Todd v. Bradley

Decision Date07 July 1922
Citation117 A. 808,97 Conn. 563
CourtConnecticut Supreme Court
PartiesTODD v. BRADLEY et al.

Appeal from Superior Court, New Haven County; John W. Banks, Judge.

Action by James E. Todd, trustee, against Walter E. Bradley and others. From a judgment for defendants, plaintiff appeals. No error.

Motion for new trial pursuant to General Statutes, § 5825 because the judge rendering final judgment has thereafter become incapable of making a finding for appeal, brought to and tried by the superior court for New Haven county, Banks J., upon demurrer to the motion. The court sustained the demurrer pro forma, and, upon the refusal of the plaintiff to plead further, rendered judgment for the defendants, from which the plaintiff appealed.

Frederick H. Wiggin and Robert C. Stoddard, both of New Haven, and William C. Mueller, of Meriden, for appellant.

Benjamin Slade and Harry W. Asher, both of New Haven, for appellees.


The original action was brought by a trustee in bankruptcy against the defendant Walter H. Bradley and certain members of his family to recover property fraudulently conveyed and concealed from creditors. The cause was tried before Hon Donald T. Warner, judge of the superior court, and final judgment rendered by him on December 14, 1920, for defendants. On December 24, 1920, plaintiff made his motion in said court for a new trial, alleging that he duly filed his notice of appeal from such judgment, that Judge Warner became 70 years of age on December 15, 1920, and was thereafter incapable of holding the office of judge of the superior court, or performing any of the duties of that office, and by reason thereof is incapable of making a finding for the purpose of an appeal to the Supreme Court of Errors.

The defendants demurred to the motion upon the ground that it appears by the allegations of the motion that Judge Warner is alive and capable of making a finding, that the making of such finding is not a judicial act, nor an act which Judge Warner is by the Constitution of Connecticut incapable of making, by reason of the fact that his term of office has expired through his having reached the age of 70 years. The demurrer was sustained pro forma, and, the plaintiff having refused to plead further, judgment was rendered for the defendants, and plaintiff appealed for error in sustaining the defendants' demurrer.

The motion for a new trial is primarily based upon the allegation that Judge Warner having reached the age of seventy years was, by article 12 of the Amendments to the Constitution of Connecticut, incapable of holding the office of judge of the superior court, or of performing any of the duties of that office, and hence incapable of making a finding for the purpose of an appeal. Defendants' demurrer to the motion raises the question whether Judge Warner was incapable of making such finding. The court sustained the demurrer pro forma, and this ruling raises the single question which the plaintiff appellant pursues in brief and oral argument. The provision of our Constitution which appellant claims forbids Judge Warner to make a finding reads as follows:

" No judge of the Supreme Court of Errors or of the superior court shall be capable of holding his office after he shall arrive at the age of seventy years."

As we construe General Statutes, § 5825, under which appellant brings his motion, we do not find the ground of his motion included within that statute. And as we construe the constitutional provision in question, we are unable to accord to it the meaning which appellant gives to it. Section 5825 provides that if the notice of appeal has been filed, and the judge who heard the cause shall die or become incapable of making a finding for the purpose of appeal, the motion for a new trial lies at the instance of the party against whom the judgment has been rendered. This statute was enacted in Public Acts 1905, c. 62, in consequence of the decision in Etchells v. Wainwright, 76 Conn. 534, 57 A. 121, that a new trial could not be allowed in a case where the judge had died without having made a finding, after notice of appeal and request for a finding, since our law did not provide for a new trial in such a case. The statute changed the law as announced in this case. Lippitt v. Bidwell, 87 Conn. 608, 89 A. 347.

Since 1885 we had had this statute, now General Statutes, § 5847:

" Any judge of the superior court or of any court of common pleas, district court of Waterbury or city court may, after ceasing to hold his office as such judge, settle and dispose of all matters relating to appeal cases including findings *** and making up, certifying and correcting records in appeal cases, as well as any other unfinished matters pertaining to causes theretofore tried by him, in as full a manner as if he were still such judge."

