Johnson v. Cooke
| Decision Date | 26 July 1912 |
| Court | Connecticut Supreme Court |
| Parties | JOHNSON v. COOKE. |
Appeal from Court of Common Pleas, Hartford County; John Coats Judge.
Action by Emma E. Johnson against Alfred C. Cooke. From a judgment for plaintiff, defendant appeals. Error, and new trial granted.
Bernard F. Gaffney, of New Britain, for appellant.
Edward L. Steele, of Hartford, for appellee.
The complaint contains five counts, each of which describes a claim of more than $100 and less than $1,000, and each therefore a claim to recover a sum which is within the original jurisdiction of the Court of Common Pleas. The total of the claims, and of the amounts of the verdicts upon the separate counts, and the amount of the judgment rendered, to wit, $1,801.68, exceeded the jurisdiction of said court.
The fifth count of the complaint, claiming $900, alleges that the plaintiff loaned the defendant $1,160; that the defendant on or about January 1, 1909, placed in the name of the plaintiff certain real estate, called the Rocky Hill property; that upon the plaintiff's refusal to accept it in payment of said sum of $1,160, the defendant promised to sell it for the plaintiff during the year or to pay said sum; that the defendant failed to sell it, and the plaintiff was compelled to sell it for $750 in order to prevent it from being foreclosed for taxes. The defendant demurred to the complaint upon the ground that the action was not within the jurisdiction of the court of common pleas. The court overruled the demurrer.
Paragraph 9 of the answer and paragraph 1 of a " special defense" allege that on January 4, 1909, the Rocky Hill property was so conveyed to the plaintiff " in settlement of all claims and demands between the plaintiff and the defendant" ; and paragraph 2 of the special defense alleges that, on said day, the plaintiff " made and delivered to the defendant a receipt for $1,080 in full of all demands up to January 1, 1909." These averments were denied in the plaintiff's reply.
Upon the trial the defendant offered evidence to prove that on January 4, 1909, he and the plaintiff agreed that the sum due the plaintiff was $1,080, and that on the 5th of January the defendant deeded to the plaintiff, and that she accepted, the Rocky Hill property, in full satisfaction and settlement of said claim of the plaintiff; and the defendant also offered in evidence the following writing: Apparently this writing was received in evidence without objection.
The defendant claimed to have proved that the Rocky Hill property was worth $1,080. The plaintiff claimed to have proved that it was worth but $750.
The plaintiff upon the trial denied that she agreed to accept, or that she accepted, said property, as alleged by the defendant, and denied that she ever signed or delivered said writing.
The defendant, upon the trial, testified that, after he received the writing, he altered it by inserting " Mrs." before the name Alfred C. Cooke, for the purpose of making it appear that the plaintiff had received said sum from the defendant's wife, and to affect the result of another suit against the defendant.
The court charged the jury, in substance, that even though they should find that said writing was signed by the plaintiff, yet if they found that the defendant had altered it, as above stated, after having received it, it thereby became void. The court in its charge made no reference to the issues raised by the averments of paragraph 9 of the answer, and paragraph 1 of the special defense, and the plaintiff's denials of said averments, nor to the respective claims of the parties under such issues.
The trial court states in its finding that there were no written requests to charge, and that it was " wholly unaware that the defendant desired that the jury should be instructed upon any matters of law not stated in its charge."
None of the eight reasons of appeal are proper in form. None of them allege an error of the trial court. Each begins with the words " Whether or not the court erred" in its stated action. This, as we have before had occasion to state, is not a proper form for an assignment of error. Case v. Clark, 83 Conn. 183, 195, 76 A. 518; General Statutes, § 798.
The first so-called assignment of error, which recites nearly a page of the charge of the court, to portions of which it was manifestly not intended to except, is open to the further objection that it fails to properly point out the part of the charge complained of. State v. Tripp, 84 Conn. 640, 643, 81 A. 247. But as no objection is made to the form of the appeal, and as we are of opinion that a new trial ought to be granted, we shall consider some of the questions thus inartificially stated in the appeal.
The demurrer to the complaint was properly overruled. A demurrer was not a proper form of...
To continue reading
Request your trial