Davidson v. Max Ripps Co.

• Decision Date: 13 June 1912
• Citation: 83 A. 532,85 Conn. 444
• Court: Connecticut Supreme Court
• Parties: DAVIDSON v. MAX RIPPS CO.

83 A. 532

85 Conn. 444

DAVIDSON v. MAX RIPPS CO.

Supreme Court of Errors of Connecticut.

June 13, 1912

Appeal from Court of Common Pleas, New Haven County; Isaac Wolfe Judge.

Action by Barnett Davidson against the Max Ripps Company to recover for merchandise alleged to have been sold by plaintiff to defendant. From a judgment for plaintiff, defendant appeals. Affirmed.

Benjamin Slade, of New Haven, and Spotswood D. Bowers, of Bridgeport, for appellant.

Barnett Berman, of New Haven, for appellee.

RORABACK, J.

It was found by the trial court that upon the 20th of December, 1910, the plaintiff sold and delivered to the defendant company certain articles of merchandise of the price and value of $486, which sum has never been paid. One reason of appeal alleges that these conclusions are not justified by the evidence before us. The remaining reasons of appeal are upon alleged errors in finding certain material facts and in refusing to find other facts. The latter is claimed to be based on section 797 of the General Statutes, which provides that, in lieu of a motion to correct, the evidence and rulings may, within one week after the filing of the finding, be filed and certified, and the claims for correction therein may be set forth in the assignments of error on appeal. The record discloses that the finding made by the court of common pleas was filed January 11, 1912, and refiled January 13, 1912. It also appears that on January 15, 1912, the defendant commenced an appeal under sections 795 and 796. This appeal was not completed, and upon January 26, 1912, the trial court allowed a motion to withdraw these proceedings. Upon January 17, 1912, the appeal now under consideration was filed and perfected by giving a bond for costs.

The plaintiff now moves to dismiss the appeal because it appears that the defendant commenced an appeal under the provisions of sections 795 and 796 of the General Statutes, and also under section 797, and that it cannot proceed under both methods to obtain the corrections sought. A mere attempt to take an appeal which is not perfected does not affect the jurisdiction of the trial court. Strong v. Hardenburgh, 25 How. Prac. (N. Y.) 439. The court of common pleas having allowed a motion to dismiss the proceedings first commenced, the case then stood in the court below as though the attempt to appeal had not been made.

It is also urged that the reasons of appeal are defective in that they are not specific and definite. An assignment of error directed to the rulings or action of the court should specify the particular part questioned. Water Commissioners v. Robbins, 82 Conn. 623, 641, 74 A. 938. Each of the paragraphs of the finding, or request to find, referred to in the appeal now under consideration, contains but a single question.

The method followed by the appellant in its motion to correct, in referring to these paragraphs without repeating the language was sanctioned by the court in Julian v. Stony Creek Red Granite Co., 71 Conn. 632, 640, 42 A. 994. Therefore we have treated this...