Stroman v. Gilbert

• Citation: 2 Conn.Cir.Ct. 179,197 A.2d 99
• Decision Date: 23 July 1963
• Docket Number: No. CV,CV
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: Marion H. STROMAN v. Ulysse GILBERT. 14-6211-1672.

Page 99

197 A.2d 99

2 Conn.Cir.Ct. 179

Marion H. STROMAN v. Ulysse GILBERT.

No. CV 14-6211-1672.

Circuit Court of Connecticut, Appellate Division.

Argued June 10, 1963.

Decided July 23, 1963.

Philip M. Finkelstein, Hartford, for appellant (plaintiff).

Leonard E. Wladimer, Hartford, for appellee (defendant).

KINMONTH, Judge.

This is a bastardy proceeding, brought under § 52-435 of the General Statutes, wherein the only issue before the trial court was that of probable cause. The court found for the defendant, and the plaintiff has appealed.

Our first consideration is whether the plaintiff has a right to appeal from an adverse finding on a hearing in probable cause. In criminal cases, it is well established that a hearing in probable cause is not a trial and the judgment is not a final one from which an appeal may be taken. State v. Wilson, 22 Conn.Sup. 345, 172 A.2d 902, and cases cited. It has long been the settled law of the state that our statutory bastardy proceedings are civil and not criminal in their nature and that the general rules respecting civil cases are applicable to them. Pelak v. Karpa, 146 Conn. 370, 372, 151 A.2d 333; Hamden v. Collins, 85 Conn. 327, 330, 82 A. 636. The Circuit Court, at the time of the present hearing, had no final jurisdiction in bastardy cases; the sole issue before it was the finding of probable cause or lack of it. See Notargiovanni v. Martucci, 105 Conn. 386, 390, 135 A. 290. In this respect, bastardy proceedings resembled our criminal proceedings on a hearing in probable cause.

Generally, there is no right to obtain appellate review of bastardy proceedings except as such a right has been granted by some applicable statutory provision. Our statute, § 52-435, gives this right as follows: 'If the court fails to find probable cause, such finding shall be a bar to any further proceeding for the same cause of action, provided the complainant shall be allowed to appeal as provided in section 51-265.' (Prior to 1961 the complainant was allowed to appeal to the Court of Common Pleas, that being the court to which the defendant would have been bound over had probable cause been found. Presumably the case would then have been tried on its merits, because of the final jurisdiction of the Court of Common Pleas in bastardy proceedings.) Both the prior statute and the statute governing the present case had the following provision: 'If the court finds probable cause, or in the event of the court failing to find probable cause and the plaintiff appealing * * *, it shall order such accused person to become bound to the complainant with surety to appear before the next court of common pleas * * *.' This would thus appear to be inconsistent with the present right to appeal to the Appellate Division of the Circuit Court, but the question may be academic by the time this opinion is published, since the recent legislature passed a bill giving final jurisdiction in bastardy proceedings to the Circuit Court. Public Acts 1963, No. 602, § 1. The legislative intent is clear that the appeal shall be taken to the Appellate Division of the Circuit Court.

Section 51-265 states: 'Appeals from any final judgment or action of the circuit court * * * shall be taken to an appellate session of such court within fourteen days after the entry of judgment or of the findings of fact and conclusions of law, whichever is later, and shall be by way of review of errors of law.' Section 52-435 gives only the complainant (plaintiff) the right to appeal, and if she does not appeal she is forever barred. Thus the judgment, finding, or action of the trial court becomes final as to the plaintiff. It seems to us immaterial in the instant case whether we determine that the trial court's finding is final, since § 52-435 grants the right of appeal to the complainant upon the court's failure to find probable cause. The legislature's intent was to give the complainant the right to appeal from the decision of the judge, for in such a case as this the court could not render a final decision upon the merits of the action. See H. O. Canfield Co. v. United Construction Workers, 134 Conn. 358, 362, 57 A.2d 624. We therefore hold that the appeal is properly before us.

The plaintiff assigns error in the court's failure to correct the finding and in the conclusions reached.

The findings, with such corrections as we deem proper, are as follows: The plaintiff, a resident of Hartford, is a single woman. Prior to April, 1960, she had engaged in sexual intercourse with the defendant and one Schley. During the months of April, May, and June, she had intercourse only with the defendant. In June and September of 1960, the plaintiff accused the defendant of being the father of her child, which the defendant denied. On March 13, 1961, the plaintiff gave birth to a child. By certificate dated June 27, 1962, Dr. Philip R. Partington, on the basis of medical records but not a personal examination, rendered an opinion that the plaintiff was delivered of a child.

The trial court concluded that probable cause could not be found and that there was no certificate of a physician based upon personal knowledge. As to the latter finding, § 52-435 reads: '* * * upon filing with a commissioner of the superior court the certificate of a reputable physician, certifying that after personal examination of the person...