Marsh v. Burhans

• Decision Date: 17 October 1906
• Citation: 64 A. 739,79 Conn. 306
• Court: Connecticut Supreme Court
• Parties: MARSH v. BURHANS.

64 A. 739

79 Conn. 306

MARSH

v. BURHANS.

Supreme Court of Errors of Connecticut.

Oct. 17, 1906.

Appeal from City Court of Hartford; Herbert S. Bullard, Judge.

Action of summary process by Caroline M. Marsh against Hiram M. Burhans. Judgment for plaintiff, and defendant appeals. Motion to erase the case from the docket granted.

George J. Stoner, for plaintiff. Percy S. Bryant, for defendant

HALL, J. On the 3d of April, 1906, the plaintiff brought an action of summary process against the defendant, returnable before the city court of Hartford, in which on April 30th judgment was rendered for the plaintiff. On the 10th of September, 1906, the judge of the city court filed a finding of facts, and on September 19th the defendant's appeal to this court, filed on that day under section 788 of the General Statutes of 1902, was allowed upon his giving the usual appeal bond for costs. Section 788, under the second provision of which, concerning appeal, the defendant claims the right of appeal to this court, as amended by chapter 112 of the Public Acts of 1905, p. 324, provides that "upon the trial of all matters of fact in any cause or action, except summary process, in the superior court, court of common pleas, district court of Waterbury, or any city court, whether to the court or jury, if either party thinks himself aggrieved by the decision of the court upon any question or questions of law arising in the trial he may appeal from the judgment of the court in such cause or action and remove the said question or questions for revision to the Supreme Court of Errors; * * * and when final judgment is rendered in any cause in which a party may be entitled to a writ of error to the Supreme Court of Errors, he may appeal from such judgment to the next term of said court which would have cognizance of a writ of error in the cause." The plaintiff moved to erase the appeal from the docket of this court, upon the ground that the provisions of section 788 did not apply to actions of summary process, and that the defendant's only remedy for the alleged errors of the city court was by writ of error. The questions raised by said motion and by the appeal were argued together. We shall consider the former only.

The action of summary process is a special, statutory remedy to enable landlords to obtain possession of leased premises, without suffering the delay, loss, and expense to which under the common-law actions they might be subjected by tenants wrongfully holding over their terms. 1 Sw. Dig., s. p. 511. "The proceeding was not only intended to be summary, but conclusive." Banks v. Porter, 39 Conn. 308. By section 1078 of the General Statutes of 1902, the action of summary process is made returnable before a justice of the peace. Section 1081 provides that "no appeal shall be allowed from any judgment rendered in any such action." Manifestly the appeal here referred to is that allowed by section 540 of the General Statutes of 1902 from the judgment of a justice of the peace, and by which the case is tried de novo in the appellate court. Under section 817 a writ of error lies from the Judgment of a Justice in an action of summary process to the court of common pleas or to the superior court, but not to the Supreme Court of Errors. By section 1087 the defendant in an action of summary process is allowed but 48 hours after final judgment for filing his bill of exceptions and procuring his writ of error, and is required to give a sufficient bond with surety to the plaintiff to answer for all rents that may accrue during the pendency of the writ of error.

As sustaining his claimed right of appeal to this court from a judgment in an action of summary process, the defendant apparently relies: (1) upon section 1 of...