Webb v. Ambler

• Citation: 125 Conn. 543,7 A.2d 228
• Court: Supreme Court of Connecticut
• Decision Date: 08 June 1939
• Parties: WEBB v. AMBLER et al.

7 A.2d 228

125 Conn. 543

WEBB v. AMBLER et al.

Supreme Court of Errors of Connecticut.

June 8, 1939

Appeal from Court of Common Pleas, Fairfield County; Samuel Mellitz Judge.

Action of summary process by Charles M. Ambler and another against Clarence H. Webb. From a judgment dismissing a writ of error to set aside a judgment of a city court for plaintiffs and order a new trial, defendant appeals.

No error.

Sidney Vogel, of South Norwalk, for appellant.

John Keogh, Jr., and Nehemiah Candee, both of South Norwalk, and Ira O. Gregory, of Norwalk, for appellees.

Argued Before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

MALTBIE, Chief Justice.

This action began as a summary process proceeding Before a justice of the peace in the town of Norwalk. It was transferred to the City Court of Norwalk which rendered judgment for the defendants in error, the lessors. The plaintiff in error, the lessee, brought a writ of error to the Court of Common Pleas for Fairfield County and that court found no error. The lessee then appealed to this court. At the threshold of our consideration of the case we are confronted with the claim by the lessors that we are without jurisdiction to entertain this appeal because, under the provisions of the statutes proceedings in summary process can only be reviewed by writ of error.

In 1882 the former procedure by which questions of law were brought to this court upon motions for a new trial was replaced by an appeal. Public Acts 1882, Chap. 50. Except as hereinafter noted, the provisions of the statute authorizing appeals have since remained substantially as originally enacted but with changes in phraseology made from time to time. In the Revision of 1902 it was provided that, ‘ upon the trial of all matters of fact in any cause or action in the superior court, court of common pleas, district court of Waterbury, or any city court’ an appeal might be taken to this court. Revision 1902, § 788. In 1905 the words ‘ except summary process' were inserted following the words ‘ any cause or action’ in the above quotation. Public Acts 1905, Chap. 112. Since then this provision of the statute has remained unchanged so far as affects the question Before us. Revision 1930, § 5689. In only one case, decided in 1906, has the effect of the amendment of 1905 been considered by us. Marsh v. Burhans, 79 Conn. 306, 309, 64 A. 739, 740. That case involved a summary process action tried in the City Court of Hartford and an appeal was taken from the decision of that court to this court. The appeal was erased on the ground that there was no authority for bringing Before this court a judgment of the City Court in summary process except by writ of error. This court refused to decide whether the exception as to summary process inserted by the amendment of 1905 ‘ should be treated as extending through the entire section,’ holding that, even without an express exception the provisions of the appeal statute would not apply to that special statutory proceeding, merely because the jurisdiction of a justice of the peace had in some instances been conferred by special act upon city courts. In the same year, but previous to that decision, this court had entertained an appeal from a decision of a Court of Common Pleas upon a writ of error from a judgment of a justice of the peace in an action of summary process. Connors v. Clark, 79 Conn. 100, 63 A. 951.

Since these decisions there have been at least seven instances where writs of error have been brought to this court from decisions of City Courts in summary process actions and no appeals from such courts have been entertained; but, on the other hand, not less than ten instances are found in the reports where appeals have been taken to this court from judgments of the Superior Court or Courts of Common Pleas upon writs of error brought to them from justices of the peace or municipal courts in summary process actions, and in no instance has any question been raised as to the propriety of this procedure. These decisions indicate an established practice by the bench and bar that where summary process actions are tried upon the facts in courts whose decisions are reviewable only in this court, they must be presented to it by writs of error, but where such writs have been taken from municipal courts or justices of the peace to the Superior Court or Courts of Common Pleas and there decided an appeal lies to this court from the judgment. It is true that in Goldberg v. Callender Brothers, Inc., 95 Conn. 69, 71,110 A. 457, it is stated broadly that correction of errors committed by a trial court in summary process actions can be obtained only by writs of error, but that was said in an attempted appeal from the decision of a City Court and we based our decision upon the ancient provision now found in § 5974 of the General Statutes, that no appeal shall be allowed from any judgment rendered in such an action. However, in Marsh v. Burhans, supra, it was pointed out that the appeal referred to in that statute was manifestly that provided by the General Statutes from judgments of a justice of the peace, which would result in a trial of the case de novo in the appellate court.

The reasons for forbidding an original appeal in summary process are found in the summary nature of the proceeding, the purpose being to prevent a retrial of questions of fact in another court and a speedy determination of issues of law. Banks v. Porter, 39 Conn. 307, 308; Marsh v. Burhans, supra, 79 Conn. page 308, 64 A. 739. These same considerations lose force with reference to a review by this court of the decision upon a writ of error by the Superior Court or a Court of Common Pleas. In such a review, questions of fact could not in any event be retried and procedure by appeal, instead of making for delay might well result in a more speedy decision of the case. The provisions of § 5980 of the General Statutes, that the defendant shall have forty-eight hours after judgment has been rendered for filing his bill of exceptions and procuring his writ of error and that execution shall be stayed during that time in terms, apply only to defendants and have been construed as merely designed to afford the defendant a stay of execution for a forty-eight hour period in order to give him time to procure a writ of error and have his bill of exceptions allowed and as not preventing the issuance of a writ even in behalf of a defendant after that period. Casner v. Resnik, 95 Conn. 281, 283, 111 A. 68. A writ of error to this court must be served at least thirty days Before the day of the sitting of the court. General Statutes, § 5462. Even if § 5980 of the General Statutes, above referred to, were to be held to apply to avoid a stay of execution unless the writ was issued within forty-eight hours after the decision by the Superior Court or a Court of Common Pleas, yet such a writ would have to be made returnable at least thirty days after the judgment; the terms of this court are held only once a month exclusive of the summer months; and there might well be an interval of some two months or, if the summer intervenes, much longer Before the writ of error would go upon the docket of this court; and if made returnable to a later term a much longer period would elapse. On the other hand, as no finding of facts would ordinarily be required to present to this court the decision of the Superior Court or a Court of Common Pleas upon a writ of error brought to it, the rules require that the appeal shall be taken and assignments of error filed within two weeks of the rendition of the judgment unless the court grant an extension of time. Practice Book 1934, p. 98, § 335. In the case of an appeal by the defendant in a summary process action, the bond required to be given by § 5980 of the General Statutes would apply during the period when an appeal from a decision upon a writ of error might be pending in this court. There is, then, no substantial reason why an appeal would not lie from the decision of the Superior Court or a Court of Common Pleas upon a writ of error brought to it in a summary process action and, on the other hand, the allowance of such an appeal would not make for delay but the contrary, and would prevent the cumbrous and expensive process of piling one writ of error upon another.

A practice which has been so uniform over the years since the amendment of 1905 and the practical considerations suggested indicate that the exception of summary process actions in the statute was not intended or understood to apply to a situation where a writ of error has been taken to the Superior Court or a Court of Common Pleas, has there been decided, and it is desired to present to this court the questions of law involved. Rather, the amendment was designed to prevent an initial review of the issues presented upon a trial of a summary process action otherwise than by writ of error, exhausting itself when such a writ had been determined in the Superior Court or a Court of Common Pleas and leaving the...