Carbone v. Zoning Bd. of Appeals of City of Hartford

• Citation: 13 A.2d 462,126 Conn. 602
• Court: Supreme Court of Connecticut
• Decision Date: 06 May 1940
• Parties: CARBONE v. ZONING BOARD OF APPEALS OF CITY OF HARTFORD et als.

13 A.2d 462

126 Conn. 602

CARBONE v. ZONING BOARD OF APPEALS OF CITY OF HARTFORD et als.

Supreme Court of Errors of Connecticut.

May 6, 1940

Appeal from Superior Court, Hartford County; Alfred C. Baldwin and Earnest C. Simpson, Judges.

Francis P. Pallotti and Joseph J. Fauliso, both of Hartford, for appellant-appellee (plaintiff).

A. A Ribicoff, of Hartford (Vincent W. Dennis, Corp. Counsel, and Harold Borden, Asst. Corp. Counsel, both of Hartford, on the brief), for appellant-appellee (named defendant).

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

MALTBIE, Chief Justice.

The plaintiff took an appeal from the defendant board to the Superior Court. Under the provisions of the General Statutes and of the charter of the city, such appeals are required to be taken within fifteen days from the date of the decision of the board. General Statutes, § 429; 20 Special Laws, 1929, p 727. The defendants pleaded in abatement that more than the fifteen day period had elapsed before this appeal was taken. The plaintiff admitted in his answer that this was so but as a special defense pleaded that he had taken an appeal within the specified time, that a plea in abatement to it had been sustained and that the present appeal was brought under the provisions of § 6024 of the General Statutes. The defendants demurred to the special defense upon the ground that § 6024 did not apply to such an appeal as the one before us, but the trial court overruled the demurrer. If that ruling was erroneous, the plea in abatement was well taken upon the allegations admitted in the answer. The decisive question is whether § 6024 applies in such a proceeding as an appeal from a zoning board. The pertinent portion of the statute is as follows: ‘ If any action commenced within the time limited by law, shall have failed one or more times to be tried on its merits * * * because the writ was abated * * * the plaintiff * * * may commence a new action for the same cause at any time within one year after the determination of the original action * * *.’ More specifically, the issue is, does the word ‘ action’ in that section include such appeals.

In Waterbury Blank Book Mfg. Co. v. Hurlburt, 73 Conn. 715, 49 A. 198, the question was whether a proceeding in a district court where judgment had been entered upon an award made pursuant to a rule of court was an ‘ action’ within a statute permitting an appeal to the Superior Court from judgments or decrees in ‘ actions' involving more than a certain sum. We held that the proceeding was an ‘ action’ within the meaning of the statute, and said (73 Conn. at page 717, 49 A. at page 199): ‘ In a general sense, the word ‘ action’ means the lawful demand of one's right in a court of justice; and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides.' So we have placed a similarly broad construction upon the words ‘ cause or action’ as used in § 5689 of the General Stat authorizing appeals to this court, including, for example, proceedings for admission to the bar, the disbarment of an attorney, or in naturalization. In re O'Brien's Petition, 79 Conn. 46, 59, 63 A. 777; In re Durant, 80 Conn. 140, 149, 67 A. 497,10 Ann.Cas. 539; In re Naturalization of Fordiani, 98 Conn. 435, 444, 120 A. 338. However, the word ‘ action’ has no precise meaning and the scope of proceedings which will be included within the term as used in the statutes depends upon the nature and purpose of the particular statute in question. Thus in Barber's Appeal, 63 Conn. 393, 413, 27 A. 973,22 L.R.A. 90, we held that an appeal from a decree of a Court of Probate admitting a will to probate was not an ‘ action’ within the meaning of that word as used in § 5608 of the General Statutes making the declarations of deceased persons admissible in ‘ actions' by or against their representatives, although we noted that such a proceeding was within the meaning of the word as used in some statutory proceedings, citing the statute authorizing appeals to this court; while in Mulcahy v. Mulcahy, 84 Conn. 659, 661, 81 A. 242, we held that an appeal from a decree of a Court of Probate denying a petition to compel a correction of the inventory of an estate was an ‘ action’ within the same statute, construing the statute in the light of the subject and purpose of the law and the mischief to be remedied. In Porter v. Ritch, 70 Conn. 235, 259, 39 A. 169, 177,39 L.R.A. 353, we held that an order by a Court of Probate for the temporary detention of an insane person was not an ‘ action’ within the principle that an action was not commenced until service of process had been made on the defendant, and we said, referring to a definition of an action given by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat., U.S., 264, 407, 5 L.Ed. 257, that, within the principle he was stating, it obviously would not include ‘ proceedings or actions in rem, nor proceedings in the nature of an inquest of office, and other like proceedings.’

In Slattery v. Woodin, 90 Conn. 48, 96 A. 178, the claim was made that in an appeal from the decree of a Court of Probate for the distribution of an estate either party was entitled to a trial by jury under the provision in Article First, Section 21, of our Constitution, that ‘ The right of trial by jury shall remain inviolate,’ it appearing that in 1818, when the constitution was adopted there was a statute in effect^[1] which provided that ‘ all actions' tried before the Superior or county courts when issue was joined on any matter of fact should be tried to the jury. We pointed out that an appeal from probate was a special and peculiar proceeding having its source wholely in the statutes, and that it was not an ‘ action’ within the terms of the statute in question. We said (90 Conn. at page 50, 96 A. at page 179): ‘ The...