MacDonald v. Newman

• Decision Date: 27 January 1931
• Citation: 112 Conn. 596,153 A. 296
• Court: Connecticut Supreme Court
• Parties: MacDONALD v. NEWMAN et al.

153 A. 296

112 Conn. 596

MacDONALD v. NEWMAN et al.

Supreme Court of Errors of Connecticut.

January 27, 1931

Action by Hugh Glenn MacDonald against Samuel S. Newman, one Cohen and others. Judgment for plaintiff, and defendant last named appeals. On plaintiff's motion to erase appeal from docket.

Motion denied.

M Joseph Blumenfeld, of Hartford, for appellant Cohen.

Clayton L. Klein, of Waterbury, for appellee.

Argued before MAHTBIE, HAINES, HINMAN, BANKS, and AVERY, JJ.

MALTBIE, J.

It appears of record that on June 11, 1930, the appellee recovered judgment against the appellant for $10,000 for personal injuries suffered by reason of the latter's alleged negligence in the operation of a motor vehicle. On June 20, 1930, the appellant moved for an extension of time in which to file a draft finding for the period of ten days beyond the two weeks allowed by the statute for filing a request for a finding, alleging as cause that the court stenographer had been unable to furnish him with a transcript of the testimony, and on the next day this motion was granted. This brought the matter into the summer months during which all proceedings to make or complete the record were suspended. General Statutes 1918, § 5826. No request for a finding was filed, but by a motion filed on August 27, 1930, the appellant sought an extension of time until September 3, 1930, in which to take an appeal, alleging that any errors he desired to pursue did not require a finding, and hence he wished to save the time, effort, and money which would be required in making one and certifying the evidence which would be necessary if he took proceedings under the extension which had been granted him. This motion the trial court granted the same day. On September 3, 1930, the appellant filed his appeal, and it was allowed. On September 17, 1930, the appellee filed a motion that an execution be ordered to issue, to which the appellant filed a reply. At first the trial judge denied this motion, but, having permitted a reargument, he granted it, and also revoked the extension of time in which to take the appeal granted by him on August 27th.

In this court the appellee filed a motion to erase the appeal on the ground that the extension of the time in which to take it was granted without notice to him and without authority, and that it had been revoked. A motion to erase is not " the proper method to take advantage of the failure of a party to seasonably appeal." Cramer v. Reeb, 89 Conn. 667, 670, 96 A. 154, 155; and the motion must be denied. The appellee also filed a plea in abatement in which he alleged the facts of record we have stated, that no hearing was had upon the motion to extend the time to appeal, nor was counsel notified of it, and that no cause was shown, and also certain irrelevant facts which may be disregarded. To this plea the appellant has demurred.

In so far as the attempt of the trial court to revoke the extension of time to take the appeal is concerned, it is sufficient to point out that the appeal had been taken before that attempt was made, so that, at that time, the case has been removed to this court, and any further proceedings with reference to the matter would of necessity have to be...