59 Conn. 213 | Conn. | 1890
This was an application to the Court of Common Pleas in New London County for a mandamus, claiming that the defendant, who was a justice of the peace in that county, should be required to change the record of a certain case decided by him as such justice of the peace. The record which it is alleged should be changed is as follows :—
“George L. Chesebro of Stonington, Ct., vs. J. Clark Crandall of Westerly, It. I. New London County, December 10th, 1888. Before Charles H. Babcock, Esq., Justice of*215 the Peace. This action by complaint claiming an account and $100 damages, which writ was returnable the 25th day of August, A. D. 1888, came before me, said justice of the peace, holding court on the day last mentioned at the place aforesaid, and thence by legal continuance to the 10th. day of December, A. D. 1888, when and where the parties appeared; and the defendant demurs to the complaint be-< cause it sets forth in but one count two separate and distinct causes of action, namely, one for breach of contract and. one for trespass. Pending the decision of the court on the' demurrer, the defendant submitted to the judgment of the said court and appeals to the Court of Common Pleas. Whereupon it is adjudged by this court that the plaintiff recover of the defendant $100 damages and his costs, taxed at fourteen dollars and ninety-one cents. The defendant' appeals from this judgment to the Court of Common Pleas to be holden at New London in said county on the first Tuesday of February, A. D. 1889. And the defendant as principal, and James A. Peabody of Stonington as surety, are recognized to the adverse party in the sum of $50 to’ prosecute his appeal to effect.”
The averment in the application is that “ said judgment' for said plaintiff was rendered and said justice court was adjourned sine die on the 10th day of December, 1888, and said pretended appeal and said pretended appeal bond were taken by said Crandall on the 29th day of January, 1889.” The prayer of the application is “ that the said Charles ID Babcock be required to make his record of said case accord-! ing to the fact, showing that said judgment was rendered and said justice court adjourned sine die before the taking of said pretended appeal and said pretended appeal bond,, or signify cause to the contrary, etc.”
The facts of the case as found by the Court of Common Pleas are these:—The defendant was a justice of the peace for New London County residing in the town of Stonington. The plaintiff brought his certain complaint, against one J. Clark Crandall before the defendant as said justice of the peace, demanding one hundred dollars damages, and
We think there is no error in the judgment of the Court of Common Pleas. The allegation in the complaint that the justice court was adjourned sine die on the 10th day of December, 1888, is not supported by the facts. It is not true that the justice court was adjourned sine die on that day. On the contrary, it was not adjourned at all on that day, but was intentionally kept open. It is argued on the part of the plaintiff that such a keeping open of a justice court without an adjournment to a day certain is in legal effect an adjournment sine die. If this be granted it does not aid the plaintiff. He has alleged it as a fact that the justice court was adjourned sine die on the day named. As a fact it is not true. The statement of a conclusion of law is not the statement of a fact; it is not pleading. Bliss on Pleading, § 210. “ Matter of law is never matter to be alleged in pleading. No issue can be framed upon an allegation as to the law. Facts only are pleadable, and upon them without allegation the court pronounces and applies the law.” The People ex rel. Purdy v. Commissioners of Highways, 54 N. York, 276. If the plaintiff had desired to avail himself of a conclusion of law he could have done so readily by alleging the precise facts from which the conclusion followed. A party can have the benefit of such conclusions of law only as follow from the facts he has alleged. Besides, the defendant had the right to have the precise facts appear on the record, that he might deny them, and that the question whether they raised the conclusion might be reviewed. For these reasons the application was property denied.
But there is another reason. The granting or refusing a mandamus is a matter resting in the sound discretion of the court and the exercise of that discretion is not the subject of revision on appeal. If we had the right to review the action of the court in the present case we should be of opinion that its discretion was properly exercised in denying
There is no error.
In this opinion the other judges concurred.