Appeal of White

• Decision Date: 05 December 1902
• Citation: 53 A. 582,75 Conn. 314
• Court: Connecticut Supreme Court
• Parties: Appeal of WHITE.

53 A. 582

75 Conn. 314

Appeal of WHITE.

Supreme Court of Errors of Connecticut.

Dec. 5, 1902.

Appeal from superior court, Middlesex county; Ralph Wheeler, Judge.

Application for the appointment of a guardian for Frederick Hall White, a nonresident minor. From a decree of the probate court approving the appointment of Ellsworth B. Strong, Josiah J. White appealed to the superior court, where a judgment of nonsuit was rendered for failure to prosecute the appeal, and from an order denying a motion to open the nonsuit Josiah J. White prosecutes a further appeal. Affirmed.

Theodore M. Malthie, for appellant.

Charles E. Gross, for appellee.

HALL, J. In July, 1901, Josiah J. White appealed to the superior court from the decree of the court of probate for the district of Chatham approving as guardian of the property in this state of his son, Frederick Hall White, then between 17 and 18 years of age, and residing In Brooklyn, N. Y., Ellsworth B. Strong, of Portland, in this state, who had been chosen by the appellant's said son to be such guardian, and for the approval of whom as such guardian an application had been duly made by said son to said court of probate. It appears from the record that said appeal came to the superior court on the first Tuesday of September, 1901, and that on the 25th of the following February, upon which day said appeal had been assigned for trial before the court (Case, J.), the appellant filed a written motion for a continuance, accompanied by his affidavit and that of his attorney, Mr. Hamilton, and of a physician, setting forth as the grounds of such motion the illness of the appellant, the engagement of his counsel, Mr. Hamilton, in the trial of a jury case in the superior court In New Haven county, and the inability of the appellant to procure other counsel. This motion is indorsed by Judge Case as denied February 25, 1902. By the judgment file of the same date it appears that the appellee appeared, and the appellant failed to appear to prosecute his appeal, and that thereupon it was adjudged that the decree of the court of probate be confirmed. No appeal appears to have been taken, or attempted to be taken, from said judgment, nor any finding to have been made or requested, nor does the record show any further action to have been taken concerning said cause during the session of the court at which said judgment was rendered. On the 8th of the following April, after the next return day, and at another session of said court, at which another judge presided, the appellant, by his said attorney, Hamilton, filed a written motion, verified by the affidavit of the appellant, alleging that on account of his own illness, and the engagement of his counsel before the jury In New Haven county, and his inability to procure other counsel, he was unable to proceed with the trial on the 25th of February, and was compelled to send other counsel to ask for the postponement of his cause, and that the court, not fully understanding the entire situation of the parties, on account of the absence of the appellant's counsel, and upon the insistence of counsel for the appellee, nonsuited said case; and requesting the court, upon finding said allegations true and proven, to open said nonsuit, and allow the appellant an opportunity to try said cause. From the finding of Judge Ralph Wheeler, who presided at said session, it appears that on the 11th day of April—the day assigned for the hearing of said motion to open the nonsuit—said attorney, Hamilton, did not appear, but sent a representative, who asked for a postponement of the hearing until 2 o'clock in the afternoon, upon the ground that Mr. Hamilton was engaged before the supreme court of errors; and that, after hearing counsel, the court found no reasonable ground for the postponement of the hearing, and no just cause for setting aside the nonsuit, and so denied the motion to open such nonsuit. The following order of court, dated April 11, 1902, also appears in the record before us: "Upon the hearing of the motion to open nonsuit in the above-entitled cause, filed April 8, 1902, it is ordered (Hon. Ralph Wheeler, J.), that said motion be denied." On the 14th of April the appellant filed a notice of appeal, and at his request Judge Ralph Wheeler made a finding of facts refiled July 8, 1902, stating the circumstances concerning the assignment of the case on the 25th of February before Judge Case, the failure of the appellant and his attorney to appear and prosecute the appeal, and the hearing upon the motion for a continuance; and in...