Murphy v. Elms Hotel

• Decision Date: 08 April 1926
• Court: Connecticut Supreme Court
• Parties: MURPHY v. ELMS HOTEL ET AL.

133 A. 106

104 Conn. 351

MURPHY v. ELMS HOTEL ET AL.

Supreme Court of Errors of Connecticut.

April 8, 1926

Appeal from Superior Court, Fairfield County; John W. Banks, Judge.

Clifford B. Wilson, of Bridgeport, for appellant.

William B. Ely, of New Haven, for appellees.

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

WHEELER, C.J.

The motion to dismiss was based upon the taking of the appeal on June 30th, when the finding and award was made on June 16th. General Statutes, § 5366, as amended by Public Acts 1919, c. 142, § 14, provides for the procedure upon an appeal from a finding and award by the commissioner, and limits the time within which either party may take his appeal to 10 days after entry of such finding. Undoubtedly, the General Assembly intended this provision to mean 10 days after notice to the party of the entry of such finding otherwise, in the event of the failure of the commissioner to notify the party of his finding and award within the 10-day period, the taking of the appeal would be fruitless.

In Orcutt's Appeal from Probate, 24 A. 276, 278, 61 Conn 378, 384, the question for decision was whether an appeal from probate, taken and allowed after the time limited by statute for doing so had passed, was void or merely voidable. We there observed:

" But it may be said that, in limiting the time in which an appeal from probate may be allowed, the statute was intended primarily to limit the power of the court to grant or allow an appeal. If this were true, of course no appeal could be taken by a party against whom the time had run. In such a case the cause as to that party would be one which was not appealable. We do not think, however, that this is the true construction of the statute. The statute prescribes that an appeal shall be taken within a certain time, but no words are used which necessarily prohibit the court of probate from granting an appeal after the limit has expired." Leavenworth v. Marshall, 19 Conn. 1; Brewster v Shelton, 24 Conn. 140; Hiscox's Appeal from Probate, 29 Conn. 561.

A similar construction must be given to the appeal allowed in this case. The failure to take the appeal within the 10-day period did not make the appeal void, but merely voidable. Objection to an appeal taken after the time for taking an appeal has expired under our practice must be taken by plea in abatement, and not by motion to dismiss or erase. As early as Denslow v. Moore, 2 Day, 12, in disposing of an objection of this character, we used this language:

" Whether the appeal was taken within the time limited by the statute was a question of fact; and if relied on, should have been pleaded in abatement."

From that time to the present the plea in abatement has been the approved method of attacking an irregularity of this kind.

We held that the plea in abatement was the appropriate remedy for the failure to bring a writ of error within the time limited by statute, Paiwich v. Krieswalis, 115 A. 720, 97 Conn. 123, 126, 128; for the failure to seasonably file an appeal under General Statutes, § 5823, New York, N.H. & H. R. Co. v. Illy, 65 A. 965, 79 Conn. 526; Sisk v. Meagher, 73 A. 785, 82 Conn. 376, and for the irregularity in taking the appeal to the wrong term of court, State v. Caplan, 84 A. 280, 85 Conn. 618; Farnham v. Lewis, 75 A. 625, 83 Conn. 134; Cramer v. Reeb, 96 A. 154, 89 Conn. 667; Forbes v. Town of Orange, ...