Leahey v. Heasley

• Decision Date: 26 November 1940
• Citation: 127 Conn. 332,16 A.2d 609
• Court: Connecticut Supreme Court
• Parties: LEAHEY v. HEASLEY.

16 A.2d 609

127 Conn. 332

LEAHEY v. HEASLEY.

Supreme Court of Errors of Connecticut.

November 26, 1940

Error from Superior Court, New Haven County; Frank P. McEvoy Judge.

Action by Elizabeth Leahey, administratrix of the estate of Cornelius Leahey, deceased, against Hugh J. Heasley, to recover for the deceased's death which was allegedly caused by the negligence of the defendant. The plaintiff filed an amendment to the complaint after the defendant's answer thereto and claimed the case for the jury. The court McEvoy, J., granted a motion to strike the case from the jury docket, and the case was tried to the court. From a judgment in favor of the defendant, the plaintiff appeals.

Error and new trial ordered with directions to grant plaintiff's motion to place the case on the jury docket.

Joseph M. Navin, and Hugo Gustaferri, both of Waterbury, for appellant.

William B. FitzGerald, of Waterbury, for appellee.

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

ELLS Judge.

The case which is the subject of this appeal is a negligence action, and is concededly within the provisions of General Statutes, § 5624, which gives either party the right to have a case placed on the jury docket provided a written request is made to he clerk within thirty days after the return day, or, upon the request of either party, within ten days after ‘ an issue of fact is joined.’ or at any time upon written consent of all parties or by order of court. The record discloses that an issue of fact was joined and the pleadings closed, at least for the time being, on October 6, 1939. On November 9th the plaintiff moved for permission to amend the complaint, and the motion was granted on December 22. The amendment added a new and specific claim of negligence. On December 27th the defendant filed an amended answer denying the new allegations, and within ten days thereafter, on January 5, 1940, pursuant to the plaintiff's written claim, the case was placed on the jury docket. The court granted defendant's motion to strike the case therefrom.

The trial court ruled that by permitting more than ten days to elapse after an issue of fact had been joined without filing a claim for the jury docket the plaintiff had waived her right to make such claim within ten days after a later issue of fact had been joined.

Section 5624 of the General Statutes mentions two periods within which an issue proper for the jury may be put on the jury docket. One is ‘ within thirty days after the return day.’ The other is the provision in question in this case, and it reads as follows: ‘ When * * * an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk; * * *.’ In Noren v. Wood, 72 Conn. 96, 43 A. 649, we construed the word ‘ when’ to mean ‘ whenever.’ There have been slight changes in the statute since the date of the opinion, but none which affect the issue now before us. We said (72 Conn. at page 98, 43 A. at page 650): ‘ To give it [the statute] any reasonable construction, it must be read as creating two periods within which an issue proper for the jury may be put on the jury docket. One is the period of thirty days from the return day of the suit; the other is the period beginning at the termination of the thirty days, and ending whenever such an issue is joined. And the act allows 10 days after such latter period-that is, after an issue is joined-within which either party may, upon request, have the action put on the jury docket.’ We held that a claim for the jury docket made within ten days after the joining of an issue on a substitute complaint was good, although issue had been joined on the original complaint some months before. This case is decisive of the question now under consideration.

In Rowell v. Ross, 91 Conn. 702, 101 A. 333, there had been a court trial, and upon appeal the case was sent back for a new trial. Without raising any new issues of fact by amendment, the defendant attempted to have the case placed on the jury docket. The court denied the motion, and upon appeal we said (91 Conn. at page 708, 101 A. at page 335): ‘ These last requests that the case be entered on the jury docket were not made * * * within 30 days of the return day of within 10 days after an issue of fact was joined as required by statute. When a case is sent back to the Superior Court for a new trial, it goes back to the same docket as before. If to the court docket, it remains there unless an issue of fact is afterward joined, when it may be transferred to the jury docket on request within 10 days thereafter. But the statutes make no provision for the transfer to the jury docket of a case which has been tried to the...