Schmidt v. Schaub

• Decision Date: 21 June 1932
• Citation: 115 Conn. 208,161 A. 98
• Court: Connecticut Supreme Court
• Parties: SCHMIDT v. SCHAUB.

161 A. 98

115 Conn. 208

SCHMIDT v. SCHAUB.

Supreme Court of Errors of Connecticut.

June 21, 1932

Appeal from Superior Court, Middlesex County; Frederick M. Peasley Judge.

Action by Marie Schmidt against August Schaub, administrator of the estate of Caspar Schmidt, deceased, to recover moneys alleged loaned and for compensation for services rendered to defendant's decedent. From a verdict for plaintiff on two counts only plaintiff appeals.

Error and new trial ordered.

Cornelius J. Danaber, of Meriden, and Israel Poliner, of Middletown, for appellant.

Thomas C. Flood, of Portland, and Carl F. Anderson, of Middletown (Paul S. Maier, of Middletown, on the brief), for appellee.

HINMAN, J.

The plaintiff's motion to set aside the verdict was denied November 20, 1931; judgment on the verdict was entered on the same date; on December 2d, the plaintiff filed an appeal from the judgment and assigned, only, error in denying the motion. The appellee asserts that the appeal is ineffective because taken from the judgment instead of specifically from the denial of the motion to set aside the verdict. The present Rules for Appellate Procedure (Practice Book, insert, p. 306) provide in section 2 that the party appealing from a decision upon a motion to set aside a verdict shall file his appeal within two weeks from that decision, also that an appeal from a judgment shall be filed within two weeks of rendition thereof. Failure to file an appeal within the time limited after decision on the motion would preclude review of that decision under an appeal from the judgment rendered taken beyond the time limited for an appeal from the decision on the motion. However, when, as in the present instance, judgment is entered and appeal therefrom taken within two weeks following the decision on the motion, the purposes of the rule are served and its requirements sufficiently answered. Indeed, the appeal, while in form one from the judgment, since it is limited by the assignment of error under it to a review of the decision on the motion, may fairly be regarded as, in effect, an appeal from that decision only.

The complaint is in four counts: the first three alleging unpaid loans of $200, $1,000, and $6000, respectively, to the defendant's decedent. Caspar Schmidt, presentation of claims therefor to the defendant administrator, and disallowance. The fourth count alleges that in November 1927, the plaintiff at the request of Schmidt relinquished a profitable position in New York City and entered his service at Middletown under an agreement that he would pay her $50 monthly and make a will devising to her a certain piece of land in Middletown worth $12,000; that, she performed all the services requested by Schmid to his satisfaction until his death, April 18, 1931, but he failed to make the monthly payments of $50 each from June 1, 1929, and no will made by him has been found; that the reasonable value of the services is $12,000, is unpaid, and a claim therefor has been presented and disallowed. The answer denies all the allegations except the appointment of the defendant as administrator and the presentation and disallowance of the claims. The jury returned a verdict for the plaintiff to recover only on the second count ($1,065.21) and $975 on the fourth count, which verdict the plaintiff moved to set aside as against the law and the evidence. The only error assigned is the denial of this motion.

Liability for the $1,000 loan alleged in the second count was admitted by the defendant on the trial; it was conceded in argument here that the amount of the verdict on the fourth count represented such of the monthly payments as the jury found to have been unpaid, to the exclusion of any allowance on account of the claimed agreement to make additional compensation by will. It is of this omission and of the failure to allow recovery for the $200 and $600 alleged loans under the first and third counts that the appellant complains.

The plaintiff and...