Spelke v. Shaw

• Decision Date: 07 December 1933
• Citation: 117 Conn. 639,169 A. 787
• Court: Connecticut Supreme Court
• Parties: SPELKE et al. v. SHAW et al.

169 A. 787

117 Conn. 639

SPELKE et al. v. SHAW et al.

Supreme Court of Errors of Connecticut.

December 7, 1933

Appeal from Superior Court, Fairfield County; Frank P. McEvoy Judge.

Action by Abram Spelke and others against William G. Shaw and others to quiet and settle title to real estate, tried to the court. Judgment for plaintiffs, and defendants appeal.

Error and new trial ordered.

AVERY J., dissenting.

Charles S. Hamilton, of New Haven, for appellants.

William H. Comley, of Bridgeport, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HINMAN Judge.

The history of prior litigation concerning the real estate involved in this action was reviewed upon the occasion of the last preceding appearance in this court. Spelke v Shaw, 114 Conn. 272, 155 A. 715, 158 A. 809. See, also, McLoughlin v. Shaw, 93 Conn. 102, 111 A. 62; Shaw v. Spelke, 110 Conn. 208, 147 A. 675. On the former appeal in the present action (Spelke v. Shaw, supra), this court held (page 282 of 114 Conn., 155 A. 715, 158 A. 809, 811) the transfers of the property to the plaintiffs invalid because ultra vires of the trust deed under which the lands were held, but remanded the case for further proceedings to ascertain if the plaintiffs had other interest in the premises, by equitable lien or otherwise. Upon those proceedings it was adjudged that the plaintiffs have an equitable lien to secure payment for sums, amounting to $26,551.92, with interest, advanced by them for the benefit and preservation of the trust real estate, and the judgment to that effect is the subject of the present appeal.

The first four assignments are to the effect that the judgment is erroneous in that it was not rendered before the close of the next term or session of the superior court after that at which the trial was commenced, in violation of section 5409 of the General Statutes, which is quoted in a footnote. ^[1] The facts material to the question so raised, as set forth in the finding, are as follows: The trial was commenced on December 1, 1932, and, after the taking of the oral evidence and introduction of exhibits, the plaintiffs, on December 8th, at the request of the court, filed their claims of law, and, on December 9th, the defendants filed their reply thereto; on December 20th the plaintiffs filed a paper designated as " claims as to the equitable lien," and the defendants filed a reply on December 22d. On February 8, 1933, at the request of the court made in a joint letter addressed to counsel of all parties of record, the plaintiffs furnished to the court detailed claims, based upon the evidence, as to the taxes due, the amounts paid thereon, and the total amount claimed to be due, and, on February 17, 1933, at the request of the court, made in a like joint letter, the plaintiffs furnished a detailed description of the land involved, which description was used in making up the judgment. The trial court held the decision of the case until April 17, 1933, when it was announced by a memorandum of decision. The 1932 term of the superior court in and for Fairfield county began on the third Tuesday (the 16th) of September, 1932, and ended on the fourth Friday (the 23d) of June, 1933. The fall session, as designated by the judges at their June session, 1932, commenced on the 16th day of September, 1932, and ended on the 23d day of December; the winter session commenced on the 30th day of December and ended on the 24th day of March, 1933; and the spring session of the court ran from the 31st day of March to June 23, 1933. It appears from the record, further, that the judgment was dated April 17, 1933; upon a seasonable application the time for taking appeal and filing request for finding and draft-finding was extended to May 11th, and, on May 9th, the defendants filed their appeal and a request for finding, with draft-finding annexed, including in the questions of law to be reviewed that raised by the assignments above mentioned.

