Evergreen Co-op, Inc. v. Michel

• Decision Date: 18 April 1980
• Docket Number: No. 931,931
• Citation: 36 Conn.Supp. 541,418 A.2d 99
• Court: Connecticut Superior Court
• Parties: EVERGREEN COOPERATIVE, INC. v. Felicien MICHEL et al.

Page 99

418 A.2d 99

36 Conn.Supp. 541

EVERGREEN COOPERATIVE, INC. v. Felicien MICHEL et al.

No. 931.

Superior Court of Connecticut, Appellate Session.

Argued Feb. 21, 1980.

Decided April 18, 1980.

Syllabus by the Court

Appeals from judgments in summary process actions must by statute (§ 47a-35) be taken within five days from the date of judgment, excluding intervening Sundays and legal holidays. Where, as here, the fifth day from the date of judgment falls on a day when the clerk's office is closed, an appeal filed on the next business day is deemed filed within five days from the date of judgment.

On the defendants' appeal from a default judgment rendered for the plaintiff in its summary process action, held that because the defendants never received notice from the clerk's office that the plaintiff's motions for default and judgment had been placed on the short calendar for disposition, the trial court erred in hearing the motions and in rendering judgment thereon.

Richard McCarthy, Bridgeport, for appellants (defendants).

Eugene E. Cederbaum, Westport, with whom was Mark A. Rubenstein, Westport, for the appellee (plaintiff).

PARSKEY, Judge.

In this summary process action the court granted the plaintiff's motion for default and thereupon rendered judgment for the plaintiff. The defendants claim that that action was taken without proper notice. Because the resolution of this issue is dispositive of this appeal, we need not consider the other issues raised by the parties.

At the outset, however, the plaintiff questions our jurisdiction to hear the appeal, ¹ claiming that it was not taken within the time limitation provided by General Statutes § 47a-35. That section provides that appeals from judgments in summary process actions shall be taken within five days from the date of judgment, excluding intervening Sundays and legal holidays. Judgment in this case was rendered on September 24, 1979, a Monday. The fifth day from the date of the judgment was September 29, a Saturday. The clerks' offices in the Superior Court are closed on Saturdays. The appeal was filed on October 1, the following Monday, in accordance with Practice Book, 1978, § 405, which allows any matter due on a day when the clerk's office is closed to be filed on the next business day that the office is open. Because the time for appealing summary process judgments is provided by statute, the timeliness of the appeal raises a jurisdictional question.

Since the statute specifically excludes Sundays and legal holidays from the computation but does not exclude Saturdays or other days when the clerk's office is closed, the plaintiff argues, in effect, that when the terminal day falls on Saturday the appeal must be taken within four days from the date of judgment. We do not agree. The clear legislative intent is to allow an appellant five days in which to file an appeal in a summary process action. The statute does not exclude all Sundays and legal holidays but only intervening ones. The import of this language is apparent when the problem is viewed in the context of its common-law background.

At common-law, when the terminal day for the performance of an act fell on a Sunday or a legal holiday, performance on the following day was permissible. Alderman Bros. Co. v. Westinghouse Air Brake Co., 91 Conn. 383, 385, 99 A. 1040 (1917); Sommers v. Adelman, 90 Conn. 713, 714, 99 A. 50 (1916). The reasons underlying the common-law rule are twofold: A party was not obligated to act before the date fixed for his performance; see Avery v. Stewart, 2 Conn. 69, 73 (1816); and he was powerless to act on terminal Sundays or legal holidays. Sommers v. Adelman, supra. Sundays and legal holidays were not excluded from all computations of time. Intervening Sundays, for example, were always included in the computation. Sands v. Lyon, 18 Conn. 18, 31 (1846). Thus, by providing for the exclusion of intervening Sundays and legal holidays from the computation of time for appeals from summary process judgments, the legislature thereby extended the time for appeal by the corresponding business days. See Connecticut Betterment Corporation v. Ponton, 5 Conn.Cir. 265, 267-68, 250 A.2d 340 (1968). If we assume that § 47a-35 represents the legislative determination that five days is a reasonable time to evaluate the judgment and prepare the appeal papers, the exclusion of Sundays and holidays merely allows litigants five working days to prepare the appeal, while resting on Sundays and holidays, traditional days of rest. See Sommers v. Adelman, supra. In making this determination, the legislature was expressing no intent regarding terminal days which fell on days when the clerk's office was closed.

That being the case, whether the appeal may be filed on the next business day when the terminal day falls on a Saturday is a matter of statutory construction. Taking an appeal requires action not only by the appellant; it also requires action by the clerk of court who is to receive the appeal. See Lamberti v. Stamford, 131 Conn. 396, 400, 40 A.2d 190 (1944). It is impossible to file an appeal on the fifth day if the clerk's office is closed. Nothing in the language of the summary process statute suggests that in such circumstances the time within which the appeal is to be taken is limited to four days. Were we to take that view, the legislative will could be frustrated in every case by the simple device of always scheduling short calendar sessions in summary process actions on Mondays. We hold that § 47a-35 is to be construed so that when the fifth day falls on a day when the clerk's office is closed an appeal filed on the next business day is deemed to be filed within five days from the date of judgment.

We note that our holding today does not conflict with the teaching of Aubrey v. Meriden, 121 Conn. 361, 185 A. 87 (1936). In that case the Supreme Court held that a twenty-four hour time limit set out in the Practice Book for filing a motion to set aside a verdict was not extended because the clerk's office was only open until noon on Saturday and, therefore, was closed when the period expired. Pointing out that the usual motion to set a verdict aside is a simple one and that the twenty-four hour rule itself contained an express provision allowing the court to extend the period for...