Lusas v. St. Patrick's Roman Catholic Church Corp.

• Decision Date: 07 February 1939
• Citation: 4 A.2d 333,125 Conn. 206
• Parties: LUSAS v. ST. PATRICK'S ROMAN CATHOLIC CHURCH CORPORATION.
• Court: Connecticut Supreme Court

4 A.2d 333

125 Conn. 206

LUSAS v. ST. PATRICK'S ROMAN CATHOLIC CHURCH CORPORATION.

Supreme Court of Errors of Connecticut.

February 7, 1939

Appeal from Court of Common Pleas, District of Waterbury, New Haven County; Miles F. McNiff, Judge.

Action by Petronella Lusas against St. Patrick's Roman Catholic Church Corporation claiming that a withdrawal filed in an action for damages for personal injuries brought by the plaintiff against the defendant be erased and that she be allowed a new trial, brought to the court of common pleas and tried to the court. From a judgment for the defendant plaintiff appeals.

No error.

Robert J. Woodruff and Edward S. Snyder, both of New Haven, for appellant.

John S. Monagan, of Waterbury, for appellee.

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

AVERY Judge.

The plaintiff brought an action against the defendant returnable to the Court of Common Pleas for the Judicial District of Waterbury. Thereafter, the pleadings in the case were closed and on November 25, 1936, the cause was ready for trial before a jury. On that day, a withdrawal of the action was filed and signed by the attorneys for both the plaintiff and defendant. Thereafter, on January 2, 1937, the plaintiff filed a motion to restore the cause to the docket which was granted by the court on February 2, 1937. The defendant appealed, Lusas v. St. Patrick's Roman Catholic Church Corporation, 123 Conn. 166, 193 A. 204 111 A.L.R. 763, and we held that inasmuch as the term of the Court of Common Pleas expired December 18, 1936, the action of that court in restoring the cause to the docket at a subsequent date was erroneous, and remanded the cause for further proceedings in accordance with law. Subsequently the plaintiff brought the present action seeking to have the withdrawal set aside and a new trial granted. Without any question being raised as to the form of the proceeding, the case was tried in the Court of Common Pleas and judgment rendered in favor of the defendant, from which the plaintiff has appealed. In this appeal the plaintiff asserts that the subordinate facts found by the trial court do not justify its conclusion that the plaintiff assented to the withdrawal of the original case. The plaintiff also assigns error in certain rulings on evidence.

The plaintiff has asked for numerous corrections and additions to the finding; but, as the evidence of the case is not made a part of the record, there is nothing before this court to furnish a basis for a correction of the finding and we must consider the case upon the facts found by the trial court. State v. Jones, 124 Conn. 664, 665, 2 A.2d 374; Livingstone v. New Haven, 125 Conn. 123, 3 A.2d 836. From the finding it appears that Mrs. Lusas met Mr. Monzani, her attorney at the time, on the morning of the day of the trial shortly after 8 o'clock, at his office. She was accompanied by her two sons. The lawyer called Mrs. Lusas and her two sons into his private office for an interview. A court interpreter was also present who understood her language. The attorney there informed her that the best thing to do was to withdraw the case. Subsequently the plaintiff went to the county building with one of her sons and the interpreter. There the plaintiff wept and was hysterical and asserted she wanted the case to go to trial. Her attorney informed her that he could not prove her case and that the insurance company representing the defendant would not pay anything in settlement and that if the case were withdrawn it would be ended. Finally she told him to withdraw the case and the withdrawal was signed in her presence. It is generally recognized that the general authority of an attorney does not empower him, unless expressly authorized by his client, to discontinue or withdraw a case where the ultimate rights of the parties will be thereby terminated. 7 C.J.S., Attorney and Client, p. 908, § 87. In such a matter the party has control of the litigation. Erickson v. Foote, 112 Conn. 662, 666, 153 A. 853. The finding of the court, however, by which we are bound, amply supports the contention of the defendant that the attorney was authorized by the plaintiff to sign and file the withdrawal. The conclusion of the trial court that the plaintiff assented thereto cannot be successfully attacked.

In the former appeal the question presented was the action of the trial court in restoring the case to the docket. In a memorandum the judge gave as the reason for his action that ‘ a real consent to...