Standard Oil Co. of New York v. City of New Britain

• Decision Date: 31 March 1930
• Citation: 111 Conn. 214,149 A. 677
• Court: Connecticut Supreme Court
• Parties: STANDARD OIL CO. OF NEW YORK v. CITY OF NEW BRITAIN ET AL.

149 A. 677

111 Conn. 214

STANDARD OIL CO. OF NEW YORK v. CITY OF NEW BRITAIN ET AL.

Supreme Court of Errors of Connecticut.

March 31, 1930

Appeal from Superior Court, Hartford County; Edward M. Yeomans Judge.

Proceeding by the Standard Oil Company of New York for mandamus to compel the City of New Britain and its building inspector to issue a permit to relator for the erection of a gasoline station on its property, or to signify cause to the contrary. The superior court rendered judgment issuing a peremptory writ, and defendants appeal.

Error judgment set aside, and cause remanded.

John H. Kirkham, Corporation Counsel, of New Britain, for appellants.

Donald Gaffney, of New Britain, for appellee.

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

WHEELER, C.J.

The relator made its motion to the superior court that it issue a writ of mandamus requiring the respondents the city of New Britain and its building inspector to issue to it a permit for the erection of a gasoline station on its property as described in the motion. The record contains a " Return to Writ of Mandamus" filed June 12, 1929, together with a reply to the respondents' return filed June 12, 1929. The court rendered its decision, filed June 18, 1929, that the writ of mandamus issue, and the judgment file bears date the same day. The judgment recites that the motion of the relator that the court issue a peremptory writ requiring the respondents to issue such permit, or signify cause to the contrary, came to the court on May 28, 1929, and the parties appeared and the defendant made return to " the alternative writ as on file," whereupon it was adjudged that the building inspector issue such permit. On June 21 1929, the respondents moved, for reasons stated, that the case be assigned for trial; on June 29th, the court denied the motion. Thereupon respondents, on August 29th, filed their draft finding and accompanied it by a statement of certain claims of law which they desired reviewed, several of which were as follows:

" (16) Whether the court erred in deciding the case and giving final judgment before the issuance of a writ of mandamus and before the pleadings were rightfully closed and without giving, as well as refusing, respondents the opportunity to prove the allegations contained in their return and to disprove the allegations contained in relator's motion for a writ of mandamus.

(17) Whether the court erred in denying the motion of respondents on file that the case be assigned for trial and hearing had.

(18) Whether the court erred in decreeing a peremptory mandamus without a prior interlocutory judgment of alternative mandamus.

(19) Whether the court erred in rendering judgment of peremptory mandamus before a complete trial of the issues raised in respondents' return and relator's reply thereto.

(20) Whether the court erred in issuing a peremptory mandamus on a return sufficient on its face and denied by the relator without inquiring into the truth of the return, but on the contrary denying respondents the right of proving the truth of their return.

(21) Whether the court erred in treating the respondents' stipulation that all the evidence at the preliminary hearing might be considered as a part of the record in this action as a foreclosure of their rights to offer further evidence in the cause."

The respondents moved to correct the finding filed by the court by adding paragraphs 52, 53, 54, 55, 56, and 57 of the draft finding and accompanied their motion by a copy of what they allege was the material evidence in support of these paragraphs. The facts contained in these paragraphs were essential in making applicable respondents' claims of law which have just been quoted. The evidence submitted fully supports these paragraphs of the draft finding. No evidence to the contrary was submitted by the relator and none by the court. We therefore correct the finding by adding the substance of the paragraphs as follows:

The hearing on the application was as to whether a writ of alternative mandamus should issue. At its beginning counsel for the respondents expressly stated this to be his understanding. No alternative writ had been issued prior to this hearing, and none was issued during its progress. Counsel for the respondents asserted that the time had not arrived for him to make a return to the alternative writ, " which may be or may not be issued." Counsel for the relator disclaimed his purpose to have the respondents then...