Rommell v. Walsh

• Decision Date: 16 July 1940
• Citation: 15 A.2d 6,127 Conn. 16
• Court: Connecticut Supreme Court
• Parties: ROMMELL et al. v. WALSH et al.

15 A.2d 6

127 Conn. 16

ROMMELL et al. v. WALSH et al.

Supreme Court of Errors of Connecticut.

July 16, 1940

Appeal from Superior Court, Hartford County.

Action in nature of appeal from order of Zoning Board of Appeals of the City of Hartford by J. Wesley Rommell and others against Philip J. Walsh and others. From a judgment sustaining the appeal and setting aside the order the defendants appeal.

Motion to dismiss appeal denied.

Where judgment was entered sustaining plaintiff property owners' appeal from order of defendant zoning board of appeals, board had right to join in defendant property owners' appeal to Supreme Court of Errors.

Joseph P. Cooney, W. Arthur Countryman, Jr., and John P. Harbison, all of Hartford, for plaintiffs.

John M. Bailey and Harold Borden, both of Hartford, for defendants.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.

MALTBIE, Chief Justice.

This is an appeal from the zoning board of appeals of the city of Hartford, in which the members of that board as constituting it and certain property owners were summoned to appear before the Superior Court to answer the complaint of the plaintiffs other property owners claiming to be aggrieved by the order of the board. Appearances were entered by an attorney for the defendant property owners and by the corporation counsel and his assistant for the members of the zoning board. The attorneys, in behalf of the parties they respectively represent, filed separate answers. On July 2, 1939, the trial court rendered judgment sustaining the appeal and directing that the order of the zoning board be set aside. On August 4, 1939, a notice of intention to appeal was filed under § 368 of the Practice Book, by ‘ The Defendants,’ signed only by the attorney who had appeared for the defendant property owners. On September 15, 1939, an appeal was filed by ‘ The Defendants' signed by the attorneys both for the property owners and the zoning board. Subsequently they joined in a joint request for a finding, and, after a counterfinding had been filed by the plaintiffs and the finding had been made, joined in assignments of error. In this court the plaintiffs have filed three motions, one to dismiss the appeal as a whole for failure to prosecute it with proper diligence, the second, to dismiss the appeal of the zoning board because no notice of intention to appeal was filed by it, and the third, to dismiss the appeal of the defendants named as constituting the zoning board on the ground that the board and its members had no right to appeal and that the subject-matter of the litigation can be determined between the plaintiffs and the defendant property owners, so that the board is not a necessary party to the proceeding.

Upon the face of the papers there does not seem to be such improper delay in prosecuting the appeal as to require that it be dismissed on that ground and the motion for such dismissal is denied, without prejudice, however, to its renewal at the next term of court should steps not be taken to perfect the appeal so that it may be disposed of at that time. Counsel who signed the notice of the intention to appeal for ‘ the defendants' had not entered a formal appearance for the board. The rule concerning appearances (Practice Book 1934, p. 32, § 47) is ‘ a rule of convenience, and as such should be observed,’ but it does not preclude recognition by the court of the authority of an attorney who has not formally entered in accordance with its terms. Schoonmaker v. Albertson & Douglass Machine Co., 51 Conn. 387, 393. The effect of the notice of intention to appeal, filed under the provisions of Practice Book 1934, p. 111, § 368 is, in the absence of an order of the court permitting an execution to issue, to hold further proceedings in the case in abeyance during the summer months. Practice Book 1934, p. 111, § 366; Joseph v. Donovan, 118 Conn. 80, 81, note, 171 A. 24. In such a case as this, notice of appeal by one of the defendants would be as effectual to stay proceedings as a notice filed by both. Within the period permitted by the rules after the filing of the notice, both parties joined in an appeal, a request for a finding, and an assignment of errors, without objection by the plaintiffs, until some six weeks after the filing of the last paper, when the motion to dismiss the appeal as to the board was filed. If, under these circumstances, counsel who had entered for the defendant property owners was authorized to file a notice of intention to appeal for the board as well as for them, we could not hold that the appeal taken by the board was not before us. In the absence of any allegation or proof of a lack of such authority, the motion to dismiss the appeal as regards the board must be denied.

The other motion, asserting that the zoning board or its members had no right to appeal to this court, presents a question which we have never had occasion to determine. The practice in this state, with reference to appeals from administrative boards, has varied. Our reported decisions on such appeals, too numerous to cite, disclose, in those types of such appeals most commonly presented to us, a situation which may be summed up as follows: The appeals of this nature which were the earliest to come before us with any frequency were those taken from the decisions of county commissioners with respect to licenses to sell intoxicating liquor, and the county commissioners frequently appeared by their attorney as defendants in this court, although sometimes the matter was left to be presented only by the parties having a direct interest in the litigation. The former railroad commissioners did not ordinarily appear; usually the parties directly interested litigated the controversy; but in some cases, as where the question was as to the location of street railway tracks in the streets of a municipality, they sometimes appeared, evidently as representing the public interests involved. When the public utilities commission succeeded the railroad commissioners it did not appear as defendant in the earlier appeals taken from its orders, but in the last few years it has consistently done so. The liquor control commission has uniformly appeared as defendant on appeals taken from its decisions, and in one instance has itself taken an appeal to this court. In appeals from medical examining boards the boards have usually appeared as defendants. In appeals from the decisions of individual public officers, such as those determining whether to approve a location for a gasoline station, or whether another officer should be removed from office, the officer acting in the matter has usually appeared as a defendant. In appeals from zoning boards the boards have in most instances appeared as party defendants, and in four instances they have themselves taken appeals to this court; in a few cases both the board and the municipality appeared as defendants; in some cases the municipality has alone appeared; in others the parties directly interested in the subject-matter of the litigation have been the only ones to appear. In proceedings for the assessment of benefits and damages, the board making the assessment or award has at times appeared; in two instances it has taken an appeal to this court; in one instance both the board and the municipality appeared as defendants; but in the great majority of cases the municipality has been the party to appear before us. In appeals from boards of relief the municipality is the party defendant, but this is referable to the statute which directs that upon such an appeal the municipality shall be cited in. General Statutes, § 1200.

In some appeals from administrative boards the...