Woodruff v. Perrotti

• Decision Date: 05 October 1923
• Citation: 122 A. 452,99 Conn. 639
• Court: Connecticut Supreme Court
• Parties: WOODRUFF v. PERROTTI ET UX.

122 A. 452

99 Conn. 639

WOODRUFF v. PERROTTI ET UX.

Supreme Court of Errors of Connecticut.

October 5, 1923

Appeal from Superior Court, New Haven County; James H. Webb, Judge.

Action by Robert J. Woodruff against Dominick Perrotti and wife. Judgment for plaintiff, and the defendant named appeals. No error.

The complaint is in the form of the common counts, and the bill of particulars sets out that the defendants were indebted to the plaintiff for specified legal services and incidental expenses in the sum of $4,000, and, deducting credits for payments amounting to $1,200, claims a balance due of $2,800. The defendant Dominick Perrotti filed a general denial and a second defense alleging that the plaintiff had agreed with him and his agent to render all the services and pay all the expenses in connection with the matters set forth in the bill of particulars for $1,200, which the defendant had paid. The plaintiff in reply denied the truth of these matters. The defendant Carmela Perrotti filed no pleading. The trial court found the issues in her favor, and found the issues in favor of the plaintiff against Dominick Perrotti, and adjudged that the plaintiff recover of him $3,052 damages.

Clayton L. Klein, of Waterbury, for appellant Perrotti.

George E. Beers and Paul H. O'Connor, both of New Haven, for appellee.

BURPEE, J. (after stating the facts as above).

The record shows that the trial judge filed a finding of facts on February 13, 1923; that on February 19, 1923, the appellant defendant filed a motion to correct and add to the finding to which no exceptions nor evidence were annexed, and that on the same day he filed and perfected his appeal, containing an assignment of errors, in which he presented claims for the same corrections and additions to the finding which he asked for in his motion to correct and add to the finding. The record does not disclose that the appellant filed a motion that all the evidence and rulings in the case be made a part of the record on appeal, but it contains a copy of such evidence and rulings apparently certified and filed on February 19, 1923, although no date is indorsed upon it. On February 23, 1923, the trial judge filed a correction of the finding, which did not make any material change, and otherwise denied the appellant's motion. On the same day the finding was refiled.

Upon this record, the appellee suggests that the appellant is trying to take advantage of both of the remedies by appeal provided by the statutes. This he could not do. Hartford-Connecticut Trust Co. v. Cambell, 97 Conn 251, 254, 116 A. 186. But the record does not indicate plainly that he has attempted to do so. It is true that he filed a motion to correct the finding, but it evidently was not adapted to the requirements of the motion which must be made by an appellant who seeks to pursue the remedy provided in General Statutes, § 5829, because no exception nor evidence was annexed to it, nor is any exception assigned as a reason of appeal. General Statutes, § 5830. Possibly the appellant began with the intention of using the first method of appeal; but, if he did, he evidently abandoned it and followed the method provided by General Statutes, § 5832. Hartford-Connecticut Trust Co. v. Cambell, 97 Conn. 251, 254, 116 A. 186. Although it is not stated in the record, as it should be if it was a fact, that the appellant filed with the clerk of the trial court a motion that all the evidence and rulings in the case be made a part of the record, it does appear that a copy of such evidence, duly certified, was made and printed as a part of the record; and we assume that this was done in compliance with the provisions of General Statutes, § 5832. His motion to correct the finding conformed to the best practice if he intended to follow the method prescribed in that section. Hartford-Connecticut Trust Co. v. Cambell, 97 Conn. 251, 254, 116 A. 186. Moreover, accepting the privilege granted in that section, the appellant in his assignment of errors has set out his claims for the corrections and additions he asked for in his motion. The record shows that the appellant, apparently expecting the refusal of the court to make the corrections he desired, perfected his appeal some days before the corrected finding was refiled, and therefore in reality undertook to base an appeal upon a finding which had not been made--that is, upon no finding. Whatever might have been the consequences of this premature action under other conditions, we do not discover that in this instance it was followed by any considerable results. The appellant is fairly entitled to any advantage he may derive from examination of the record as printed, including the statement of the evidence and rulings in the case, under the provisions of General Statutes, § 5832.

It is manifest, and the appellant concedes, that he cannot prevail in his appeal unless this court, upon examination of the entire record, shall correct the finding in at least the most material of the particulars he has specified in his assignments of error. He claims that all of the paragraphs of his draft-finding should be added to the finding. Manifestly this should not be done, because some of these paragraphs contain statements of merely evidential or irrelevant matters, or that no evidence was offered or no claim made concerning certain matters; others set out in the appellant's language facts which the trial judge has stated in his own; and others assert or imply facts at variance with facts found. A finding made up with such additions would be prolix, repetitious, contradictory, obscure, and useless.

The appellant further claims that certain paragraphs of the finding should be struck out. In these paragraphs the trial judge states that the services specified in the bill of particulars were rendered for the benefit of the appellant...