Forbes v. Town of Orange

• Decision Date: 31 July 1911
• Citation: 84 Conn. 577,80 A. 710
• Court: Connecticut Supreme Court
• Parties: FORBES v. TOWN OF ORANGE.

80 A. 710

84 Conn. 577

FORBES

v. TOWN OF ORANGE.

Supreme Court of Errors of Connecticut.

July 31, 1911.

Appeal from Superior Court, New Haven County; Gardiner Greene, Judge.

Action by John P. Forbes against the Town of Orange. From a judgment for plaintiff, defendant appealed. Plaintiff filed a plea in abatement to defendant's appeal to this court, to which the defendant replied, and the plaintiff demurred to the reply. Demurrer overruled, and plea in abatement dismissed.

Wright & Wright and James D. Hart, for appellant.

Philip Pond, for appellee.

HALL, C. J. The plaintiff filed in this court the following plea in abatement to the defendant's appeal: "The plaintiff in the above-entitled action pleads in abatement to the appeal filed therein April 29, 1911, from the action of the superior court in denying the defendant's motion to set aside the verdict, because said motion to set aside the verdict was denied April 13, 1911, and no appeal was taken from said action of the court denying said motion within 6 days from the denial of said motion as by statute provided, and said appeal was not taken until April 29, 1911, being 16 days after the denial by said superior court of said motion to set aside the verdict. And therefore he prays judgment."

To this plea the defendant made the following reply: "the defendant, in reply to the plea in abatement filed by the plaintiff, says that, upon due application and hearing before the trial judge in said cause, the time for filing an appeal to this court was extended to and including the 1st day of May, 1911; and that said appeal was taken on the 29th day of April, and within the time allowed by said trial judge. And therefore it prays judgment."

The plaintiff filed the following demurrer to the reply: "The plaintiff demurs to the defendant's reply filed this day to plaintiff's plea in abatement because: (1) An appeal from the denial of a motion to set aside a verdict must by statute be taken within 6 days from the time of such denial. (2) The trial court has no authority to extend the time for filing an appeal from the denial of a motion to set aside a verdict. (3) It appears from the reply that the appeal was not filed within the 6 days limited by statute."

Section 791, General Statutes, provides that, if no finding of facts or further action of the trial judge is necessary, the party appealing to this court shall file his appeal with the clerk of the trial court within 10 days from the rendition of judgment, but that the judge of such court may for due cause shown extend the time for filing such appeal. Section 792 provides that, if it becomes necessary that there should be a finding of facts, the appeal need not be filed until 10 days after such finding has been filed, and notice thereof duly given. This section contains no express provision authorizing the trial judge to extend the time for filing the appeal. Section 805, under which the present appeal is taken, provides that the party making the motion to set aside a verdict, which motion is denied, may appeal to this court within 6 days after the entry of judgment on the verdict. This section, like section 792, contains no express provision authorizing the trial judge to extend the time for filing the appeal.

We have recently held that the provision of section 791 empowering the trial judge to extend the time of filing an appeal, taken under the conditions described in that section, authorized the trial judge to extend the time for filing an appeal taken under the conditions stated in section 792, although such authority is not in terms given in that particular section. We said in effect that the...