Fleming v. Moran
| Decision Date | 14 December 1949 |
| Citation | 136 Conn. 274,71 A.2d 96 |
| Court | Connecticut Supreme Court |
| Parties | FLEMING v. MORAN. Supreme Court of Errors of Connecticut |
Hugh J. McGill and Walter W. Smyth, Waterbury, James R. Lawlor, Jr., Waterbury, for the plaintiff in error.
Harry M. Albert, Waterbury, Michael V. Blansfield, Waterbury, for defendant in error.
Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ. DICKENSON, Judge.
The present defendant brought an action of summary process against the present plaintiff for possession of leased premises on the ground of nonpayment of rent. The plaintiff interposed three defenses: (1) she was not the tenant, the premises being occupied by her father; (2) the lessor had waived payment when due; (3) the lessor had altered the premises without first obtaining a certificate of occupancy, which was required by statute and was a prerequisite for maintaining the action. Judgment was entered for the lessor 'to recover possession of premises as per Memorandum of Decision in file.' The memorandum recites among other things that the present plaintiff is the tenant, that she refused to pay the rent due January 1, 1949, that a certificate of occupancy was issued in accordance with the custom of the building inspector, and that the lessor did not waive the right to have the rent paid within the statutory period.
The plaintiff brought this writ of error from the judgment and filed a bill of exceptions setting up facts supporting her defenses. The trial court disallowed the bill and itself filed a bill reciting facts supporting its judgment. The plaintiff, in her brief, claims that the court was in error in so doing. She also assigns error as to facts stated in the court's bill of exceptions.
While we stated in Noll v. Moran, 94 Conn. 452, 456, 109 A. 241, that the function of a bill of exceptions was analogous to that of a finding of facts in a procedure by appeal, we did not mean that it was identical in all respects. We also said that the bill of exceptions must supply the court of review with all of the information necessary for the determination of the matter submitted and, 94 Conn. at page 454, 109 A. at page 242, that bringing up the evidence in no way enlarges the legitimate sources of our information. 'The bill should be tendered at the trial, and should truly state the facts: if not, the court ought to correct and sign it. * * *' 1 Swift's Digest 771. When it comes before us we must assume that the court has properly performed its duty and has placed on the record all the material facts necessary for a review of the questions raised on the writ of error. Mangusi v. Vigiliotti, 104 Conn. 291, 293, 132 A. 464; Conn.App.Proc. § 135. In this sense a bill of exceptions takes the place of a finding. See Putterman v. Miller, 133 Conn. 70, 72, 48 A.2d 235; Vogel v. Bacus, 133 Conn. 95, 96, 48 A.2d 237, 169 A.L.R. 910. We confine our consideration of the case to the question of error in the judgment based upon the bill of exceptions before us.
The judgment file states that the judgment is for...
To continue reading
Request your trial
-
Mayron's Bake Shops, Inc. v. Arrow Stores, Inc.
...is to be tested by the facts stated in the bill of exceptions. Cohn v. Fennelly, 138 Conn. 474, 475, 86 A.2d 183; Fleming v. Moran, 136 Conn. 274, 276, 71 A.2d 96; Kovner v. Dubin, 104 Conn. 112, 117, 132 A. 473; Maltbie, Conn.App.Proc. § 241. In the present case, the parties have, followin......
-
Cohn v. Fennelly
...by the tenant. In testing the correctness of the judgment we are confined to the facts stated in the bill of exceptions. Fleming v. Moran, 136 Conn. 274, 276, 71 A.2d 96. They may be summarized as follows: In December, 1949, the tenant was in possession of the premises under a lease which e......