Marks v. Dorkin

• Citation: 104 Conn. 660,133 A. 915
• Court: Connecticut Supreme Court
• Decision Date: 03 July 1926
• Parties: MARKS v. DORKIN.

133 A. 915

104 Conn. 660

MARKS v. DORKIN.

Supreme Court of Errors of Connecticut.

July 3, 1926

Appeal from Superior Court, New Haven County; Alfred C. Baldwin Judge.

Action by Irving Marks against David Dorkin to recover damages for alleged negligence. Judgment for defendant, and plaintiff appeals, and files motion to rectify the appeal. Motion denied.

Charles S. Hamilton, of New Haven, and Morris M. Wilder, of Meriden for appellant.

David E. FitzGerald and William L. Hadden, both of New Haven, for appellee.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

WHEELER, C.J.

This was an appeal from the judgment rendered upon the verdict of the jury in favor of the defendant for errors claimed to have occurred in the trial in the charge as made, in the refusal to charge as requested, in both the admission of, and the exclusion of, evidence, in an interlocutory ruling, and in refusing to set aside the verdict. The plaintiff duly filed a motion to rectify the appeal, based upon General Statutes, § 5836. It is not submitted to us in accordance with the requirements of this section of the statutes. Before pointing out the specific irregularities in this submission, we think it desirable to restate the true function of a finding in a trial to the jury; the difference between a finding in a case tried to the court and one tried to the jury; and the only two methods provided by our statutes for securing a correction of a finding in a trial to the jury. the finding in a case tried to the jury is not in the strict sense a " finding," since the jury determine the facts established by the evidence, and the finding as made by the court is a fair narrative of what each of the parties offered evidence and claimed to have proved either by direct evidence or by legitimate inferences, of the occurrences of the trial, of the rulings and claims of law made, and the instruction given the jury by the court. In a trial to the court the facts found are the court's best judgment of what the entire evidence establishes. If they stand uncorrected, they settle the ultimate facts. In the case tried to the jury the finding as made does not establish the facts. It is merely a fair statement of the facts claimed to have been proven by each party, and " made with sufficient fullness to present the questions sought to be raised by the appeal." State v. Reynolds, 95 Conn. 186, 190, 110 A. 844; Sansona v. Lararia, 88 Conn. 136, 90 A. 28; State v. Gargano, 99 Conn. 103, 106, 121 A. 657; Elliott v. New York, N.H. & H. R. Co., 83 Conn. 320, 327, 76 A. 298.

There is also this limitation upon an attempt to correct a finding. It will be corrected " only when it is reasonably necessary to fairly present a claimed error in law made by the court." State v. Gargano, supra, at page 106 (121 A. 658). Three remedies are open for the correction of the finding in a trial to the court; section 5830, by way of a motion to correct with exceptions annexed, or by section 5832 by filing a copy of the evidence and rulings with the trial court, together with a motion that the same be made a part of the record, or by section 5836 by application for the rectification of the appeal by this court. The latter method is, as we said in State v. Kelly, 100 Conn. 505, at page 507, 124 A. 37, " particularly adapted to corrections in the appeal record requiring the use of evidence outside the record," and should be used for this purpose alone and not as an alternative method to section 5830. Two remedies are open in the trial to the jury for the correction of the finding, that of section 5829 (first enacted in 1913) by way of the motion to correct and exceptions, and that of section 5836. Section 5829 reads:

" Whenever in a case tried to the jury a finding is filed under section 5824 either party may file a motion to correct or to add to such finding, or may file exceptions to such finding, and may appeal from any such finding or refusal to find as corrected in the manner provided in section 5830."

The Legislature obviously intended to have the procedure in trials to the court and jury outlined in these two sections 5829 and 5830 alike, and to carry out that intent we construe the " or" before " may file exceptions" to read " and." The remedy provided by section 5829 is available when facts have been improperly found from the evidence and included in the finding, or improperly omitted from it. It is the only method of correction of a finding in these particulars. Its procedure is that provided in the trial of cases to the court under section 5830.

The remedy provided by section 5836 by application to this court to rectify the appeal is available when the finding does not correctly state the events or occurrences of the trial, and it is necessary to go outside the record for their proof. State v. Kelly, 100 Conn. 505, 506, 507, 124 A. 37; Bernier v. Woodstock, 88 Conn. 558, 561, 92 A. 160. This method requires the applicant (1) to give the adverse party notice of the intended application in writing stating the alterations required; (2) to request the trial court to make such alterations prior to the filing of the application in this court; (3) to establish the allegations of the application by depositions. (4) If the...