153 A. 166 | Conn. | 1931
This proceeding is supplemental to the action of Levitt v. Attorney-General, which came *588
before this court by appeal and the opinion in which will be found in our reports, volume 111, page 634,
The form of the petition made it somewhat difficult for the defendant and the trial court to determine its real nature, but the Attorney-General claims that it is *590 in effect a petition for a new trial under § 5701 of the General Statutes. This statute gives the Superior Court power to grant a new trial of any cause "for mispleading, the discovery of new evidence, or want of actual notice of the suit to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or in part existed, or for other reasonable cause, according to the usual rules in such cases." Reduced to its essence the petition sets up that by reason of the pleadings in the trial of the first action and the scope of the questions presented to the trial court for decision, judgment was entered against the Attorney-General without any adjudication upon one of the vital issues involved in it, that is, that the allegations in the request to him were manifestly untrue, and that if he is permitted to present that issue, he can show this to be so and thus that the judgment has failed to do justice between the parties.
Upon the former trial the present defendant claimed that upon the presentation of the request the Attorney-General had no discretion save to bring a complaint under the statute concerning the removal of public utilities commissioners, while the Attorney-General claimed that he had "a discretion to investigate the claim alleged in the petition and determine whether probable cause for removal exists justifying the filing of a complaint by him" (
In an action at common law between individuals, a petition seeking a new trial in a similar situation would clearly present a case for adjudication by the court under the statute concerning the granting of such trials. Of this statute we have said: "Several causes are enumerated, and then follows the general clause, which, according to a familiar rule of construction, was intended to embrace other causes only of the same general character. The causes enumerated result from mistakes or accidents, and show that the party has been deprived of some right or privilege that the law intended he should have. They relate to the merits of the case and indicate a probable failure of justice."Brown v. Congdon,
Unless the motion to dismiss, then, sets up some further ground sufficient upon the face of the proceedings to prevent any action by the court, it has no proper place in the determination of the case. The principle of res adjudicata as such clearly was not involved, for a petition for a new trial under the statute is not an independent proceeding but one ancillary to the original action and "the finality of a judgment does not preclude the court that rendered it from entertaining further proceedings in the same action, when it is made *592
apparent that injustice has been done." Gannon v.State,
As to the other grounds alleged in the motion to dismiss, we held in our opinion in the original action that the trial court properly issued a peremptory writ of mandamus upon the issues presented to it, but it does not follow that a contrary result might not be reached should a new trial be ordered, and a refusal to issue the writ upon the situation then proved might be a proper exercise of the discretion of the court. There is nothing in the statute which forbids the Attorney-General from instituting the present proceeding. We cannot say upon the face of the pleadings that they are vexatious and frivolous or attribute to the Attorney-General improper motives in instituting a proceeding which the law permits.
The motion to dismiss should have been denied. There was no occasion to file the motion to strike it out, as its sufficiency could be determined in a hearing held upon it, but as the trial court denied the motion to strike out, there is no occasion to consider it further.
There is error, the judgment is set aside and the cause remanded to be proceeded with according to law.
In this opinion the other judges concurred.