MacArthur v. Cannon

• Decision Date: 27 January 1967
• Docket Number: No. CV,CV
• Citation: 4 Conn.Cir.Ct. 208,229 A.2d 372
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: , 4 UCC Rep.Serv. 199 Robert S. MacARTHUR v. James E. CANNON. 13-6506-2276.

Page 372

229 A.2d 372

4 Conn.Cir.Ct. 208, 4 UCC Rep.Serv. 199

Robert S. MacARTHUR v. James E. CANNON.

No. CV 13-6506-2276.

Circuit Court of Connecticut, Appellate Division.

Jan. 27, 1967.

L. Paul Sullivan, of Hartford, for appellant (defendant).

Michael Schless, of Hartford, for appellee (plaintiff).

On Motion to Dismiss Appeal ¹

PRUYN, Judge.

The plaintiff has filed a motion to dismiss the defendant's appeal on the ground that the defendant did not file his brief within the time allowed by the rules of practice and had not requested or obtained an extension of time.

Judgment for the plaintiff was entered on May 10, 1966; the defendant's appeal was filed May 23; the draft finding, pursuant to an extension of time granted by the trial court, was filed on July 11; the plaintiff's counterfinding was filed on August 10; the trial court's finding was filed on September 12; the defendant's motion to correct the finding was filed on September 20 and denied by the trial court on September 26; the defendant's assignment of errors was filed on October 4; the plaintiff's brief was filed on October 18; the plaintiff's motion to dismiss the appeal was filed on October 22; the defendant's brief was filed on October 22; and his objection to the motion to dismiss was filed on October 25. Such is the chronology of the procedural steps taken by the parties as shown by the record on appeal.

The procedure for the taking of appeals from judgments of the Circuit Court to the Appellate Division is regulated by the rules of the Circuit Court adopted pursuant to statutory authority 'for the speedy and inexpensive hearing of such appeals.' General Statutes § 51-265. These rules specify the time limits within which the various appeal papers are to be filed. We need concern ourselves only with the matter of the defendant's brief; all the other appeal papers were filed within the required time limits. 'Briefs of counsel shall be filed within two weeks after the filing of appellant's assignment of errors.' Practice Book § 1015. An extension of time to file may be granted for the filing of any appeal paper if the motion therefor is filed and served before the expiration of the time limit. Practice Book § 954. A motion to dismiss for failure to file papers within the time allowed must be filed within ten days after the expiration of the time limit. Practice Book § 976. In the case before us, the defendant's brief was filed four days late, there was no extension of time requested or granted, and the plaintiff's motion to dismiss was filed within the ten day time limit. 'The appellate panel may * * * dismiss any appeal for * * * failure to file papers within the time allowed * * *.' Practice Book § 976. Thus the sole question before us is whether the appeal should be dismissed upon a timely motion to dismiss for failure to file a brief within the time allowed by the rules of this court.

Upon receiving notice of the filing of the assignment of errors, the appeal is assigned for a hearing; Practice Book § 1012; which in this case was set for November 21, 1966, and was heard on that date. Any delay in filing a brief is not to cause a postponement of the argument or disposition of an appeal. Practice Book § 1017. Although the rules indicate a purpose to permit an appellant to take full advantage of his rights on appeal, and allow a liberal interpretation, a coordinate purpose is to require that the appeal be perfected as soon as possible and without unconscionable delay. Schuhmacher v. Peck, 139 Conn. 426, 428, 94 A.2d 615. 'The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.' Practice Book § 762 (applicable to the Circuit Court by § 1023). In the case before us, the steps taken in taking and perfecting the appeal, upon which the taking of further action depended, were taken expeditiously and within the permitted time limits. The delay of a mere four days in filing the defendant's brief, upon which no further steps were dependent and which was filed on the same day as the motion to dismiss, could not and did not delay the argument of the appeal.

