Zamatha v. Harak.

• Decision Date: 01 April 1948
• Citation: 58 A.2d 704,134 Conn. 480
• Court: Connecticut Supreme Court
• Parties: ZAMATHA v. HARAK.

134 Conn. 480

58 A.2d 704

ZAMATHA

v.HARAK.

Supreme Court of Errors of Connecticut.

April 1, 1948.

Appeal from Superior Court, New Haven County; Pallotti and Daly, Judges.

Action by Viola Zamatha against Simon Harak for breach of promise of marriage, brought to the superior court in New Haven county and tried to the jury before Pallotti, J. Verdict and judgment for the plaintiff; subsequently the trial judge died and the defendant made a motion for a new trial which was denied, Daly, J. From this decision, the defendant appealed.

No error.

Edward J. Donahue, of Derby (William F. Healey, of Derby, on the brief), for appellant (defendant).

Charles M. Lyman, of New Haven, and John B. Dillon, of Shelton, for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLIS, and DICKENSON, JJ.

MALTBIE, Chief Justice.

This is an appeal from the denial of a motion for a new trial based upon the fact that the judge who tried the case died after judgment but before an appeal to this court could be perfected. The action was brought to recover damages for breach of a promise of marriage. There was a verdict and judgment for the plaintiff. The defendant obtained an order extending the time within which to file an appeal to this court, but the judge who presided at the trial died before that extension had expired or an appeal had been filed. Thereafter, the defendant filed the motion from the denial of which this appeal is taken. He was attempting to proceed under § 5697 of the General Statutes, of which a copy is inserted in the footnote. ¹ In the motion, the defendant recited the facts stated above and alleged that he had desired to take an appeal and had complied with the rules relating to appellate procedure. The motion then claimed errors in the admission of evidence, to which the defendant had objected and to the rulings on which he had taken exception, in the action of the trial court in allowing counsel to present an improper argument to the jury and in failing to instruct them to disregard it, in a failure adequately to charge the jury as to damages in general, and in one particular respect pointed out with some definiteness. The allegations as to the rulings on evidence were in general language, in no way complying with the method in which such rulings are required to be presented on an appeal to this court. Practice Book § 359. No transcript of the evidence, in whole or in part, no statement of the arguments of counsel and no copy of the charge were attached to the motion. A demurrer to it was overruled. At the hearing the trial court denied it, without memorandum.

We have no rule which states the procedural requirements for a motion under § 5697. We have never had such a rule concerning a petition for a new trial for newly-discovered evidence under § 5701 of the General Statutes; but in a long line of decisions, beginning with Parsons v. Platt, 37 Conn. 563, a definite practice has been established. It requires that the application ‘must allege and set forth the evidence produced upon the former trial, together with the newly-discovered evidence, in order that the court may see whether injustice has probably been done, and whether the newly-discovered evidence is likely to reverse the result.’ Gannon v. State, 75 Conn. 576, 578, 54 A. 199; Kliarsky v. Eastern Greyhound Lines, Inc., 116 Conn. 649, 651, 166 A. 65. Such a requirement has its basis in two principles inherent in our procedure: The first is that in any action the complainant is required to set forth facts upon the basis of which, if true, he may be able to establish in law a right to relief, for, unless that is done, the pleading is demurrable, City of Waterbury v. Connecticut Ry. & Lighting Co., 86 Conn. 180, 188, 84 A. 723; and the second requirement is that a pleading must fairly apprise the court and the adverse party of the claims to be made. Volpe v. Gunder, 129 Conn. 14, 17, 26 A.2d 13.

These principles, in the absence of any rule, apply to motions for relief under § 5697. Such a motion might come before a judge other than the one who tried the case. To be adequate and proper, it must contain allegations sufficient to show that the party making it might be able to establish his right to the relief provided in the statute and fairly to inform the court and opposing counsel of his claims. If the ground for relief alleged is a ruling on evidence, the motion should state the facts claimed by him to have been proved or, if the trial was to the jury, the facts each party has offered evidence to prove and claimed to have proved, so far as necessary to give a sufficient basis for understanding the significance of the ruling, and the statement of the ruling itself should conform to that required in presenting similar claims to this court on appeal. If the claim of error is, in a jury case, as to a charge or failure to charge, the motion should in general contain allegations similar to those necessary to present like claims of error to this court. Such requirements are, indeed, implied in the...