24 Conn. 140 | Conn. | 1855
The statute, authorizing appeals from decisions of courts of probate, provides that all persons present, of full age, “ shall appeal to the next superior court, and not afterward.” Stat. 1854, p. 280. Brewster, the appellant in the present case, was present on the 15th of January, 1855, when his application was dismissed by the court of probate, and on the 26th day of February following, took an appeal to the superior court, holden on the fourth Tuesday of January, 1855. The question arising upon these facts is, whether thé appeal was taken to the next superior court, within the meaning of the statute authorizing the appeal.
In one of our earliest reported cases, it was holden by the superior court, that an appeal from a judgment of a justice of the peace, could not be taken to an adjourned term of the county court. Fellows v. Carpenter, Kirby, 364. And the
The same principle was recognized by the supreme court of Massachusetts. Commonwealth v. Sessions of Norfolk, 5 Mass. R., 435.
In a more recent case, this court held that, in view of the long practice which had prevailed in this state, an original suit might be brought to an adjourned term of the court. But the decision was placed entirely upon the ground of such long continued practice, which could not be disturbed without shaking the foundations of many titles. Hawley v. Parrott, 10 Conn. R., 486.
But in a still later case, it was holden that this exception to the general rule, did not apply to appeals from decrees of a court of probate, and that they could not be taken to an adjourned term of the superior court, as neither the statute, nor any practice, authorized them, to be so taken. Leavenworth v. Marshall, 19 Conn. R., 1.
If an appeal from a decree of a court of probate can not be taken to an adjourned term of the superior court, upon the ground that such term and the regular term, in contemplation of law, are but one term, it would seem to follow, as a necessary consequence, that an appeal can not be taken to any day of the court, subsequent to its commencement.
It is true, in the present case, that the appeal was not, in form, taken to a day in the term subsequent to that prescribed in the statute for holding the court; but such was its effect, as it was taken long after the term commenced, and it would be absurd to hold that it might be taken to a court, the session of which had passed.
The true rule, in our opinion, was given by the court, in the case cited from Kirby’s Reports. The expression, “next
It is further said, that Cowdrey and Laurie • were not proper parties to the proceeding, and had no right to appear and plead as they did. The object of Brewster’s petition was to have a trustee appointed,' to take possession of Shelton’s property, for the benefit of his creditors. The effect of the application, if granted, would be to dissolve their liens, acquired by their attachments. They therefore had an interest in the protection of their liens. They accordingly appeared before the court of probate, for the purpose of showing that the proceedings of Brewster were commenced and carried on, with a fraudulent design, to injure them, and the creditors of Shelton generally. They therefore had an interest in the subject matter before the court, and had a right to be heard thereon.
Besides, Brewster, when he entered his appeal, obtained an order of notice, making them parties to the proceeding, under which they appeared and defended, as we think they had a right to do.
We are therefore of opinion, that there is no error in the judgment of the superior court, , dismissing the appeal.
In this opinion, the other judges, Stores and Hinman, concurred.
Judgment affirmed.
