Spencer v. Broughton

• Decision Date: 14 June 1904
• Citation: 58 A. 236,77 Conn. 38
• Court: Connecticut Supreme Court
• Parties: SPENCER v. BROUGHTON.

58 A. 236

77 Conn. 38

SPENCER

v. BROUGHTON.

Supreme Court of Errors of Connecticut.

June 14, 1904.

Appeal from Court of Common Pleas, New London County; Walter C. Noyes, Judge.

Replevin before a justice of the peace by Emily P. Spencer against William P. Broughton. There was a judgment for plaintiff, and defendant appealed to the court of common pleas, where judgment was rendered for defendant, and plaintiff appealed. Affirmed.

Abel P. Tanner and Herbert W. Rathbun, for appellant.

Seneca S. Thresher and Albert Denison, for appellee.

HALL, J. This action was originally brought before a justice of the peace to recover possession of a cash register and its contents, of the alleged value of $75, claimed to be the property of the plaintiff, and to have been unlawfully detained by the defendant under the following circumstances: In the fall of 1900, H. Jerome Spencer borrowed of the plaintiff, his mother, $500, with which he purchased the stock and fixtures, including said cash register, of a meat market, thereafter conducted by him in the village of Mystic for a short time under his own name, and afterwards, and at the time of the occurrence hereinafter described, under the name of "Mystic Cash Market." On May 1, 1902, said H. Jerome Spencer having, in addition to said indebtedness to his mother, become indebted to his merchandise creditors in about the sum of $400, some of whom were pressing him for payment, and while having no other property than that in his market executed a bill of sale of all his property, including the register in question, to his mother. The consideration stated in the bill of sale was $500, and it described the property sold, and was acknowledged and recorded as required by section 4868 of the General Statutes of 1902. After the execution of the bill of sale there was "no actual or visible change of possession, but said H. Jerome Spencer continued in the possession of the store, and managed and conducted the business under the same name and in the same manner as before," until the 14th of August, 1902, when the defendant, a deputy sheriff, attached said cash register, as the property of said H. Jerome Spencer, in suits by certain of his said creditors, whose claims were due when said bill of sale was executed. The present action was beard, and decided by the justice in favor of the plaintiff, on the 27th of August, 1902, and the defendant thereupon gave notice of his intention to appeal. The justice having informed defendant's attorney that a bond would be required, he replied that it would be furnished, but the court adjourned without any time having been fixed for the furnishing of such bond, and the appeal bond was not furnished and taken by the justice until a few days after such adjournment The appeal by the defendant from the judgment of the justice was taken and allowed "to the next court of common pleas for New London county on the first Tuesday of October, 1902," as required by section 683 of the General Statutes of 1888, instead of to the next return day of said court on the first Tuesday of September, 1902, as required by sections 540 and 567 of the General Statutes of 1902. The appeal was duly entered on the docket of said court of common pleas on said first Tuesday of October,...