Burke v. Wright

• Decision Date: 04 June 1903
• Citation: Burke v. Wright, 75 Conn. 641, 55 A. 14 (Conn. 1903)
• Court: Connecticut Supreme Court
• Parties: BURKE v. WRIGHT et al.

55 A. 14

75 Conn. 641

BURKE

v. WRIGHT et al.

Supreme Court of Errors of Connecticut.

June 4, 1903.

Appeal from Court of Common Pleas, New London County; Walter C. Noyes, Judge.

Action by John H. Burke against Alvin H. Wright and others.From a judgment in favor of plaintiff, defendants appeal.Plea to abate appeal sustained.Appeal dismissed.

Seneca S. Thresher, John H. Barnes, and Roderick M. Douglass, for appellants.

Frank T. Brown and Jeremiah J. Desmond, for appellee.

TORRANCE, C. J.The plaintiff in the court below brought an action against the defendants upon a written lease.To the answer filed in that action the plaintiff demurred, and the demurrer was sustained.The defendants then voluntarily filed an amended answer, to which the plaintiff demurred, and that demurrer was also sustained.No further answer was filed, and thereupon the court, on the 17th day of January, 1903, rendered judgment in favor of the plaintiff.On the 24th of January, 1903, the defendants filed a notice of appeal from that judgment to this court.The appeal was filed and allowed on the 26th day of March, 1903, and the plea in abatement is based upon the claim that the appeal was not filed within the time allowed by law.

The statute(section 791, Gen. St. 1902) provides that, "if no finding of facts or further action of the judge be necessary to present properly the questions in the cause, the party appealing shall, within ten days from the rendition of the judgment," file with the clerk an appeal in writing, and give security for prosecution, as required by law.It further provides that the trial judge may, for cause shown, extend the time for filing and perfecting the appeal.The plea in abatement alleges, in substance: (1) That no finding of facts or further action of the trial judge was necessary to present properly the questions in said cause; (2) that no appeal in writing from said judgment to this court was filed within 10 days from the rendition of said judgment, nor was any such appeal filed except the one filed on the 26th day of March, 1903; and (3) that the trial judge did not extend the time for filing such appeal.The answer denied the first and third of the above allegations, and then set up the following facts, in substance: That, after final judgment was rendered, the defendants gave notice of appeal, and, believing that a finding of facts or further action of the judge was necessary to properly present the questions in the cause, they requested the judge in writing for such a finding, and lodged said request with the clerk, with a proposed finding; "that said judge held such request and proposed finding in his possession until March 20, 1903, when he returned the same to the clerk, and said to the defendants' counsel that he did not think any finding necessary, and the defendants then perfected their appeal, to wit, on March 26, 1903."To the facts thus set up in the answer the plaintiff demurred.Before the argument in this court, the parties, through their counsel, agreed in writing that when the proposed finding was returned to the clerk the judge said to counsel for the defendants, "You will now have one week in which to perfect your appeal."This was done to avoid sending the issue of fact raised by the answer to the plea in abatement (as to whether or not the time for filing the appeal had been extended by the judge) to be tried under the rule.By voluntarily filing an amended answer after the demurrer to the first answer was sustained, the defendants waived their...