State ex rel. Rowland v. Smith
| Decision Date | 19 December 1916 |
| Citation | 91 Conn. 110,99 A. 555 |
| Court | Connecticut Supreme Court |
| Parties | STATE ex rel. ROWLAND v. SMITH, Judge of Probate. |
Appeal from Superior Court, Middlesex County; Marcus II. Holcomb, Lucien F. Burpee, and Joseph P. Tuttle, Judges.
writ of mandamus against Mark Smith, Judge of Probate for the District of Clinton, requiring him to correct appeal papers in an appeal which had been granted to the plaintiff from an order which had been passed by the defendant as Judge of said Probate Court. An alternative writ of mandamus having been issued, a motion to quash the same was denied by the court, Holcomb, J., after which a return to the writ was filed and a demurrer thereto was sustained, Burpee, J., and a peremptory writ against the defendant issued. The defendant appeals, assigning as error the overruling of his motion to quash and his demurrer to the return. Reversed and remanded, with direction.
The defendant, as probate judge for the district of Clinton, passed a decree removing the plaintiff as natural guardian of his minor son. On the 19th of September, 1913, the plaintiff's then attorney, Mr. O'Flaherty, now deceased, moved for an appeal to the superior court next to be held in and for Middlesex county on the fourth Tuesday of September, 1913, and the appeal was allowed. Appeal papers were prepared stating that an appeal from the decree had been taken by the plaintiff to the superior court to be held on the fourth Tuesday of September, 1913, and allowed by the court, a bond given, and this, with an order of notice attached, was signed by the defendant as judge of the court. Later, on the 27th of September 1913, the plaintiff's said attorney requested the defendant to correct the appeal papers by substituting "the first Tuesday of October" for the words "the last Tuesday of September," which the defendant refused to do. The peremptory writ orders this correction to be made as prayed for in the application.
Charles A. Pelton, of Clinton, and Wesley U. Pearne, of Middletown, for appellant. Frank D. Haines, of Middletown, for appellee.
THAYER, J. (after stating the facts as above). The proceedings in the probate courts are generally somewhat informal. A formal written motion for the allowance of an appeal is not necessary unless required to show that the person desiring to appeal has such an interest in the order appealed from as entitles him to appeal, or for some like reason. The defendant in the present case in his return to the writ attempts to justify his refusal to correct the appeal upon the ground that the appeal was specifically taken to the superior court in Middlesex county to be held on the fourth Tuesday of September, 1913, and that, having allowed the appeal as asked for and signed the appeal papers, he had no power to allow the correction asked for. The statutes provide that a term of the superior court shall be held in Middlesex county for the transaction of civil and criminal business annually on the fourth Tuesday of September. They provide that appeals from probate shall be taken to the superior court. They provide also that process in civil actions (to which probate appeals belong), if brought to the superior court, shall be made returnable on the first Tuesday of any month except July and August, and that all process shall be made returnable to the next return day or the next but one to which it can be made returnable. The appeal therefore was in this case taken to the proper court, namely, the superior court in Middlesex county, within which is the probate district of Clinton. The trouble was with the process which was issued by the court. This consists of a copy from the probate record showing the order appealed from,...
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Varanelli v. Luddy.
...could have the benefit of the facts alleged in her answer. Wardell v. Killingly, 96 Conn. 718, 115 A. 539; and see State ex rel. Rowland v. Smith, 91 Conn. 110, 114, 99 A. 555. The motion to erase the application states as its grounds that the officials of the City Court were not parties to......
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Coughlan v. Murphy.
...of process. The defendant particularily relies on Campbell's Appeal, 76 Conn. 284, 288, 56 A. 554, 556, and State ex rel. Rowland v. Smith, 91 Conn. 110, 112, 99 A. 555, in which we held that appeals from probate were ‘process in civil actions' within the provisions of the statutes governin......
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State ex rel. Bonoff v. Evarts
... ... State ex rel. Gilbert Eliott & Co. v. Lake ... Torpedo Boat Co., 90 Conn. 638, 643, 98 A. 580, L.R.A ... 1916F, 1033; State ex rel. Rowland v. Smith, 91 ... Conn. 110, 113, 99 A. 555. While in this case costs were not ... taxable in the trial court for want of statutory authority, ... ...