Sackett v. Carroll

• Decision Date: 08 January 1908
• Citation: 80 Conn. 374,68 A. 442
• Court: Connecticut Supreme Court
• Parties: SACKETT v. CARROLL.

68 A. 442

80 Conn. 374

SACKETT

v. CARROLL.

Supreme Court of Errors of Connecticut.

Jan. 8, 1908.

Appeal from District Court of Waterbury; George H. Cowell, Judge.

Action by Walter Sackett against Patrick H. Carroll to recover money alleged to have been fraudulently appropriated by defendant. There was a verdict and judgment for defendant; and plaintiff's motion to set the verdict aside as against the evidence, having been denied, plaintiff appeals. Affirmed.

Charles G. Root, for appellant. James E. Russell and John O'Neill, for appellee.

HALL, J. The following is the substance of the complaint in this action: The defendant, a real estate broker, sold for the plaintiff to a Mrs. Pickett certain real estate upon commission. He represented that he had sold it for $12,500, and, relying upon the truth of such statement, the plaintiff executed a deed of the property to Mrs. Pickett. The defendant accounted to the plaintiff for said sum, retaining therefrom the sum of $200 as his commission. In fact the defendant sold the property to Mrs. Pickett for $13,000, and fraudulently appropriated to himself the $500 difference between said actual, and the represented, selling price. The defendant's answer in effect is that he did not sell the property as the plaintiff's agent, but purchased it himself of the plaintiff for $12,300, and sold it to Mrs. Pickett for $13,000, and that the difference between the two sums belonged to him as his profit. The jury returned a verdict for the defendant, and the trial court denied the plaintiff's motion to set it aside as against the evidence.

The assigned reasons of appeal to this court are that the trial court erred in making in its charge to the jury certain statements recited in the appeal, and in denying the plaintiff's motion to set aside the verdict. It would be unprofitable to repeat here the portions of the charge complained of. They contain no instructions to the jury upon legal questions, but are merely statements of the claims of the respective parties, and comments by the court upon the evidence, which do not appear to have been improper.

Defendant's counsel seem to claim in their brief, and for the first time, that we ought not to entertain the plaintiff's appeal from the denial of the motion to set aside the verdict, because, as seems to be the fact, it was not taken "within six days after the entry of judgment on the verdict," as required by section 805, Gen. St. 1902. This claim cannot be supported. The irregularity complained of is not jurisdictional. It is at the most but a defect in the process of appeal, which does not render it void, and which could only have been taken advantage of by plea in abatement. Spencer v. Broughton, 77 Conn. 38-41, 58 Atl. 236; Stillman v. Thompson, 80 Conn. 192, 67 Atl. 528; In re Application of the Shelton St. Ry. Co., 70 Conn. 329, 39 Atl. 446. Although, in the absence of a plea in abatement, the plaintiff is entitled to have his appeal from the refusal to set aside the verdict considered, yet, upon...