La Croix v. Donovan

• Decision Date: 05 May 1922
• Court: Connecticut Supreme Court
• Parties: LA CROIX et al. v. DONOVAN.

117 A. 1

97 Conn. 414

LA CROIX et al. v. DONOVAN.

Supreme Court of Errors of Connecticut.

May 5, 1922

Appeal from Superior Court, Fairfield County; Frank D. Haines Judge.

Action by Christopher A. La Croix and others against John T Donovan. On plaintiffs' plea in abatement to defendant's appeal. Plea sustained, and judgment rendered for plaintiffs.

Gager J., dissenting.

Thomas M. Cullinan, John J. Cullinan, and Vincent L. Keating, all of Bridgeport, in support of plea in abatement.

Spotswood D. Bowers, of New York City, and Charles E. Williamson, of Bridgeport, opposed.

PER CURIAM.

The facts admitted or stipulated are as follows: No appeal in writing was filed in this court within 10 days from the filing of the finding, which was on March 9th. Thereafter, on March 27th, counsel for defendant by telephone secured permission from Judge Haines, the trial judge, to extend the time for filing the appeal to 5 p. m. March 28th, and counsel on said day notified the clerk of the permission so granted. Judge Haines did not notify the clerk of the granting of this extension. Nor did counsel for defendant notify the plaintiffs or their counsel of his own intention to seek an extension of time for filing the appeal. No hearing was had to determine whether or not due cause existed for making such extension. So far as appears of record, no reason for asking such extension was presented to Judge Haines, other than that counsel had inadvertently permitted the time limited by statute for filing an appeal to pass, and so far as appears of record this was the basis of the order of Judge Haines granting such extension of time. The appeal was taken to the first Tuesday of June, 1922. The term of court next after the filing of the appeal was the second Tuesday of April, 1922.

The two questions which the plea raises, and which we purpose discussing, are: (1) Whether the application for an extension of time for filing an appeal was properly granted; (2) whether the taking of the appeal to the June, instead of the April, term, rendered the appeal nugatory.

The authority of the trial judge is limited by and cannot extend beyond, the statutory authority. Cramer v. Reeb, 89 Conn. 669, 96 A. 154.

Under the construction which we have given General Statutes, § 5824, the trial judge has power, for due cause shown, to grant an extension of time for filing an appeal after a finding of facts filed, in the same manner as in cases in which under General Statutes, § 5823, no finding is required to be filed. New York, N.H. & H. R. Co. v. Illy, 79 Conn. 526, 65 A. 965; Equitable Trust Co. v. Plume, 92 Conn. 649, 651, 103 A. 940.

In a note to Mercer Electric Mfg. Co. v. Connecticut Electric Mfg. Co., 87 Conn. 698, 89 A. 909, it appears that after the filing of the finding, a second appeal for errors arising on the trial was filed, to which the plaintiff filed a plea in abatement because that appeal was not filed in time, and the extension of time for filing it was allowed without notice to plaintiff. The trial court, within the 10-day period allowed for filing an appeal, granted an extension of time in which to file an appeal, and thereafter within the period of such extension, but beyond the said 10-day period, granted a further extension. We held the plea insufficient, and held that whether notice of, and a hearing upon, the motion for an extension of time should be given was within the discretion of the court, and that ordinarily such notice or hearing was unnecessary.

In General Hospital Soc. v. New Haven Rendering Co., 79 Conn. 581, 582, 65 A. 1065, 118 Am.St.Rep. 173, 9 Ann.Cas 168, the judgment was rendered October 3d, the notice of appeal filed October 9th, the finding filed December 5th, and the appeal filed December 11th, but no bond was filed with the appeal. On December 24th, the time for filing the bond was extended. The appellee pleaded in abatement in this court upon the ground that defendant's appeal was not filed within 10 days after the filing of the finding as required by statute, and we held the plea insufficient. These and other decisions determine that in the absence of an abuse of discretion the action of the trial judge cannot be reviewed for failure to accord a...