ed. 1891) vol. 1, § 21; Freeman on Judgments (4th Ed.) § 12; Ency. of Pl. & Pr. p. 72. "Any order or proceeding which disposes of the cause and places the parties out of court is final." Hovey v. Crane, 10 Pick. (Mass.) 440. We have so held on several occasions. O'Brien's Petition, 79 Conn. 57, 63 Atl. 777; Woodruff v. Bacon, 34 Conn. 184. In Beard's Appeal from County Commissioners, 64 Conn. 535, 30 Atl. 776, we said: "The appeal was well taken from the original order erasing the cause from the docket, and it is not invalidated by the nugatory attempt to review the action subsequently had."

Appeals lay directly upon the granting of the motions to erase, for these were the judgments of the court. In practice, the appeal has sometimes been taken directly upon the granting of the motion of erasure or dismissal and no formal judgment file has been placed on record. Wheeler v. N. Y., N. H. and H. R. Co., 70 Conn. 328, 39 Atl. 443, and O'Brien's Petition, supra. And sometimes the formal judgment has been entered of record. Williams Co. v. Maris. 72 Conn. 430. 44 Atl. 729; Bethel & Redding Lime Co. v. N. Y., N. H. & H. R. Co., 82 Conn. 135, 72 Atl. 728. The better practice is to enter of record all judgments or orders of dismissal or erasure. Such a record will be of assistance when the disposition of the case shall become a subsequent matter of judicial investigation. In addition, it will preserve among the records of the judgments of the court, where it belongs, this judgment of the court, equal in its conclusiveness to any.

In their appeals, the appellants state they are aggrieved by the orders of the commissioners, "in so far as the same concern the lay-out and construction of the railway and tracks of said the Shore...