Until 1886 the sittings of the superior court in each county were designated only as " terms." " Terms of said court shall be held annually, by one of the judges thereof, at the following times and places." General Statutes, 1875, p. 40, c. 3, § 4. This statute provided for terms in Fairfield county at Bridgeport, for trial of civil causes only, on the third Tuesday of October, the second Tuesday of December, and the first Tuesday of March, and " for the transaction of criminal business, and the trial of such civil causes as may be transferred thereto, by order of the court," on the fourth Tuesday of August, the third Tuesday of October, and the third Tuesday of February. Terms at Danbury were also designated. This statute was superseded by chapter 133 of the Public Acts of 1886, which provided, in § 1, that a term for the transaction of civil business be held in Hartford county on the second Tuesday in October, in Windham county on the first Tuesday in May, and in each of the other counties on a designated Tuesday in September, and that " sessions of said court for the trial of civil causes shall be held at the beginning of each term in said counties respectively, and *** in Fairfield County at Bridgeport on the first Tuesday of December. *** And further sessions may be held at the several places provided by law as is hereinafter provided. The judges of the Superior Court, at their annual meeting, *** shall provide for and fix the time of such additional sessions of said court for the trial of civil causes as may be necessary, at the several places prescribed by law for holding said court, and shall assign the judges to hold said several sessions." Section 4 designated terms for criminal business in the several counties, and section 5 provided that at certain specified " civil terms and sessions" criminal as well as civil business might be transacted. These sections, with minor amendments, became sections 790, 791, and 792 of the General Statutes, Revision of 1888.

In 1897, by chapter 223 of the Public Acts, sections 790 and 791 were repealed and there was substituted definite designation of both terms and sessions in each county; for example, in Fairfield county it was provided that sessions for civil business shall be held at Bridgeport on the first Tuesday in January, the first Tuesday in October, respectively, and at Danbury on the third Tuesday in January. This act became section 452 of the General Statutes 1902, and, in substance, section 5451 of the General Statutes 1918, and section 792 of the Revision of 1888, concerning provision by the judges for additional sessions, was continued as section 454 of the General Statutes 1902, and section 5453 of the General Statutes 1918. No material change was again made until 1929, when chapter 232 of the Public Acts, as to Hartford, New Haven, Fairfield, and New London counties, designated, in section 1, one annual " term" for both criminal and civil business, held on the third Tuesday of September, and provided, in section 3, that " there shall be *** sessions" held in each of these counties " at such times and places and for such duration of time, as shall be fixed and determined by the judges of the superior court at their annual meeting." The times and places of sessions in the other counties remained specifically designated by statute. This act appears in the Revision of 1930 as sections 5329 and 5330. The term of the superior court in Fairfield county stated in the finding was specified by, and the sessions were fixed pursuant to, these statutes.

Section 5409 of the General Statutes 1930, the statute here directly involved, originated as chapter 3 of the Public Acts of 1879. It probably was inspired by situations such as that presented in Jaques v. Bridgeport Horse R. Co. (1875) 43 Conn. 32, which held that the trial of the case could not be completed and judgment rendered after the commencement of another regular term, except by agreement of the parties. In the Revision of 1888 this provision was preserved, as to the court of common pleas, in section 749, mentioning, as did the original act, only " the expiration of the term," while, significantly, in the similar provision as to the superior court included in section 801, the expression used is " the expiration of the term or session" at which the trial commenced, obviously a recognition of the provision for sessions effected by chapter 133 of the Public Acts of 1886. These provisions were again combined as to the superior court and court of common pleas in section 510 of the General Statutes 1902, and that section has been continued as section 5524, Revision of 1918, and section 5409, Revision of 1930.

Lawrence v. Cannavan (1903) 76 Conn. 303, 56 A. 556, concerned a judgment of the court of common pleas, as to which there was statutory provisions only for terms and not, also, for sessions as in the case of the superior court. It was held (page 307 of 78 Conn., 58 A. 556, 557) that " it was the purpose of section 510 [Revision of 1902] to provide that, irrespective of any consent of the parties, the court might *** continue the trial of a case, and render final judgment during the term next after that at which the trial commenced, upon the evidence taken at a previous term, but that a final judgment rendered after the close of such *** term, upon such evidence, and without the express or implied consent of the parties, would be irregular and erroneous." It followed, necessarily, from the construction there given the statute, that a similar infirmity would attach to a judgment of the superior court rendered after the close of the session next after that at which the trial was commenced. This was confirmed in Cheshire Brass Co. v. Wilson, 86 Conn. 551, 86 A. 26, in which a judgment of the superior...