Whitford v. Lee
| Decision Date | 07 July 1922 |
| Court | Connecticut Supreme Court |
| Parties | WHITFORD v. LEE. |
Appeal from Superior Court, Litchfield County; William M. Maltbie Judge.
Action by Rufus H. Whitford against Ada Strong Lee to recover damages for disturbance of a way and for slander of title thereto, to cancel certain instruments as a cloud on title to ascertain and declare the title of plaintiff in and to the way, and for an injunction restraining interference by defendant with the use of the way by plaintiff and others. Facts found, and judgment rendered for defendant, and plaintiff appeals. Error, and new trial ordered.
This action was heard by the court at the June term, 1920, in Litchfield county, and was retained by the trial judge for consideration until July 19, 1920, when he filed a memorandum of decision covering certain issues arising upon the pleadings, and containing an order continuing the cause for further action by the court until the next term thereof.
This provision was enacted in 1909, and was in force during the pendency of this action.
Taking judicial notice of the allotment of judges of the superior court for Litchfield, it appears that the October term of the court for Litchfield county was held by Warner J., and not by Maltbie, J.
The finding further states:
The trial judge proceeded with the hearing, additional testimony was introduced, and additional findings made, which were embodied in a second memorandum and in the judgment file. Judgment for the defendant to recover costs was rendered by judgment file dated January 3, 1921.
Leonard J. Nickerson, of Cornwall, and Frank B. Munn, of Winsted, for appellant.
Howard F. Landon, of Salisbury, and Samuel A. Herman, of Winsted, for appellee.
The plaintiff claims upon the facts above recited that the October term of the court had expired by express limitation of the statute, and was not in session, and could not lawfully be in session, on December 21, 1920, when the trial judge resumed the hearing of the cause, nor on January 3, 1921, when judgment was rendered; that in consequence of the provisions of G. S. 1918, § 5524, which provides that a judge who shall have commenced the trial of an action " shall have power to continue such trial and render judgment after the expiration of the term or session of the court at which such trial commenced; but such trial shall be ended and judgment rendered before the close of the next term or session," the time had expired in which the trial judge could continue the trial of the action and render judgment therein.
The defendant contends that, notwithstanding the words of the statute, the October term could, at the discretion of the judge holding the same, be continued for the trial of causes until the commencement of the next term fixed by statute on the first Tuesday in February. Prior to the enactment of the statute now in force, section 5524, above cited, a term of court might legally be continued or adjourned until the commencement of the next term in the county where held, and no longer. Jaques v. Bridgeport Horse Railroad Co., 43 Conn. 32. Also a judge could hold a case under advisement for decision after the close of the term, but for that purpose only. Sturdevant v. Stanton, 47 Conn. 579. Both of these matters are now regulated by the statute last noted, and it has been held that only by consent of all parties can a judgment be rendered except as therein provided. Lawrence v. Cannavan, 76 Conn. 303, 56 A. 556; Cheshire Brass Co. v. Wilson, 86 Conn. 560, 86 A. 26.
It is not claimed by the defendant that the trial judge was holding a special session of the court either by agreement of the parties or upon 20 days' notice as provided in G. S. 1918, § 5453, but she bases her contention upon the October term, 1920, being still lawfully in session, and that it might be lawfully in session until the term commencing in February, 1921, and that the statute of 1909, above referred to, had not altered the law in this regard. The objection to this view is that the construction gives the act of 1909 no force whatever as to the words relating to the closing of the session on Friday preceding the first Tuesday of December. It leaves the situation just where it was before the enactment of the present law. Prior to the enactment of the statute of 1909, the provision for civil sessions of the superior court in Litchfield county is contained in G. S. 1902, § 452, and reads as follows:
" In the county of Litchfield, at Litchfield on the first Tuesday in October, at New Milford on the first Tuesday of April, and at Winchester on the first Tuesday in February and June," etc.
Pursuant to the provision of the statute last quoted, and having regard to the existing law as above set forth as to the continuance and length of sessions of the court generally, where no time is set for the ending of the session, the judge presiding at the session might in his discretion close and adjourn the same when the business brought forward had been completed, or he might continue to sit until the beginning of the next session held on the first Tuesday of February following. It is contended by the defendant that such judge may still do so. It is certainly then incumbent upon her to furnish some construction of the present statute which does not leave the provision for the ending of the session meaningless. An attempt to furnish such a construction is made by claiming that the mischief which the new statute was intended to obviate was the premature adjournment of the session, under the provisions of the earlier law, before all business ready for action had been transacted, and that the statute was intended to give the judges at their annual meeting an opportunity to allot judges so that one of their number might always be available for service in Litchfield county, at least until the Friday preceding the first Tuesday of December. This object is undoubtedly accomplished by the Act...
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Borden v. Town of Westport
...of the delay, it will be assumed that the parties consented to it. Lawrence v. Cannavan, 76 Conn. 303, 306, 56 A. 556; Whitford v. Lee, 97 Conn. 554, 557, 117 A. 554; Cheshire Brass Co. v. Wilson, 86 Conn. 551, 560, 86 A. The plaintiff claims to have acquired title to a certain tract of lan......
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Borden v. Town of Westport
... ... 17. We ... point out that a judgment rendered under these circumstances ... is irregular but not void. If no timely and appropriate ... advantage is taken of the delay, it will be assumed that the ... parties consented to it. Lawrence v. Cannavan, 76 ... Conn. 303, 306, 56 A. 556; Whitford v. Lee, 97 Conn ... 554, 557, 117 A. 554; Cheshire Brass Co. v. Wilson, ... 86 Conn. 551, 560, 86 A. 26 ... The ... plaintiff claims to have acquired title to a certain tract of ... land on the shore of Long Island Sound in the town of ... Westport, through a certain line of ... ...
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