Fox v. City of South Norwalk

• Decision Date: 07 March 1912
• Court: Connecticut Supreme Court
• Parties: FOX et al. v. CITY OF SOUTH NORWALK.

82 A. 642

85 Conn. 237

FOX et al. v. CITY OF SOUTH NORWALK.

Supreme Court of Errors of Connecticut.

March 7, 1912

Appeal from Superior Court, Fairfield County; Edwin B. Gager, Judge.

Action by Ella J. Fox and others against the City of South Norwalk. From a judgment for plaintiffs, defendant appeals. Reversed and remanded in part.

Appeal asking for a reappraisal of benefits and reassessment of damages accruing to the plaintiffs from the lay-out widening, and grading of a public street, brought to Hon Edwin B. Gager, a judge of the superior court, who accepted the report of a committee by him appointed to make such reappraisal and reassessment, and rendered judgment thereon. The defendant appeals for alleged errors of the judge in refusing to recommit the report, as requested by the defendant, in sustaining a demurrer to the defendant's remonstrance to the acceptance of the report, and in allowing interest on the amounts assessed by the committee. Error in part.

John Keogh and Nehemiah Candee, for appellant.

John H. Light, for appellees.

THAYER, J. (after stating the facts as above).

A committee, appointed by Judge Gager to reappraise and reassess benefits and damages, assessed the damages accruing to the plaintiffs from the lay-out, widening, and grading of the street in question at a greater sum than was assessed in their favor on the original assessment, and appraised their benefits at a lesser sum. When the report came in, the defendant moved for its recommittal to the committee with instructions that it should be so amended as to state all the rulings upon evidence admitted or excluded by the committee against the defendant's exceptions, to state all the claims of law which were made by the defendant upon the hearing, and to state all the subordinate facts upon which the conclusions as to benefits and damages were based. The motion was denied, except that the report was referred back for a statement of the specific elements of damage taken into account by the committee in reaching its conclusions as to the damages.

The committee was appointed to make a reappraisal and reassessment of benefits and damages. Having done so, it was his duty to report to the judge who appointed him the assessment of benefits and damages found by him. It was not his duty to make a full finding of all the subordinate facts nor of the claim of law made by the parties before him, nor of his rulings upon evidence. This may be done by a committee (McKeon v. Byington, 70 Conn. 429, 432, 39 A. 853); but, unless substantial questions are raised at the hearing which the committee has reason to believe one of the parties will desire to pursue before the court, upon remonstrance, it is better to report the ultimate fact, without loading the record with a full report of the hearing. In like manner, where only a single question or few questions, not calling for a full report of the proceedings, are raised, the committee may report the fact or facts necessary to present such questions, and omit all facts not necessary to their proper presentation. This is a proper course to pursue where the committee is informed that the ruling is to be questioned on a remonstrance; for thus, in a simple way, is placed upon the record the rulings of the committee complained of, so that the party claiming to be aggrieved thereby may, without setting out the facts and rulings in his remonstrance, get a ruling of the court as to the correctness of the committee's action.

Where this course is not pursued by the committee, the court, upon motion, may doubtless recommit the report, to be so amended that the rulings by which a party claims to be aggrieved shall appear. But this is within the discretion of the court (Wilcox v. Meriden, 57 Conn. 120, 124, 17 A. 366), and will only be done when it is made to appear to the satisfaction of the court that the party moving may be aggrieved by the rulings complained of. The defendant's motion, of which the disallowance in part is made a ground of appeal, did not state the nature of any of the rulings which it asked the judge to direct to be found, nor that the defendant was aggrieved thereby, or by the conclusions drawn from the subordinate facts which it asked the court to have reported. It was a request for a full finding by the committee, without stating that such finding would show the defendant to be aggrieved by any ruling or fact which would thereby appear. The court, in denying the motion, so far as it did deny it, committed no error, but exercised wisely its discretion. Were this not the case, error could not be predicated upon the judge's action in disallowing the motion, as it was addressed to his discretion. Wilcox v. Meriden, supra, 57 Conn. 124, 17 A. 366.

Where the committee reports only the ultimate fact found, the party claiming to be aggrieved by any ruling or conduct of the committee on the hearing, and seeking relief therefrom, must, unless the court, on motion, recommits the report, file a remonstrance against the acceptance of it, and therein state specifically the rulings complained of, with such facts as, it is claimed, show their materiality to the issue before the committee, and that they were wrong and harmful to the remonstrant. Geary v. New Haven, 76 Conn. 84, 91, 55 A. 584. The facts relied upon by the remonstrant are thus spread upon the record. If the other party claims that there were no such rulings as claimed, he can answer the remonstrance by a denial of the facts alleged. If he admits that the rulings complained of were made, but claims that they were correct, or, if not correct, not harmful to the remonstrant, he may demur. The questions which the court or judge is to try upon a remonstrance are the questions of fact or law thus presented. The questions of fact tried by the committee cannot be retried by the court upon a remonstrance.

When the supplemental report ordered by the judge in the present case came in, the defendant filed a remonstrance thereto and to the original report. The first ten and the twentieth grounds of remonstrance relate to the failure of the committee to set out in the report his rulings upon evidence and...