Klein v. Capitol Nat. Bank & Trust Co.

• Decision Date: 05 January 1938
• Citation: 124 Conn. 685,2 A.2d 489
• Parties: KLEIN v. CAPITOL NAT. BANK & TRUST CO. et al.
• Court: Connecticut Supreme Court

2 A.2d 489

124 Conn. 685

KLEIN v. CAPITOL NAT. BANK & TRUST CO. et al.

Supreme Court of Errors of Connecticut.

January 5, 1938

Action by Arthur Klein against the Capitol National Bank & Trust Company and others. From the denial as to one defendant of defendants' motion to set the verdict for plaintiff aside and from an adverse judgment, such defendant appeals. On plaintiff's motion to erase appeal and on plaintiff's plea in abatement, to which plea defendant filed a demurrer.

Motion to erase the appeal denied, with instructions relative to the appeal.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

PER CURIAM.

On October 28, 1937, the plaintiff recovered a verdict against all three defendants. They made a motion to set it aside, and the court, on November 16, 1937, granted this motion as to two defendants but denied it as to the third. On November 30 1937, this defendant filed an appeal in which he stated that he appealed ‘ from the denial of his motion to set the verdict aside and from the judgment.’ On December 1 1937, he asked and was granted an order extending the time in which to file assignments of error and a request for a finding and a draft-finding. The plaintiff filed a motion to erase the appeal from the docket and a plea in abatement each stating as the ground upon which it rested that the defendant was attempting to combine in a single appeal one taken from the denial of the motion to set the verdict aside and one taken from the judgment. The defendant has filed a demurrer to the plea in abatement upon the ground that such a plea is not the proper proceeding to present the defect of which the plaintiff complains.

Speaking generally, a motion to erase an appeal from the docket is proper where there is an attempt to take an appeal when it appears upon the face of the record that no appeal lies, as, for example, where the Supreme Court lacks jurisdiction; Ragali v. Holmes, 111 Conn. 663, 665, 151 A. 190; Heard v. Heard, 116 Conn. 632, 637, 166 A. 67; or where there is no final judgment from which an appeal can be taken. Wardell v. Killingly, 96 Conn. 718, 723, 115 A. 539; Marcil v. A. H. Merriman & Sons, Inc., 115 Conn. 678, 682, 163 A. 411. On the other hand, a plea in abatement is the proper procedure where an appeal lies but the claimed defect is a failure to take the steps provided in the statutes and rules as necessary for its proper presentation to the court, a defect which makes the appeal voidable merely and not void. Ghent v. Stevens, 114 Conn. 415, 416, 159 A. 94, 96, note. It is true that in Joseph v. Donovan, 116 Conn. 160, 161, 164 A. 498, note, it was ruled that the proper procedure to take advantage of a failure to file assignments of error within the time allowed was by motion...