Bergin v. Bergin
Decision Date | 16 April 1985 |
Docket Number | No. 2222,2222 |
Citation | 490 A.2d 543,3 Conn.App. 566 |
Court | Connecticut Court of Appeals |
Parties | Patrick BERGIN et al. v. Dorothy BERGIN et al., Administratrices (ESTATE OF Elizabeth BERGIN). |
David W. Winters, for appellants (plaintiffs).
William J. St. John, Waterbury, and David W. McGill, for appellees (defendants).
Before DUPONT, C.P.J., and HULL and SPALLONE, JJ.
The plaintiffs have appealed from a judgment of the Superior Court dismissing their appeal from the Cheshire Probate Court.
Elizabeth Bergin died testate. Edward Bergin, her nephew and the father of the plaintiffs, was a beneficiary under her will. He predeceased the testatrix. The Probate Court construed Elizabeth Bergin's will in such a way as to determine that the bequest to Edward Bergin lapsed and passed by intestacy to the heirs of the testatrix, rather than to the plaintiffs.
On December 1, 1982, the Probate Court granted the plaintiffs' motion to appeal to the Superior Court. The appeal was returnable on January 25, 1983, and counsel for the defendants filed an appearance on that date. Process, however, was not returned until February 1, 1983. On February 15, 1983, the defendants filed a motion to dismiss on the grounds that the return was untimely and that the allegations of aggrievement underlying the appeal were insufficient. The parties stipulated that the defendant was not prejudiced by the late return and requested that the motion to dismiss be decided on the papers. The trial court granted the motion without specifying its reasons for so doing.
The focal issue in this case is whether the late return of process is a circumstantial defect, 1 correctable by amendment, or a substantive defect rendering the appeal voidable upon timely motion by the defendant. Since we find that the late return of process is a substantive defect and that the trial court did not err in dismissing the appeal, we need not reach the question of whether the plaintiffs were aggrieved.
The right to appeal from the decision of a Probate Court is purely statutory; General Statutes § 45-288, and the requirements fixed by statute for taking and prosecuting the appeal must be met. The Superior Court is without jurisdiction to entertain an appeal from probate unless the appeal complies with the conditions designated by statute as essential to the exercise of this power. Exchange Buffet Corporation v. Rogers, 139 Conn. 374, 376, 94 A.2d 22 (1952).
For purposes of mesne process, a probate appeal is considered a civil action. Campbell's Appeal, 76 Conn. 284, 56 A. 554 (1903). As such, the requirement of General Statutes § 52-46a, 2 which states that process in civil actions returnable to the Superior Court must be returned at least six days before the return day, must be satisfied.
Statutory limitations upon the time for the taking of an appeal and for the return of process implement the speedy determination of the issues involved. Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 35, 392 A.2d 485 (1978). Such time limitations Wilburn v. Mount Sinai Medical Center, 3 Conn.App. 284, 288, 487 A.2d 568 (1985). ...
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...unless the appeal complies with the conditions designated by statute as essential to the exercise of this power." Bergin v. Bergin , 3 Conn. App. 566, 568, 490 A.2d 543, cert. denied, 196 Conn. 806, 494 A.2d 903 (1985), overruled in part on other grounds, 289 Conn. 795, 961 A.2d 365 (2008).......
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...... and the requirements fixed by statute for taking and prosecuting the appeal must be met." (Citation omitted.) Bergin v. Bergin, 3 Conn.App. 566, 568, 490 A.2d 543, cert. denied, 196 Conn. 806, 494 A.2d 903 see State v. Goggin, 208 Conn. 606, 615, 546 A.2d 250 (1988); Satti v. Rago, 186 ......
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