Lake Garda Co., Inc. v. LeWitt

• Decision Date: 01 May 1940
• Court: Connecticut Supreme Court
• Parties: LAKE GARDA CO., Inc., v. LeWITT.

13 A.2d 510

126 Conn. 588

LAKE GARDA CO., Inc., v. LeWITT.

Supreme Court of Errors of Connecticut.

May 1, 1940

Appeal from Superior Court, Hartford County; Ernest A. Inglis Judge.

Action to foreclose a lien by the Lake Garda Company, Inc., against George LeWitt. The City Court of New Britain rendered judgment for plaintiff and defendant appealed to the superior court which granted a motion to dismiss the appeal, and defendant appeals.

No error.

M. J. Blumenfeld and DeLancey Pelgrift, both of Hartford, for appellant.

Samuel Rosenthal, of Hartford, for appellee.

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

The trial court filed the following memorandum of decision:

This action was returned to the City Court of New Britain. That court entered judgment in favor of the plaintiff and from that judgment the defendant has taken an appeal to this court. This motion to dismiss the appeal is based on the contention that § 1364e, Cum.Supp.1939, allows appeals from city courts in towns of over 15,000 population only to the Supreme Court of Errors. The defendant's contention is that the charter of the city of New Britain provides for such an appeal as this and that the 1939 act relating to minor courts has not repealed that provision of the charter.

It is true that the minor court act does not expressly repeal the charter provision. The question, therefore, is as to whether the charter provision is repealed by implication. An earlier statute is impliedly repealed by a later statute only if the latter is necessarily repugnant to the former. Leete v Griswold Post, 114 Conn. 400, 405, 158 A. 919. The question, therefore, is as to whether the provisions of the minor courts act are repugnant to the charter provision which allows appeals from the City Court of New Britain to the Superior Court, and that question turns on the interpretation of the section of the minor courts act which provides for appeals.

That section reads in part as follows: ‘ Sec. 1364e. Appeals . Except in summary process and bastardy actions, appeals from civil judgments of any town, city, city and police or borough court in any town, city or borough having a population, according to the 1930 federal census, of fifteen thousand or more, may be taken to the supreme court of errors in the manner provided by law for appeals from the superior court.’

That section makes no other provision for appeals from civil judgments of city courts in towns of over 15,000 population, except that it expressly provides that appeals from such courts in bastardy actions shall lie to the Court of Common Pleas, if any, in that county, otherwise to the Superior Court. It does provide for appeals from such courts in towns of less than 15,000 population, stating that, if taken, they shall be taken to the Court of Common Pleas, if there is such a court in the county, otherwise to the Superior Court.

If that section is to be interpreted as expressing the intention of the Legislature that the remedy by appeal provided for therein is an exclusive remedy,-that is, if it was the intention of the Legislature that that section should provide for all appeals to be taken from the minor courts, then, of course, it is clear that it does repeal by implication the provision of the charter of the city of New Britain which provides for appeals to the Superior Court.

There is no especial significance in the fact that the section reads that appeals ‘ may’ be taken to the Supreme Court of Errors rather than that they ‘ shall’ be so taken. The word ‘ may’ when used in a statute is to be interpreted as mandatory rather than permissive if the context permits it and it is necessary to do so in order to make the statute effective to carry out the legislative intent. State ex rel. Foote v. Bartholomew, 103 Conn. 607, 612, 132 A. 30; Burnap v. Water Commissioners, 94 Conn. 286, 292, 108 A. 802; State v. Conlon, 65 Conn. 478, 487,33 A. 519,31 L.R.A. 55, 48 Am.St.Rep. 227 [to which might be added Capobinco v. Samorak, 102 Conn. 310, 313, 128 A. 648, where many cases on the point are cited]. It is interesting to note that the statute which provides for appeals from the Courts of Common Pleas as well as from the Superior Court (§ 5689, General Statutes, Rev.1930) reads that, if either party shall consider himself aggrieved by the decision, ‘ he may appeal from the final judgment’ to the Supreme Court of Errors. No one would seriously contend that because the word ‘ may’ had been used there instead of the word ‘ shall’ it would follow that Legislature had not intended that that section should provide the exclusive remedy by appeal from the Courts of Common Pleas and the Superior Court.

If the Legislature, in framing § 1364e, had said that appeals ‘ shall’ be taken to the Supreme Court of Errors instead of that they ‘ may’ be so taken, the section would have been open to the interpretation, rather forced it is true, but nevertheless, possible, that judgments of the city courts were not final and that appeals must be taken in all cases. In other words, if what the Legislature intended to say was that a judgment of a City Court need not be appealed from but, if it is, the appeal will lie only to the Supreme Court, the most apt and direct way of expressing that intention in the sentence as it is framed was for it to use the word ‘ may’ rather than the word ‘ shall’ and to express its intention is just the way the section now reads.

In this connection, it has been pointed out that, in providing for appeals from the minor courts in towns of less than 15,000 population, the Legislature has used the word ‘ shall.’ The second sentence of the section which provides for such appeals reads that an appeal if taken within one week ‘ shall be allowed.’ From this it is argued that in the first sentence of the section, the one providing for appeals from minor courts in towns of over 15,000, the Legislature must have used the word ‘ may’ in contradistinction to the word ‘ shall’ and with the intent that an appeal to the Supreme Court was only permissive. The answer to that is that the construction of the second sentence of the section is radically different from that of the first sentence, and that, as the second sentence is constructed, the word ‘ shall’ is apt to express the intention that any appeal which is taken must be taken to the specified court, whereas in the first sentence as that is constructed it would not be apt and precise for that purpose.

In interpreting any part of an act of the Legislature, if any doubt arises as to the intention expressed therein, one must look to the entire act to find the purpose of the Legislature as an aid. Section 1364e is a part of the minor courts act passed by the 1939 General Assembly, now Chapter 281b of the General Statutes, 1939 Supplement. It is apparent from a survey of that whole act that it was the intention of the Legislature to preserve merely the structure of the town city and borough courts theretofore existing and to provide a new and uniform jurisdiction and practice and procedure for those courts. Section 1361e establishes the jurisdiction of such courts. There is no possibility of argument that any of these courts may still have any other limits of jurisdiction because the charter provision relating to them gives them such. Section 1362e specifies how and when process shall be served and returned to these courts. It could not reasonably be contended that charter provisions as to the time of service and return of process still hold good. Section 1363e lists the fees that are to be collected by the clerks, obviously supplanting any charter provisions in relation thereto. Section 1365e provides for a waiver of jury trial and that there shall be no jury in the minor courts. Section 1367e provides for rules of practice. It is clear that in all town, city and borough courts, irrespective of charter provisions, from now on there will be no juries and the practice will be in accordance with the...