De Feo v. Hindinger
| Decision Date | 01 March 1923 |
| Court | Connecticut Supreme Court |
| Parties | DE FEO v. HINDINGER ET AL. |
Appeal from Superior Court, New Haven County; John W. Banks, Judge.
Replevin for the possession of an automobile and for damages by Henry De Feo against William H. Hindinger and another. From judgment for plaintiff, defendants appeal. No error.
Ernest L. Isbell, of New Haven, and Milton C. Isbell, of Ansonia for appellants.
John J. Sullivan, of New Haven, for appellee.
If the finding is not further corrected it could not seriously be claimed that judgment was not properly rendered for the plaintiff. The defendants seek by securing corrections and additions to the finding to obtain a finding which would not support a judgment for the plaintiff. The defendants filed a draft finding, and when the court filed its finding they filed a motion to correct and add to the finding, and the court marked 19 paragraphs of their draft finding " Proven," and the remaining seven paragraphs " Not Proven." This is an appeal in an action tried to the court without a jury, and the defendants mainly rely upon errors of the trial court in failing to correct or add to the finding upon their motion to correct and add to the finding with written exceptions annexed thereto, and they seek corrections in and additions to the finding to be made by this court. They are proceeding under the provisions of General Statutes, § § 5830, 5831, and the rules of court made in relation to such an appeal. Practice Act 1908 p. 268, § § 8, 9, 10, 11, and page 273, par. 3; Practice Act 1922, p. 308, § § 9, 10, page 309 § § 11-13, and page 313, par. 3.
An examination of General Statutes, § § 5830, 5831, and these rules of court disclose that, when a finding has been filed in an action tried to the court without a jury, either party may file a motion to correct or add to it, and may annex to the motion written exceptions to any finding of a fact therein or to any refusal to find a fact as requested by him in his draft finding, and the evidence claimed to be material as to the existence of the facts to which the exceptions relate shall be made part of the record.
The written exceptions annexed to the motion to correct are the foundation of any appeal relating to the correction of a finding. The rules just cited provide the grounds upon which the exceptions are to be based. An exception should state the ground or basis of the exception substantially on one of the grounds disclosed by the rules. Perrotti v. Bennett, 94 Conn. 537, 109 A. 890.
Practice Act 1922, p. 308, § 11 (Practice Act 1908, p. 268, § 10), provides that the written exceptions may be for one or more of the following grounds:
(1) A refusal by the court to find a material fact which was an admitted or undisputed fact.
(2) A finding of a fact in language of doubtful meaning, so that its real significance may not clearly appear.
(3) A finding of a material fact without any evidence.
It is to be observed that it is not a permissible ground of exception that a fact was found against the weight of the evidence.
General Statutes, § 5830, provides that a party may move to have a finding corrected by adding paragraphs appearing in his draft finding; it does not provide that a party may move to have a series of facts found as to which he made no request to find in his draft finding.
The written exceptions which the defendants annexed to their motion to correct did not contain any of the grounds for expunging or adding to the finding recited above. Assuming that the defendants deemed that the form of an exception given in section 5830 warranted the form used by them, we turn to the reasons of appeal to learn whether the grounds upon which they base their request for a correction appear there. The reasons of appeal fail to set up any grounds for correcting the finding which the rules specify. There is, therefore, no reference in the exceptions or reasons of appeal directly or by reference to the motion to correct, to the grounds for expunging a fact found, or adding a fact to a finding as they are set forth in the rules of court as cited above.
The exceptions and reasons of appeal are apparently based on a claim that some facts were found against the weight of evidence. That is not a permissible basis for an exception or reason of appeal. Where a fact is found against the weight of the evidence or under conflicting evidence, the court cannot retry the fact by considering and weighing the evidence. That is the exclusive province of the trial court. Because of the absence from the exceptions or reasons of appeal of any permissible grounds for correcting the finding, there is no basis in the record for a correction of the finding by this court.
In the defendants' motion to correct they asked " that paragraph 5 of the finding be expunged as against the evidence, and because it is a finding without evidence." This last reason is stated in accord with the provision of Practice Act 1908, p. 268, § 10 (3). If it had been alleged in those terms, or by reference to the motion, in the exceptions or in the reasons of appeal, it would have furnished a proper basis for consideration on the appeal.
Paragraph 5 of the finding reads:
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