Lippitt v. Bidwell

• Decision Date: 15 January 1914
• Citation: 87 Conn. 608,89 A. 347
• Court: Connecticut Supreme Court
• Parties: LIPPITT et al. v. BIDWELL et al.

89 A. 347

87 Conn. 608

LIPPITT et al.

v. BIDWELL et al.

Supreme Court of Errors of Connecticut.

Jan. 15, 1914.

Error from Superior Court, Hartford County; Ralph Wheeler, Judge.

Receivership preceedings against the Windsor Locks Savings Bank, in which Frederick S. Bidwell and others intervened by petition for the allowance of a claim for rent. From a memorandum of decision allowing the claim, Norris S. Lippitt and Fred. P. Holt, as receivers of the bank, bring writ of error. Claimants filed a plea to the jurisdiction and in abatement, to which the receivers demurred. Demurrer sustained, plea overruled, and writ of error dismissed.

Ralph O. Wells and Stewart A. Dunning, both of Hartford, for plaintiffs in error.

William F. Henney, of Hartford, for defendants in error.

THAYER, J. This case is docketed as a writ of error to the superior court. A writ of error is an independent action brought by writ, accompanied by a complaint setting out the record of the case resulting in the judgment complained of, and assigning the errors apparent therein as grounds for the reversal of the judgment. State v. Caplan, 85 Conn. 618, 626, 84 Atl. 280. It lies only upon a final judgment, and only where there is error apparent upon the judgment record. Corbett v. Matz, 72 Conn. 610, 615, 45 Atl. 494, 48 L. R. A. 217.

It is enough to allege in the writ of error that in an action brought by (or against) the plaintiff in error to the court whose action is complained of, such proceedings were had as appear by a copy of the record thereof attached to the writ of error, and that the trial court in proceeding to and rendering the judgment therein manifestly erred and mistook the law, and to then assign the errors which are claimed to have been committed, and ask for the reversal of the judgment This is the brief form given in Practice Book, p. 479. It is unnecessary and improper to include in the writ of error allegations of fact outside the record to show that the judgment was erroneous. These, if sufficient to warrant a reversal, must be taken advantage of in a different way. The writ now before us is filled with such allegations and with allegations showing an attempt to obtain a finding for appeal after the judgment was rendered and its failure because of the death of the trial judge. Instead of serving any good purpose these allegations have led to further unnecessary pleading—a plea to the jurisdiction and in abatement, to which the plaintiffs have demurred. The question of law thus raised now calls for decision.

The allegations referred to show that the plaintiffs in error are the receivers of the Windsor Locks Savings Bank whose affairs are being wound up in the superior court. Before receivership proceedings were commenced the bank had occupied a room in the defendant's building. The plaintiffs in error after their appointment removed the bank's effects from the room, and paid the defendants two months' rent for the time occupied in such removal. The defendants, claiming that the bank had leased the room for a term of 10 years, presented a claim to the receivers for damages for the abandonment by them of the lease. This claim was disallowed by the receivers. Upon motion by the defendants a hearing upon the claim was had before the court in the receivership proceeding, and the claim, to the amount of $1,480, was allowed, as appears by the memorandum of the trial judge on file. A request for a finding was then made by the plaintiffs with a view to an appeal, but the trial judge died without making a finding.

Public Acts 1905, c. 62, provide that when "final judgment has been rendered in any cause in the superior court, * * * an appeal from which lies to the Supreme Court of Errors, and a notice of appeal from sill judgment has been filed, if the judge who heard such cause shall die or become incapable of making a finding for purposes of appeal, any party to such cause against whom the judgment has been rendered may make a motion in writing, in said court, for a new trial. * * * A statement of the errors which it is claimed occurred in the trial of said case shall be made as a part of said motion. Upon the filing of said motion the court shall hear the same, and if in its opinion the errors claimed to have been committed are of such a nature as fairly entitle the party appealing to a review of said assignment of errors by the Supreme Court a new trial shall be granted." The plaintiffs failed to file any motion under this statute, but brought the present writ of error, claiming a reversal of the court's order allowing the defendant's claim. The defendants' plea to the jurisdiction and in abatement is based upon the claim that a proceeding by motion in the superior court under the statute is the plaintiffs' only remedy.

This being an independent action brought to this court for the purpose of revising errors which are alleged to be apparent on the record of the superior court in the receivership case, the plaintiffs have no case unless it appears on that record as it now stands, with no finding by the trial judge, that some error of law was committed by the court affecting the judgment of which complaint is made. Had there been no request for a finding, it would hardly be claimed that this writ of error would not lie to correct any error so appearing. The writ is a common-law remedy, recognized by our statute, which has always existed in this state, and one which is not taken away by the statute of appeals. The process by appeal is a more extensive, expeditious, and adequate remedy, and is calculated to reach errors which may not be reached by a writ of error, as well as those which may be reached by such writ, but, as to the latter, it does not supersede the remedy by writ of error. As to errors apparent on the record, using that word in its strict sense, the two remedies coexist. This being so, it would be a strange result if the attempt to procure a finding showing errors of the trial court which do not appear upon the record would (should the trial judge die without making such finding) prevent a party from proceeding by writ of error to obtain a revision of errors which appear upon the record. It is apparent that such a result was not intended by the act (Pub. Acts 1905, c. 62) upon which the defendants rely. Its purpose manifestly was to afford a remedy in cases where a finding is necessary to disclose upon the record the claimed errors which it is proposed to have corrected by appeal. Prior to the statute the death or inability of the Judge to make such finding left the party remediless in such a case. Etchells v. Wainwrlght, 76 Conn. 534, 540, 57 Atl. 121. There was in such a case no way to get before ...