Neilson v. Perkins

Citation86 Conn. 425,85 A. 686
PartiesNEILSON v. PERKINS.
Decision Date15 January 1913
CourtSupreme Court of Connecticut

Wheeler, J., dissenting.

Appeal from Superior Court, Hartford County; Joel H. Reed, Judge.

Action by Otto Neilson against Daniel C. Perkins. Judgment for defendant in the city court of Hartford, and plaintiff appealed to the superior court. From an order denying his motion to erase the case from the superior court docket for want of jurisdiction, defendant appeals. Error.

Action to recover damages for injuries alleged to have been caused by the negligence of the defendant and his servants, brought to the city court of the city of Hartford where trial was had to the jury before Bullard, J., and a verdict and judgment was rendered for the defendant. From that judgment an appeal was taken by the plaintiff to the superior court, and a motion was there made by the defendant that the case be erased from the docket for want of jurisdiction, which motion was denied by the court (Reed, J.), and the case was afterwards tried to the jury (Williams, J.), and the plaintiff had a verdict, upon which judgment was rendered. The defendant appeals, assigning the court's denial of the motion to erase as error.

A. Storrs Campbell, of Hartford, for appellant.

Andrew J. Broughel and Birdsey E. Case, both of Hartford, for appellee.

THAYER, J. The only question in this case is whether the superior court erred in refusing to erase the case from the docket. It is an appeal from the city court of Hartford.

The question is whether at the time the city court allowed the appeal the superior court had jurisdiction of the case. Section 10 of an act concerning the city court of Hartford, approved April 17, 1905 (Special Acts 1905, p. 600), provides that any party aggrieved by a final judgment or decree of that court in any cause in which the matter in demand exceeds $500 may appeal therefrom to the superior court. This provision was in force when the present action was commenced. During the pendency of the action, and before the judgment appealed from had been rendered by the city court, said section 10 was repealed by an act approved August 29, 1911, which took effect from its passage. Special Acts 1911, p. 500. The judgment was rendered in the city court, and the appeal therefrom was taken in the month of November following. While the repealed provision had life, the superior court and the city court of Hartford had original concurrent jurisdiction of a large number of cases, namely, those wherein the matter in demand exceeded $1,000, and the parties or one of them resided in the city of Hartford. The superior court also, by virtue of the act in question, had appellate jurisdiction of the same cases. It also had appellate jurisdiction of similar cases wherein the matter in demand lay between $500 and $1,000, in which cases the court of common pleas also had original jurisdiction concurrent with the city court. A party was thus able to bring his action in these cases in the city court and have a jury trial, and, if unsuccessful, there appeal to the superior court and have another jury trial there, as was done in this case. An appeal in all these cases for errors in law is allowed to this court from the judgments of the city court of Hartford, the same as from the superior court and the court of common pleas. There was therefore no necessity for a second trial to either court or jury of the questions of fact in these cases. The manifest intent of the repealing statute was to take from the superior court this appellate jurisdiction, and that was its effect.

The superior court held that, as this case was pending in the city court at the time of the repeal, it was saved from its effect by section 1 of the General Statutes, which provides: "That the passage or repeal of an act shall not affect any action then pending." This provision is merely declaratory of a rule of construction. Rowen v. N. Y., N. H. & H. R. Co., 59 Conn. 364, 367, 21 Atl. 1073. We have held in several cases that, where it is clear that the Legislature intended that a creating or repealing act relating to procedure should affect pending cases, the act was to be so construed, notwithstanding the provision in section 1 of the General Statutes referred to; that being a mere legislative enactment, the provision must yield to the later expression of the legislative will. Hubbard v. N. Y., N. H. & H. R. Co., 70 Conn. 563, 565, 40 Atl. 533; Atwood v. Buckingham, 78 Conn. 423, 426, 62 Atl. 616; Lew v. Bray, 81 Conn. 213, 217, 70 Atl. 628. Section 1 of the General Statutes does not preserve or attempt to preserve to parties, as against a repealing statute, rights which they possessed under the statute repealed. It is one of the sections of chapter 1 of the title "construction of statutes," which is the first title of the General Statutes. It simply lays down a rule of construction to be adopted when the repealing statute does not make clear the legislative intent that it shall affect pending cases. This is the effect of the construction which we have already put upon it. There can be no doubt that, in the absence of this section, the repealing statute in the present case would be held to affect pending cases.

Parties have no vested right to an appeal. The rule is that if even after an appeal has been taken, the statute giving the appellate court Jurisdiction of it is repealed, and there is no saving clause, the case falls with the statute. Insurance Co. v. Ritchie, 72 U. S. (5 Wall.) 541, 544, 18 L. Ed. 540. There is no saving clause in the statute under review. It is an express repeal of the statute allowing an appeal. It in express terms says that it shall take effect from its passage. At the time of this repeal, no appeal had been taken in the case before us. We think that it is not a case for the application of the rule of construction provided in section 1 of the General Statutes, and that it should have been erased from the docket of the superior court.

There is error.

WHEELER, J. (dissenting). The case was taken to the city court of Hartford and, from the judgment there rendered, an appeal taken to the superior court, where a motion to erase the case from the docket was denied. The sole question on the appeal to this court from the judgment of the superior court is whether that court erred in refusing to erase the case from the docket. Section 10 of an act concerning the city court of Hartford (Special Acts 1905, p. 600) provides that any party, aggrieved by a final judgment or decree of that court in any cause in which the matter in demand exceeds $500, may appeal therefrom to the superior court. This provision was in force when the present action was commenced, During its pendency, and before judgment in the city court, said section 10 was repealed (Special Acts 1911, p. 500) as follows:

"Section 1. Section ten of an act concerning the city court of Hartford, approved April 17, 1905, being section two hundred and three of the compiled charter of the city of Hartford is hereby repealed.

"Sec. 2. This act shall take effect from its passage."

Before the passage of this act, a litigant was thus able to bring his action in these cases in the city court and have a trial, and, if unsuccessful, then appeal to the superior court and there have another trial on the facts, as was done in this case. The double trial upon issues of fact and law was unduly burdensome to litigants and wasteful to the public. The manifest intent of the repealing act was to take from the superior court this appellate jurisdiction. The superior court refused to grant the motion to erase, undoubtedly because it was of opinion the repealing statute did not act retrospectively as well as prospectively, and apply to pending cases. "The presumption is that statutes are intended to operate prospectively. They should never be construed as having a retrospective effect unless their terms show clearly and unmistakably a legislative intention they should so operate." Humphrey v. Gerard, 83 Conn. 346, 352, 77 Atl. 65, 67; Smith v. Lyon, 44 Conn. 175, 178.

The majority opinion would seem to hold that this general presumption does not hold in respect to statutes relating to procedure and remedy, and that such statutes apply to pending cases and cases to be brought alike. Some support is found for this contention in Hine v. Belden, 27 Conn. 384. But the rule adopted in Perkins v. Perkins, 7 Conn. 558, 563, 18 Am. Dec. 120; Thames Mfg. Co. v. Lathrop et al., 7 Conn. 550, and Skinner V. Watson, 35 Conn. 124, was the rule of construction of this jurisdiction before the passage of G. S. § 1. In Skinner v. Watson we considered the effect upon a pending case of an act changing the basis of costs awarded, and held that the act did not apply. We there said: "It seems, therefore, to be the settled law of this state that a statute is not to be so construed as to have a retrospective effect, unless it appears that such was the manifest intention of the Legislature. We are not satisfied that the Legislature intended that the statute now before us should have such an effect * *...

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