Aubrey v. City of Meriden

• Decision Date: 14 May 1936
• Court: Connecticut Supreme Court
• Parties: AUBREY v. CITY OF MERIDEN et al.

185 A. 87

121 Conn. 361

AUBREY v. CITY OF MERIDEN et al.

Supreme Court of Errors of Connecticut.

May 14, 1936

Appeal from Superior Court, New Haven County; Frederick M. Peasley Judge.

Action by Mary Aubrey, administratrix of the estate of Christian Bishop, against the City of Meriden and others to recover damages for the death of her decedent, alleged to have been caused by negligence of defendants, brought to the superior court and tried to the jury. Verdict and judgment for defendants, and dplaintiff appeals.

No error.

Lewis J. Somers, of Meriden, for appellant.

Denis T. O'Brien, Jr., of Meriden, for appellees Harris et al.

DeLancey S. Pelgrift, of Hartford, for appellee City of Meriden.

Argued before MALTBIE, C.J., and BANKS, HINMAN, AVERY, and BROWN JJ.

BANKS Judge.

Plaintiff's intestate was fatally injured by the fall of a ladder erected by the individual defendants, members of the Meriden fire department, in the performance of their duties in extinguishing a fire in a building at the corner of West Main street and High School avenue. The plaintiff claimed to have proved that the firemen in erecting the ladder placed the bottom too close to the wall of the building, that the top of the ladder was not fastened and was not squarely against the building; that after using the ladder to get some objects out of a window they left it unguarded and unfastened; that there was a heavy wind blowing and some fifteen minutes later the ladder fell, striking plaintiff's intestate, who was janitor of the building and arrived at the building just as the ladder fell. The defendants claimed to have proved that the foot of the ladder was set at a proper distance from the building with the top fairly against the side of the building, that there was a slight wind blowing, and that the ladder fell while the firemen were in the cellar fighting the fire; also that when the ladder was erected fire lines were established and the area in front of the building was within the established fire lines. The action against the city was based upon the claimed creation of a highway, and that against the individual defendants upon the ground of negligence.

The court directed a verdict in favor of the city and the jury brought in a verdict in favor of all the defendants. The plaintiff moved to have the verdict set aside as against the law and the evidence, but the assistant clerk of the court refused to file the written motion on the ground that it was received too late. The plaintiff filed a motion for an order directing the clerk to file the motion to set the verdict aside or in the alternative for an extension of time within which to file such motion. The court denied both motions and this action is assigned as error.

The jury brought in their verdict on Friday, March 22d, at 6 p m., which was accepted by the court. About 10:30 a. m. Saturday, March 23d, counsel for the plaintiff delivered at the Meriden post office a written motion that the verdict be set aside inclosed in an envelope, bearing a special delivery stamp, addressed to the clerk of the superior court at New Haven. It was stamped at the Meriden post office " 11.30 a. m." and at the New Haven post office " 3.30 p. m." It was received by an assistant clerk at New Haven on Monday, March 25th, at 8:20 a. m.

The rules (Practice Book 1934, p. 73, s 229) provide that " motions to set aside a verdict as against the evidence, must be filed with the clerk within twenty-four hours, exclusive of Sunday, after the verdict is accepted; provided that for good cause the court may extend this time." Section 5400 of the General Statutes provides that, except during July and August, the superior court in each county shall be deemed to be open on each day, except on legal holidays and on Saturday afternoons after 12 o'clock, for the purpose of entering appearances, judgments of nonsuit or default for want of appearance and filing pleadings, amendments to pleadings, and written motions, and that on Saturdays all such proceedings shall be had between 10 o'clock in the forenoon and 12 o'clock noon, at the clerk's office. Presumably the clerk's office was not open, for the purpose of filing this motion, after 12 o'clock on Saturday afternoon. The rule requiring that such motion be filed within twenty-four hours excludes Sundays, but does not exclude Saturday afternoons. It is to be a construed in connection with the statute which requires the clerk's office to be open only until 12 o'clock on Saturdays; and the fact that the motion cannot be filed after that hour on Saturday does not extend the time for its filing. No permissible construction of the rule would permit the filing of the motion in this case on the following Monday. As we said in Brown v. Congdon, 50 Conn. 302, 311, with reference to a motion in arrest of judgment, " the limitation, although the time is short, is found by experience to be on the whole for the interest of the public. We no more feel at liberty to disregard it on account of the hardship of a particular case than we do to disregard an ordinary statute of limitations for a similar reason."

The court may for good cause extend the time for filing such a motion. The finding of good cause is largely within the discretion of the trial judge and uncontrolled unless the circumstances show an abuse of discretion. Le Croix v Donovan, 97 Conn. 414, 417, 117 A. 1. The usual motion to set a verdict aside is a simple one which may easily be, and not infrequently is, filed immediately upon the conclusion of the case. Counsel for the plaintiff should have realized that in all probability a motion deposited in the Meriden post office at 10:30 Saturday morning would not be delivered at the courthouse in New...