Crighton v. Jacobs
| Decision Date | 29 January 1924 |
| Citation | 123 A. 437,100 Conn. 281 |
| Court | Connecticut Supreme Court |
| Parties | CRIGHTON v. JACOBS. |
Appeal from Superior Court, Hartford County; L. P. Waldo Marvin Judge.
Action on a note by Andrew J. Crighton against Mary M. Jacobs administrator of the estate of Milan E. Jacobs, deceased. Judgment for defendant, and plaintiff appeals. No error.
Edward J. Daly and James J. O'Connor, both of Hartford, for appellant.
Francis W. Cole and William H. Leete, both of Hartford, for appellee.
The note sued upon is in form a negotiable promissory note purporting to be signed by the maker, Milan E. Jacobs, the defendant's decedent. The signature appears upon the extreme left-hand half of the instrument and beneath its terms; in other respects the note is in due form. The assignment of errors relates to corrections of the finding and to rulings upon evidence. The defendant denied that her decedent promised to pay the plaintiff the $2,500 as set forth in the copy of the instrument made a part of paragraph 1 of the complaint, and she specially denied that her decedent, Jacobs, the alleged maker of the instrument, ever signed, executed, or delivered it. The trial court found in paragraph 26 of the finding that " Milan E. Jacobs did not borrow said sum of $2,500 from the plaintiff, and did not sign said alleged promissory note," and the plaintiff asks to have this finding stricken out and a substitute finding made stating the exact reverse of the facts therein found.
The allegations of paragraphs 19 to 23 are recitals of what a witness testified to and have no proper place in a finding, which is a recital of the facts as found and not of the evidence, or mere evidential facts. In support of his claim for a correction of paragraph 26, the plaintiff calls our attention to the memorandum of decision in which the trial court says, " The note sued upon seems to the court to bear the genuine signature of the decedent," as showing the earlier conclusion of the court from conflicting evidence offered by the parties. This claim involves the holding that this finding in the memorandum of decision should be taken as the fact in preference to the finding made for the purposes of the appeal. The memorandum of decision is made a part of the appeal, so that we have in the finding a statement in the memorandum of decision in conflict with paragraph 26 of the finding. Where the memorandum of decision is not made a part of the finding, the facts it states cannot be regarded in connection with the finding made for the purposes of appeal. " But while a mere memorandum of decision may, under certain limitations and to aid an appeal, be resorted to as indicating a conclusion of law controlling the decision, * * * it cannot, unless made a part of the record, be treated, as a finding of facts." Rogers v. Hendrick, 85 Conn. 260, 267, 82 A. 586, 589; Cummings v. Hartford, 70 Conn. 115, 123, 38 A. 916; Styles v. Tyler, 64 Conn. 432, 439, 30 A. 165. Neither can it be used as supplementing the finding. Brown v. Cray, 88 Conn. 141, 144, 89 A. 1123; Shannon v. Mereness, 89 Conn. 284, 285, 93 A. 529; Gaucso v. Levy, 89 Conn. 169, 171, 93 A. 136; Cary v. Phoenix Ins. Co., 83 Conn. 690, 697, 78 A. 426. Nor on motion to correct a finding can the facts stated in a memorandum of decision be used unless it be made a part of the finding. Turner et al. v. Conn. Co., 91 Conn. 692, 696, 101 A. 88.
Where the memorandum of decision is made a part of the finding, the facts stated therein are to be regarded in connection with those of the finding. Perrotti v. Bennett, 94 Conn. 533, 537, 109 A. 890. If any of the facts stated in the memorandum of decision be in conflict with the facts stated in the finding on appeal, we shall consider the facts as stated in the finding as the finding of the trial court without reference to the facts as stated in the memorandum of decision, which are in conflict with these facts. To hold otherwise would raise unnecessary and unseemly questions upon the appeal. The remedy provided through a correction of the finding will furnish an adequate remedy for the exclusion from the finding of improperly found facts or for the addition to it of facts which ought to have been found. The practice of making a memorandum of decision a part of the finding when it discusses or finds facts is not one to be commended. It is liable to lead to conflicts as to findings of fact in the memorandum and in the finding. Such conflicts add unnecessarily to the questions on appeal and serve no useful purpose. Whether or not paragraph 26 of the finding should be stricken out and a substitute filed therefor is to be determined by a consideration of the evidence in the case, and nothing else.
The plaintiff's case upon this point rested upon his own...
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...a memorandum of decisions should not be made a part of the finding. Munson v. Atwood, 108 Conn. 285, 290, 142 A. 737; Crighton v. Jacobs, 100 Conn. 281, 283, 123 A. 437. record discloses no claim of damages by the plaintiff other than the amount paid by it to purchase the judgment lien, whi......
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Barlow Bros. v. Lunny
...that the practice of making it a part of the finding, when it discusses or finds facts, is not one to be commended. Crighton v. Jacobs, 100 Conn. 281, 283, 123 A. 437. The difficulties growing out of such a practice suggested would be illustrated here if the appellant's motion were granted.......
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Augur v. Augur.
...Brown v. Canty, 115 Conn. 226, 229, 161 A. 91, 83 A.L.R. 801; State v. Isaacson, 114 Conn. 567, 571, 159 A. 483; Crighton v. Jacobs, 100 Conn. 281, 286, 123 A. 437. We note in passing that in the case of two of the rulings assigned as error the trial court states that the question was answe......