Calhoun v. Porter

21 Conn. 526 | Conn. | 1852

Ellsworth, J.

The two questions reserved for our advice, are, first, whether the record of the county court, as perfected by the clerk, is admissible in evidence; and secondly, if so, are the facts of the case sufficient to entitle the plaintiffs to recover.

We do not hesitate to answer both questions in the affirmative.

, As to the first, it was the duty of the clerk to perfect the record, by inserting the costs, taxed and allowed. Nothing is more common, or unobjectionable. The judgment is considered as rendered during the sitting of the court, and the record speaks from the first day of the term, although the exact amount of costs be inserted afterwards.

As to the second point, it is agreed, that the appeal was illegally taken, and must therefore be wholly inoperative. No appeal lies from a judgment on an award of auditors. Stat. 108. § 205. Bowers v. Gorham, 13 Conn. R. 528. The judgment of the county court always remained in full force, and execution could have, at any time, been taken out to obtain satisfaction. The entry of the cause in the superior court, upon presenting copies to the clerk, could not confer jurisdiction upon the superior court, to entertain the appeal. The court had no other course to pursue, upon learning the truth of the matter, whether on motion or otherwise, than to order it stricken from the docket. Had the appellants wanted a further order, that the cause should be reentered in the county court, they would, of course, on request, had it granted. The statute was made entirely for the benefit of the appealing party; and if they do not request an order, the other party is not to suffer, by that omission. As the plaintiffs had a good judgment, which is still unsatisfied and remains in force, they are entitled to recover, at the present time. Commonwealth v. Messenger, 4 Mass. R. 462. Campbell v. Howard, 5 Mass. R. 376. Latham v. Edgerton, 9 Cowen, 227. 2 New-Hamp. 223. An appeal allowed according to law, and duly taken, undoubtedly annuls the judgment of the court; but it must be allowed and taken according to law; for if not, it has no effect whatever, as, in legal estimation, it is as if nothing had been done. And it would be strange, indeed, if the party appealing, where no appeal can be had, should first induce the court to attempt what it cannot do, and then, when the appeal is rejected in the higher court, could sit silently by, and not ask that the cause may be remanded, and then complain that they are dealt by contrary to law!

We therefore advise, that judgment be rendered for the plaintiff.

In this opinion the other judges concurred.

Judgment for the plaintiff.