Etchells v. Wainwright
| Decision Date | 03 March 1904 |
| Citation | 76 Conn. 534,57 A. 121 |
| Parties | ETCHELLS v. WAINWRIGHT et ux. |
| Court | Connecticut Supreme Court |
Case Reserved from Court of Common Pleas, New Haven County; James Bishop, Judge.
Action by Charlotte Etchells against James Wainwright and wife. Application by plaintiff for new trial, to which defendants demurred, and the motion was reserved for the advice of the Supreme Court. Motion denied.
The plaintiff in 1901 brought an action against the defendants in the court of common pleas of New Haven county to recover certain money and property, amounting to about $300, which she alleged the defendants had wrongfully and fraudulently induced her to transfer to them while she was a member of their family, and when, from age and infirmity, she was unable to understand the nature and effect of such transfer. The defendants, while admitting said transfer in their answer, denied that they had wrongfully procured it to be made. On February 26, 1903, and during the January term of said court, terms of which are by statute held on the first Monday of January, March, May, and November, and on the third Monday of September, the court, having heard the parties, found the issues for the defendants, and rendered judgment in their favor for costs. The plaintiff, having given due notice of appeal, filed on the 6th of March, 1903, a draft finding, containing a statement, in 46 separate paragraphs, of facts which she requested the trial judge to find; showing the circumstances, as claimed by the plaintiff, under which said money and property were transferred to the defendants, and containing a statement of certain rulings of the court in excluding questions asked by plaintiff's counsel of the defendants as witnesses, and also a statement of the claims said to have been made by plaintiff's counsel upon said facts, and of the rulings of the court upon said claims. On the 12th of March the defendants filed their counter finding, and both of said proposed findings were given to the Honorable Julius C. Cable, the judge who tried and decided said case. On the 9th of June, 1903, said judge died, without having made a finding of facts in said case. On the 3d of September, 1903, the plaintiff filed in said court of common pleas a written motion, entitled "Plaintiff's Motion for a New Trial," alleging therein that said judgment had been rendered, and said notice of appeal and proposed findings had been filed; that no finding had been made, and that, by reason of the death of the judge who tried the case, no finding could now be made by the court; "that upon the trial of said case there were manifest errors committed by the said judge who tried the same, and which errors were substantial and material, and which entered into, and made a part of, the judgment rendered by said court, and that such errors contributed to, and were the cause of, the judgment so rendered"; that "said judgment was manifestly erroneous, and should be set aside and declared null and void, and the plaintiff should be allowed to have a new trial of said action." Said motion asked the court to "grant a new trial of said action for the reasons" therein stated. To this motion the defendants demurred upon the grounds, among others, that, said motion having been filed after the term in which the judgment was rendered, the court had no jurisdiction to entertain the same; that the law makes no provision for a new trial upon the circumstances alleged in the motion; that no right to a new trial arises from the fact that it was impossible for the trial judge to make a finding; and that it does not appear that there is any reasonable ground for a new trial. The case was reserved for the advice of this court.
Verrenice Munger and Robert L. Munger, for plaintiff.
Frederick W. Holden, for defendants.
HALL, J. (after stating the facts). It is claimed that the defendants, by demurring to the plaintiff's motion, have admitted that the judgment which the plaintiff attempted to appeal from was erroneous. The motion states no facts or rulings showing the claimed error. An allegation in an application for a new trial that the judgment sought to be reversed is erroneous and ought to be set aside because of errors committed by the trial judge is not such a proper and issuable allegation of fact as is admitted by a demurrer; nor ought we, from the demurrer to this motion, to assume, as the basis of our advice in this case, that the judgment in question is erroneous, if it is apparent that the alleged error cannot be shown.
The conclusion which we have reached upon the merits of the question before us renders it unnecessary for us to decide whether, under section 813, Gen. St 1902, a case from the final judgment in which an appeal has been taken to this court is, at a subsequent term, and before the appeal has been perfected, so pending before the trial court that it may entertain any motion concerning it, other than such as relates to the appeal.
Under the motion made by the plaintiff in the court of common pleas on the 3d of September, 1903, she had no better right to a new trial than she would have upon a petition for a new trial under section 815, Gen. St. 1902. In either case she is required to prove by legal evidence the facts upon which she relies to establish her right to a new trial, and in either case a decision in her favor would be subject to review by this court. Carrington v. Holabird, 17 Conn. 530-538; Husted v. Mead, 58 Conn. 55-06, 19 Atl. 233. Indeed, if a decision in plaintiff's favor upon this motion would not have been reviewable, it was not proper to reserve the motion for our advice.
We shall therefore inquire whether the plaintiff, under our law and practice, and upon the facts above stated, would have been entitled to a new trial even if she had proceeded by a petition for a new trial under section 815, which provides that certain courts, including courts of common pleas, "may grant new trials of causes that may come before them respectively for mispleading, the discovery of new evidence, want of actual notice of the suit to any defendant or of a reasonable opportunity to appear and defend when a just defense in whole or part existed; or for other reasonable cause, according to the usual rules in such cases." In the case before us the plaintiff claims to be entitled to a new trial upon the ground that, without her fault, she has become unable, by reason of the death of the trial judge, to complete, as required by statute, an appeal from a final judgment in the court of common pleas, taken to this court for the purpose of having...
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...first trial; and the words `or for other reasonable cause,' mean other causes of the same general character...." Etchells v. Wainwright, 76 Conn. 534, 541, 57 A. 121 (1904) (construing predecessor statute empowering Court of Common Pleas to grant new trial for mispleading, discovery of new ......
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Iovieno v. Commissioner of Correction, 15411
...an appeal cannot ... be modified or extended by any judge or court without express statutory authority." ' Etchells v. Wainwright, 76 Conn. 534, 538, 57 A. 121 (1904). We note, however, that our decision is in accord with Practice Book § [4166c], which provides that a petition for certifica......
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Iovieno v. Commissioner of Correction
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