State v. Fahey

• Decision Date: 24 November 1959
• Citation: 147 Conn. 13,156 A.2d 463
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Raymond J. FAHEY. Supreme Court of Errors of Connecticut

Page 463

156 A.2d 463

147 Conn. 13

STATE of Connecticut v. Raymond J. FAHEY.

Supreme Court of Errors of Connecticut.

Nov. 24, 1959.

Wesley C. Gryk, Manchester, with whom, on the brief, was Anthony J. Gryk, Manchester, for appellant (defendant).

Jack Rubin, Asst. Atty. Gen., with whom, on the brief, was Albert L. Coles, Atty. Gen., for appellee (plaintiff).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

MELLITZ, Justice.

This is an appeal from the denial of the defendant's motion to revoke an order referring to a state referee the ascertainment of the damages for the taking of the defendant's property for the improvement of an airport, Bradley Field, in the town of Suffield. The matter has been before us on a motion of the plaintiff to dismiss the appeal. State v. Fahey, 146 Conn. 55, 147 A.2d 476. A summary of the pleadings and the background of the appeal appears in that opinion (146 Conn. at page 56, 147 A.2d 476). We stated (146 Conn. at page 58, 147 A.2d 476) that the order of reference was a final judgment from which an appeal could be taken. City of Bristol v. Bristol Water Co., 85 Conn. 663, 670, 84 A. 314; Antman v. Connecticut Light & Power Co., 117 Conn. 230, 235, 167 A. 715. We added, however, that the appeal, so far as it pertained to the making of the order was not timely because it was not taken within two weeks of the date of the order. We held that the appeal as it related to the denial of the defendant's motion to revoke the order was timely and should not be dismissed. We said (146 Conn. at page 59, 147 A.2d 476) that the motion to revoke the order of reference was the legal equivalent of a motion to open a judgment, the denial of which constituted a final judgment from which an appeal lies. The single question before us is whether the court erred in denying the defendant's motion that the order of reference be revoked.

A motion to open and vacate a judgment during the term at which it was rendered is addressed to the court's discretion, and the action of the court will not be disturbed on appeal unless it has acted unreasonably and in clear abuse of its discretion. Cichy v. Kostyk, 143 Conn. 688, 697, 125 A.2d 483; McCulloch v. Pittsburgh Plate Glass Co., 107 Conn. 164, 167, 140 A. 114. The denial of the defendant's motion to revoke the order of reference must stand unless the court abused its legal discretion or its action was otherwise based on some error in law. Carrington v. Muhlfeld, 122 Conn. 334, 337, 189 A. 184.

The basis of the motion to revoke the order of reference is that the order was made despite the fact that the defendant had filed an answer denying certain allegations of the petition and the issues framed by the answer had not been determined. One issue which the answer presented was whether the parties were unable to agree on the amount of compensation. Inability to agree is a condition precedent to relief under the statute under which the petition was brought; General Statutes, § 15-79; West Hartford v. Talcott, 138 Conn. 82, 89, 82 A.2d 351; and the burden of proof on the issue was on the plaintiff. Connecticut College v. Alexander, 85 Conn. 602, 605, 84 A. 365, 366; New York, N. H. & H. R. Co. v. Long, 69 Conn. 424, 439, 37 A. 1070. On an appeal from the order of reference, the defendant could have assigned error in the failure of the court to determine this issue before making the order of reference. Likewise, the defendant could have assigned error in the other rulings which were made in the course of the proceeding and which are claimed by the defendant to be erroneous. In essence, what the defendant sought to accomplish by a revocation of the order of reference was another opportunity to present the claims which he could have presented had he appealed from the order. But no appeal from the order was seasonably taken. Claimed errors which might have been assigned on such an appeal are no longer open to review. Antman v. Connecticut Light & Power Co., 117 Conn. 230, 235, 167 A. 715; Krooner v. State, 137 Conn. 58, 60, 75 A.2d 51.

We have, on occasion found error in the failure of a court to open a judgment, where opening it would prevent an apparent miscarriage of justice. Ideal Financing Ass'n v. LaBonte, 120 Conn. 190, 196, 180 A. 300. We cannot say on the showing here that the court abused its discretion or otherwise erred in refusing to revoke the order of reference. Particularly is that so because the record does not indicate that the defendant opposed the entry of the order of reference by calling the court's attention either to the state of the pleadings or to any other obstacle to the reference, or that the defendant sought any postponement, or that he had any good reason for not taking a timely appeal from the order of reference.

While this discussion disposes of the case, we briefly note a claim made by the plaintiff in argument, that State v. Fahey, 146 Conn. 55, 147 A.2d 476, changed our settled rule as to pleading and burden of proof in condemnation cases. Such a claim is without foundation. The complaint, as it related to the issue of the necessity for the taking, lacked clarity of expression. After...