We construed section 5847 in Johnson v. Higgins, 53 Conn. 236, 1 A. 616. In this case a judge, after he had resigned, had made a finding for purposes of an appeal. We said:

" Similar legislation, and of more embracing scope, has for many years been operative, unchallenged, in reference to the judicial power of justices of the peace. No substantial reason is given why the legislative power is incompetent to authorize, judicial officers, after their term of office, to complete the history of trials had, and to give permanent and official form to facts found during their term of office. *** At all events, and not to pursue this subject further, we are all of opinion that the statute of 1885, before referred to, fully warranted the act of the judge in sending the case to this court."

We held this act constitutional. We are not now considering that question, although we ought not to pass it without stating that we do not see how the provision permitting the judge who had ceased to hold office to make up a finding for the purpose of an appeal could be held to be unconstitutional. Similar statutes have given the judge the power to frame a bill of exceptions beyond his term of office, and these have been upheld. State v. Barnes, 16 Neb. 40, 19 N.W. 701; Montana Ore Purchasing Co. v. Lindsay, 25 Mont. 24, 63 P. 715.

We are referring to this statute to ascertain the legislative intent in passing section 5825. When it passed this, it knew of the existence of section 5847, and that in virtue of this statute the making of a finding for the purpose of an appeal by a judge who had ceased to hold office had been upheld by this court. It is thus clear that the Legislature did not intend to include in its term " incapable," the judge who has ceased to hold office. Ceasing to hold office may be effected by resignation, by expiration of the term, and by ouster. If these methods of ceasing to hold office are not included within the meaning of " incapable," how can it be said that the Legislature intended to include the case of the judge who has reached the age of 70 years and whose term of office has expired by this fact? If the judge shall become " incapable" of making a finding, as used in section 5825, we construed, in Lippitt v. Bidwell, 87 Conn. 608, 613, 89 A. 347, to mean if the judge shall become unable to make a finding through his inability or disability.

" Incapable" is used in this statute, as we have held, in the sense of inability or disability. A statute which provided for certain action to be had upon the death or disability of the judge would ordinarily be construed to refer, by " disability," to the physical or mental disability of the judge. Used in this connection, it would not in the customary use of language be construed to mean if the judge was incapable to act because of disqualification. Disability may mean the incapacity to act through disqualification, but the context here...

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12 cases
  • Honulik v. Town of Greenwich
    • United States
    • Connecticut Supreme Court
    • October 13, 2009
    ...a trial judge who had ceased to hold office by virtue of turning seventy lacked the power to make a finding for purposes of appeal. Id., at 564, 117 A. 808. Relying on Johnson, this court concluded that the precursor to § 51-183g properly authorized the trial judge's act. Id., at 566-71, 11......
  • Goldberg v. Krayeske
    • United States
    • Connecticut Supreme Court
    • March 6, 1925
    ... ... who tried the case had ceased to hold office is not of ... [128 A. 30] ... consequence. Todd v. Bradley, 97 Conn. 563, 117 A ... 808, 25 A.L.R. 22. The judgment is, however, sadly defective ... in its failure to give specific directions as ... ...
  • Benedict v. Citizens National Bank of Casper
    • United States
    • Wyoming Supreme Court
    • November 24, 1931
    ... ... statutory authority, may be performed by the trial judge ... after he ceases to be a judge. See: Van Buren v ... State, 24 Miss. 512; Todd v. Bradley, 97 Conn ... 563, 117 A. 808, 25 A. L. R. 22; Larkin ... [5 P.2d 279] ... v. Saltair Beach Co., 30 Utah 86, 83 P. [43 Wyo ... 432] ... ...
  • Todd v. Bradley
    • United States
    • Connecticut Supreme Court
    • July 27, 1923
    ...conveyed or concealed with intent to defraud creditors. Judgment for the defendants, and the plaintiff appeals. No error. See, also, 97 Conn. 563, 117 A. 808. C. Stoddard and Frederick H. Wiggin, both of New Haven, and William C. Mueller, of Meriden, for appellant. Benjamin Slade and Harry ......
  • Request a trial to view additional results

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