136 A. 575 | Conn. | 1927
The appeal contains assignments of error based upon rulings on evidence and exceptions to the failure to find, and in the finding of, certain facts; the additional reason of appeal contains a single assignment of error, the denial of the plaintiffs' motion for a new trial.
We consider, first, the denial of the plaintiffs' motion for a new trial. In our practice such a motion is sometimes denominated a motion and sometimes a petition. The facts upon which plaintiffs based their motion for a new trial were, that the official stenographer who had taken down the testimony offered *714 upon the trial had deceased prior to the filing of the finding by the trial judge, that the notes of the stenographer cannot be transcribed, that the trial judge is unable fully and fairly to set forth the testimony, and in consequence the plaintiffs have been unable to comply with the rule that requires a transcript of the stenographer's notes to accompany exceptions to the refusal of the trial court to correct the finding. The trial court reached the conclusion, that the plaintiffs having prosecuted their appeal and made the refusal of the trial court to correct the finding a ground of appeal the motion should be denied, and that the claim of law that the plaintiffs were entitled to a new trial should be overruled, and rendered judgment in favor of defendant. The judgment was right, though the method of reaching it would be difficult to justify.
A motion or petition for a new trial, while not an independent action, but a proceeding ancillary to the original action in which the judgment sought to be relieved against was rendered, is to be determined upon its own issues and regardless of those raised by the appeal from the judgment on the merits. When both are taken at the same time, we see no legal or practical reason why one appeal should not include the claimed errors made by the trial court, and the claimed error made by the trial court in the denial of the motion or petition for a new trial. Our statute authorizing the granting of new trial was enacted in 1762; the statute was continued in substantially the early form as late as in § 199 at page 41 of the Revision of 1866, viz.: "The Superior Court shall and may from time to time as occasion may require, and as by it shall be judged reasonable and proper, grant new trials of causes that shall come before it for mispleading, or discovery of new evidence, or for other reasonable cause, according to the common and usual rules and *715 methods in such cases." Our statutes also included from an early time the provision found in the Revision of 1866, at page 390: "Sect. 9. Courts of equity may grant new trials for newly discovered evidence, or any other reasonable cause, according to the course of proceedings in equity."
We announced the rule of equity in Day v. Welles,
In the next Revision of the statutes, that of 1875, § 1, at page 447, the revisers — evidently in the interest of brevity and because they were of the opinion that the right of a court of equity to grant new trials was inherent in the court, and every power of that court to grant new trials not expressly found in the statutes was included in the clause, "or other reasonable cause, according to the usual rules in such cases" — shortened the provision in use prior to this time and omitted the statute authorizing courts of equity to grant new trials. There was added in the Revision of 1875 to the two specified causes — "mispleading, or the discovery of new evidence," another cause, — "want of actual . . . opportunity to appear and defend, when a just defence in whole or part existed." In Smith v. Hall,
In Etchells v. Wainwright,
The death of the stenographer, as in the case of the judge, if it prevented the plaintiffs from having their fair opportunity to have their case heard on appeal, is an equitable cause and within the "reasonable cause" specified in General Statutes, § 5850; if this were not so, the power would have been inherent in the Superior Court as a court of equity to grant a new trial for such a cause. The power will only be exercised in an appropriate case, that is, where the allegations made, and the facts found, bring the case within the recognized limits of the court's authority. The conclusion reached by the court — that the plaintiffs, having made the refusal of the trial court to correct the finding a ground of appeal, a new trial could *720
not be granted — cannot be supported. The granting of a new trial must stand upon the facts proven and they must bring the remedy within the classes of grounds recognized by our law. A new trial will not be granted when the newly-discovered evidence would not change the result. Selleck v. Head,
The new trial is desired in this case in order to enable the plaintiffs to file a transcript of the stenographer's notes to accompany exceptions to the refusal of the court to correct the finding. What effect the corrections will have upon the case is not found, nor are any facts found that apprise us of the importance of these corrections. The finding does not present a case upon which a court of equity could grant a new trial, nor did the allegations of the motion.
Two letters addressed by Mr. Klein, attorney for Mrs. Dudley, to Mr. Carmody, attorney for Mrs. Hull, the defendant, during the pendency in July and August, 1920, of the action brought by Mrs. Hull against her mother to set aside the conveyance of her father's interest in the farm to her mother, were offered in evidence for the purpose of showing the state of feeling of Mrs. Dudley for her daughter at that time by certain statements therein of matters which had been stated to Mr. Klein by Mrs. Dudley. It does not appear that Mrs. Dudley either authorized, or subsequently ratified, the making to Mr. Carmody of such statements on her part; so far as the record discloses the statements were mere hearsay. Aside from *721 that, we could not say from the condition of this record that they were likely to have affected the making of the conveyance. Error will not be predicated upon a ruling on evidence unless the record shows that the ruling was material to the conclusion reached.
Dr. Cooley — the physician who was present when a will was prepared by Mr. Davis in the presence of Mrs. Davis — his wife, later Mrs. Dudley — at St. Luke's Hospital in New York — testified, against the objection and exception of the plaintiffs, that there was then "an understanding that the property would go to Minnie, (the defendant) the daughter, after Mrs. Dudley's death." This time was about the time when Davis conveyed to his wife his interest in this farm. The evidence was admissible as tending to show that Mrs. Dudley, in conveying this farm to her daughter, was carrying out the understanding reached with her husband in St. Luke's Hospital. The administrator was permitted to testify as to the amount of the claims and the amount of cash from the conversion of all of the assets of Mrs. Dudley's estate as one of the circumstances surrounding these parties and the making of the conveyance to Mrs. Hull. This evidence was admitted as one element of the circumstances surrounding the transaction in suit, but excluded as tending to show that the conveyance was fraudulent as against creditors, or that the estate was bankrupt. The ruling was right, except that this evidence was admissible as tending to show the unlikeliness that Mrs. Dudley would convey away the property needed to meet her funeral expenses, the expenses of her illness and outstanding claims. The limitation placed upon the admission of this evidence would not prevent this evidence being considered for the purpose for which we hold it to be admissible; we know of no other purpose for which it could have been used and *722 we assume this must have been the ultimate purpose for which it was admitted, and for which it was used. Further, we could not hold, upon the record, that this evidence, if erroneously admitted, was a harmful error.
There is no error.
In this opinion the other judges concurred.