Brown v. Cray
| Decision Date | 19 March 1914 |
| Citation | 89 A. 1123,88 Conn. 141 |
| Court | Connecticut Supreme Court |
| Parties | BROWN v. CRAY, Mayor, et al. |
Petition by Joseph A. Brown against James Cray, Mayor, and others. Judgment of a judge of the superior court dismissing the petition, to review which plaintiff brought error, and defendants moved to erase from the docket the memorandum of decision and transcript. Defendants also moved to correct the record, and filed a plea in abatement, to which plaintiff demurred. Motion to erase granted.
Epaphrodltus Peck and William J. Malone, both of Bristol, for the motion.
Noble E. Pierce, of Hartford, and William L. Canty, of Bristol, opposed.
The defendants in error move to strike from the record the memorandum of decision and the transcript of the evidence.
The writ of error recites that the plaintiff in error brought his petition to Hon. William S. Case, a judge of the superior court praying judgment that the vote on the question of license taken on October 6, 1913, in Bristol be declared void because of the failure to observe certain specified requirements of the statute relating to the taking of the vote, and complaining that the judge, in rendering judgment dismissing the petition, erred in refusing to declare the vote void because of the violations of the statutory requirements, and in a certain rule of law adopted. The writ further recites that the entire record relating to the petition is made a part of it, and all of the papers relating to it, together with the transcript of the evidence taken on the hearing, duly certified by the clerk of the superior court, are printed, and were presumably filed in this court as the entire record of the proceedings on the petition.
The transcript of the evidence under our practice, unless, perhaps, on a bill of exceptions in an action of summary process, can never be incorporated in a writ of error. None of the facts appearing in it can be found by us. If any such are essential to a proper understanding of the issues determined by a court and of the errors of law apparent upon the record of the court and desired to be reviewed on a writ of error, they must appear in the record, either in the judgment tile (General Statutes, § 763), or in the record by motion made pursuant to General Statutes, § 759. Nowsky v. Siedlecki, 83 Conn. 109, 110, 75 Atl. 135, 20 Ann. Cas. 1023; Rruughel v. Southern New England Tel. Co., 72 Conn. 617, 624, 45 Atl. 435, 49 L. R. A. 404.
The memorandum of decision cannot, unless made a part of the record, be treated upon appeal as a finding, nor as supplementing the finding. Rogers v. Hendrick, 85 Conn. 260, 267, 82 Atl. 586; Cary v. Phoenix Ins. Co., 83 Conn. 690, 697, 78 Atl. 426. The rule is equally applicable to an attempt to treat, upon a writ of error, the memorandum of decision as a finding.
We hold upon appeal the memorandum of decision may be resorted to by this court for the purpose of ascertaining the rulings of the trial court upon questions of law, and for interpreting the findings of the judgment file or those made for the purposes of the judgment. Rogers v. Hendrick, supra: Phoenix Ins. Co. v. Cary, 80 Conn. 426, 433, 68 Atl. 993; Cummings v. Hartford, 70 Conn. 115, 124, 38 Atl. 916; Styles v. Tyler, 64 Conn. 439, 30 Atl. 165.
Our. rules require the memorandum of decision to be printed in all cases. Practice Book 1908, p. 275, § 23. This rule applies to appeals only.
Without attempting a complete classification of the errors which may properly be raised on a writ of error (excepting in an action of summary process), we may say that the only errors which now occur to us as proper on such writ are those errors of law which appear upon the face of the record, viz.: Questions arising from interlocutory rulings upon the pleadings, questions relating to the jurisdiction, and questions as to whether the issues determined were within the pleadings, and whether the adjudication had was, in law, within the issues pleaded, and within those determined.
Bet us now take up the motion to erase from the docket. Chapter 152 of the Public Acts of 1909 provides for a review by any elector in the town in which he resides of the vote upon the question of license, where the requirements of the statute have not been complied with, by petition to a judge of the superior court, who "shall hear and determine such petition, and his decision thereon shall be conclusive."
Judge Case heard the petition to declare the vote taken in Bristol on October 6, 1913, on license void, and returned all the papers, including a memorandum of his decision, to the clerk of the superior court for Hartford county, and indorsed upon the petition: The plaintiffs in error bring their writ of error to reverse this decision.
The defendants in error have filed in this court their motion to erase the writ of error from the docket and their plea in abatement to the writ. The questions determinative of the writ are properly raised by the motion, and we shall have no occasion to consider the plea in abatement.
The motion to erase is justified by the defendants in error upon these grounds:
1. That at common law the writ of error only lies to review a judgment of a court of record in a cause proceeding according to the course of the common law, and the decision of Judge Case was not a judgment of a court, and had none of the characteristics of a common-law action, and that this remedy is in our jurisdiction statutory and available in the case of a final judgment by a court. .
Judge Case, in deciding the cause presented to him in this petition, unquestionably exercised judicial power. And every judge to whom is committed the decision of judicial, as distinguished from administrative, matters is in the exercise of a judicial function when he so decides. Cogswell v. Second National Bank, 76 Conn. 252, 56 Atl. 574; New Milford Water Co. v. Watson et al., 75 Conn. 237, 241, 52 Atl. 947, 53 Atl. 57; Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 37 Atl. 1080, 38 Atl. 708, 39 L. R. A. 794.
The decision of the judge upon a petition of this character was a final judgment. Bristol v. Bristol Water Co., 85 Conn. 665, 84 Atl. 314.
Good practice required that the judgment file be drawn up and recorded. Norton v. Shore Line Ry. Co., 84 Conn. 24, 78 Atl 587. The practical advantages of having a recorded judgment are apparent. "The record of the court in which the judgment was rendered is the only proper evidence of...
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