Tamarit v. Ottolini

• Decision Date: 28 October 1958
• Citation: 145 A.2d 587,145 Conn. 586
• Court: Connecticut Supreme Court
• Parties: Cella TAMARIT et al. v. Joseph OTTOLINI et al. Supreme Court of Errors of Connecticut

Page 587

145 A.2d 587

145 Conn. 586

Cella TAMARIT et al. v. Joseph OTTOLINI et al.

Supreme Court of Errors of Connecticut.

Oct. 28, 1958.

Thomas J. Hagarty, Hartford, for appellees (plaintiffs).

Snow G. Munford, Hartford, for appellant (named defendant).

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

BALDWIN, Associate Justice.

The named defendant filed an appeal on April 2, 1957, and, extensions of time having been requested and granted by the court, a request for a finding and a draft finding on September 6, 1957. On January 22, 1958, he withdrew these and filed an assignment of errors. The record was mailed to counsel on June 24, 1958, but the named defendant, hereinafter called the defendant, did not file his brief until September 10, 1958, seventy-eight days after the record had been mailed.

On September 19, 1958, the plaintiff's filed a motion to dismiss the appeal, alleging that the defendant had failed (1) to file his brief within the thirty days prescribed by Practice Book, § 451, and (2) to prosecute his appeal with proper diligence. Practice Book, § 436. We shall consider first the allegation that the defendant failed to file his brief within the time prescribed. The defendant concedes that the brief was not filed until more than thirty days after the record had been mailed to counsel, but he claims that the time prescribed by Practice Book, § 451 was suspended during the months of July and August by virtue of the provisions of Practice Book, § 414. The first issue of law presented by the motion is whether the provisions of § 414 suspend the running of the time prescribed in § 451 for the filing of an appellant's brief. Section 451 requires an appellant to file his brief with the clerk '[w]ithin thirty days after the mailing of the printed record to counsel.' It further provides that the trial judge or the trial court 'may extend, under Sec. 413, the time for filing briefs, provided the application is made before the expiration' of the time specified. Section 414 states that 'all limitations of time as regards proceedings to make or complete the record in any case where an appeal has been taken shall be suspended during July and August.' Sec. 413 states that the trial judge or the court 'may, for good cause shown, extend the time provided for filing any paper or taking any other steps necessary to perfect the appeal, except as otherwise provided in these rules.' The resolution of the issue, then, depends upon whether under § 414 the filing of a brief is a proceeding 'to make or complete the record.' From a reading of Practice Book, §§ 420-426, relative to the preparation of the record, and Practice Book, §§ 445-451, relative to the requirements of a brief, it is manifest that under the rules briefs are not considered to be a part of the record. The distinction between the record and the briefs is further brought out by the opening sentence of § 451, which states: 'Within thirty days after the mailing of the printed record to counsel, the appellant shall file with the clerk of the court who prepared the record fifteen copies of his brief and appendix, if any.' We conclude, therefore, that the time stated in § 451 for the filing of briefs is not suspended by the operation of § 414, which pertains only to the proceedings necessary to the preparation of the record, and that the defendant did not file his brief within the time prescribed by § 451.

The second issue of law raised by the motion is whether the appeal should be dismissed for failure of the defendant to file his brief within the thirty days prescribed by Practice Book, § 451, as we have herein interpreted it. The motion to dismiss was filed on September 19, 1958. Practice Book, § 436 states, inter alia: 'Any claim that an appeal * * * should be * * * dismissed, * * * [for] failure to file papers within the time allowed * * * shall be made by a motion to dismiss the appeal * * *. Any such motion must be filed * * * within ten days after the filing of the appeal * * *, or if the ground alleged subsequently occurs, within ten days after it has arisen * * *.' In the instant case the time for filing the defendant's brief expired on July 24, 1958. Under § 436 the time for filing a motion to dismiss the appeal for failure to file the brief expired on August 4, 1958. Consequently, the plaintiffs' motion to dismiss for failure to file the brief on time came too late, since it was filed on September 19, 1958. Accordingly, the motion is denied as it pertains to this ground. Loomis v. Zoning Commission, 144 Conn. 743, 745, 133 A.2d 906.

The plaintiffs' motion also claims that the appeal of the defendant should be dismissed because he has failed to prosecute it with proper diligence. Under Practice Book, § 436 there is no time limitation prescribed for the filing of a motion based upon this ground. Loomis v. Zoning Commission, supra. Furthermore, under Practice Book, § 436A the court may upon the motion of any other party to the appeal or upon its own motion dismiss an appeal for failure of the appellant to prosecute it with proper diligence. The issue, then, is whether the defendant has prosecuted his appeal with proper diligence. The plaintiffs had a verdict on February 27, 1957, which the trial court set aside as inadequate on March 21, 1957, upon their motion. The defendant appealed on April 2, 1957. With this appeal he filed a motion for an extension of time to file a request for a finding and a draft...