The plaintiff argues that, his motion to dismiss being timely, the court has no discretion but must grant the motion. We are not unaware of the case of Loomis v. Zoning Commission, 144 Conn. 743, 133 A.2d 906, wherein the court, in discussing motions to dismiss for failure to file papers on time and motions to dismiss for failure to prosecute with due diligence, said (p. 746, 133 A.2d p. 908): 'Where a timely motion to dismiss is based merely on the failure to file papers on time, the court has only to decide whether as a fact there was a failure to file papers within the time limited by the rules. But a motion to dismiss for failure to prosecute with proper diligence is addressed to the court's discretion.' The rules of the Supreme Court concerning the filing of briefs differ from those of the Circuit Court. In the Supreme Court, assignment of cases for hearing are not made until all briefs, other than reply briefs, are filed. Practice Book § 711. Nor is there any provision in the Supreme Court rules, similar to the one in the Circuit Court rules, the delay in the filing of a brief shall not cause postponement of the argument. Delay in filing a brief in the Supreme Court may well cause a delay in the assignment of the appeal for hearing. And the rules of the Supreme Court do not provide that the court may dismiss an appeal for failure to file papers on time but merely provide for the procedure for presenting a claim for such dismissal. Practice Book § 697. The rules of appellate procedure of the Supreme Court do not govern the procedure on appeals to the Appellate Division unless they are expressly made applicable. State v. Phillips, 22 Conn.Sup. 353, 354, 1 Conn.Cir. 23, 24, 172 A.2d 923; see Practice Book § 1023.

'The intent of our rules is to facilitate appeals and advance justice.' Ide v. Crown Super Market of New Haven, Inc., 23 Conn.Sup. 253, 255, 1 Conn.Cir. 190, 192, 181 A.2d 258. Technicalities must not be exalted over substance. Lengel v. New Haven Gas Light Co., 142 Conn. 70, 73, 111 A.2d 547. To construe the word 'may' in the first sentence of § 976 of the Practice Book as 'must' would not only do violence to the language and intent of the rules but would also transfer the ultimate control of the prosecution of an appeal from this court to counsel who files a timely motion to dismiss. See Chanosky v. City Building Supply Co., 152 Conn. 449, 452, 208 A.2d 337. Under the particular circumstances of the case before us, the motion to dismiss is in our discretion denied.

In this opinion LEVINE, J., concurred.

KINMONTH, Judge (dissenting).

I cannot agree with the majority opinion, as it negates the purpose of both §§ 976 and 697 of the Practice Book in requiring that a motion to dismiss must be filed within ten days after the ground for dismissal arose.

The right to an appeal is not a constitutional one. It is but a statutory privilege available to one who strictly complies with the statutes and rules on which the privilege is granted. The rules set forth the time period for each step in the appeal. Those periods govern unless there is good cause for modifying them. And the cause which is asserted to be a good one should be explicitly set forth in any motion for an extension filed under § 954 of the Practice Book. Unless the rules are complied with, the ultimate control of the prosecution of appeals would pass from this court into the hands of counsel. Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337.

Defects in appellate procedure are usually not void but voidable and are waived unless taken advantage of by motion to dismiss. If the defendant desired more time in which to file his brief, he had ample time in which to apply for an extension of time. Practice Book § 954. The majority opinion would seem also to negate this rule.

Our appellate rules are similar to the Supreme Court rules and I feel their decisions are applicable. 'Where a timely motion to dismiss is based merely on the failure to file papers on time, the court has only to decide whether as a fact there was a failure to file papers within the time limited by the rules. But a motion to dismiss for failure to prosecute with proper diligence is addressed to the court's discretion.' Loomis v. Zoning Commission, 144 Conn. 743, 746, 133 A.2d 906, 908; Tamarit v. Ottolini, 145 Conn. 586, 589, 145 A.2d 587; State v. Phillips, 24 Conn.Sup. 74, 75, 1 Conn.Cir. 410, 411, 186 A.2d 571.

Section 1017 of the Practice Book has no bearing on the orderly perfection of an appeal but is a procedural matter of the appellate court.

The motion to dismiss should be granted, since the plaintiff's motion was timely. On the Merits

KINMONTH, Judge.

This action was brought by one comaker of a note against the other comaker for contribution of one-half of the face value of the note. The defendant in his answer admitted the note and set up by way of special defense that he received no part of the proceeds of the note and was an accommodation maker. The court found the issues for the plaintiff, and the defendant has appealed, assigning error in the court's refusal to correct the finding and in that the conclusions are not supported by the facts found.

The finding may be summarized as follows: On July 3, 1962, the plaintiff and the defendant made and delivered to Naumkeag Trust Company their note for $3000, payable ninety days from date. This note, discounted, yielded $2958.75, which sum was deposited to the account of Micro-Pat, Inc., with the knowledge of both parties, and was to pay corporate debts, including a debt due the plaintiff in the amount of $2469.44. On July 3, 1962, the defendant was the president and owner of 51 percent of the stock of...