State ex rel. Bonoff v. Evarts

• Decision Date: 10 May 1932
• Citation: 160 A. 294,115 Conn. 98
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. BONOFF v. EVARTS, Probate Judge.

160 A. 294

115 Conn. 98

STATE ex rel. BONOFF v. EVARTS, Probate Judge.

Supreme Court of Errors of Connecticut.

May 10, 1932

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

Action by the State, on the relation of Minnie Bonoff administratrix, for a writ of mandamus to require Cyrus D Evarts, judge of probate, to make a decision upon an account filed in the court of probate. Respondent's motion to quash and motion to expunge were denied, and judgment was rendered granting the writ, and respondent appeals.

Error as to costs only; judgment set aside, and case remanded, with direction.

John V. O'Brien, of New Haven, for appellant.

William J. Carrig, of New Haven, for appellee.

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

MALTBIE, C.J.

This is an appeal from a judgment directing the issuance of a peremptory writ of mandamus to the defendant, as judge of the court of probate for the district of Madison, ordering him to hold a hearing and take action upon an account filed by Minnie Bonoff, as administratrix of the estate of Charles Bonoff. The only claims of error have to do with procedural matters. The petition stated that it was brought by the State's Attorney for New Haven County at the relation of Minnie Bonoff, without designating her as administratrix of the estate; but the allegations made recite that she is administratrix, it was perfectly evident that the petition was brought in her behalf as such administratrix, and the objection was too technical to merit attention. The motion to quash based upon this defect was properly denied. The allegation in the petition which stated as the reason for the failure of the judge of probate to act upon the account his insistence that the administratrix first pay a claim against the estate which she believed to be unjust and improper, while not a necessary statement, was not so irrelevant or immaterial that the trial court might not in its discretion properly deny the motion to expunge it. Donovan v. Davis, 85 Conn. 394, 398, 82 A. 1025.

The alternative writ issued November 17, 1931, and directed the defendant to act upon the account or show cause to the contrary on the first Tuesday of December following, which was December 1st. On the day before the defendant filed a motion to quash, which on December 1st the court denied. On December 3d, the defendant was ordered to file a return the next day, but instead filed the motion to expunge and claimed it for the short calendar, which would postpone the hearing upon it for a week, and orally moved for such a postponement. The court on the same day denied the motion, and ordered a return or other pleading to be filed on or before the 8th. The defendant claims that in this speedy disposition of the matter the trial court violated the rules of the superior court concerning the hearing of matters claimed for the short calendar and fixing the times within which pleadings are to be filed. The rule as to placing motions upon the short calendar permits the trial court to order otherwise. Practice Book 1922, p. 243, § 15. The rules fixing the times for filing pleadings apply " in ordinary civil actions." Practice Book 1922, p. 277. They were adopted in...