80 A. 581 | Conn. | 1911
The charter of the city of Hartford provides that any party aggrieved by a final judgment or decree of the City Court, in any cause in which the matter in demand exceeds $500, "may appeal therefrom to the Superior Court to be held at Hartford, upon giving such bond as said City Court may order." 14 Special Laws, p. 602.
The defendant in this case appealed to the Superior Court from a judgment against him in the City Court of Hartford, and the plaintiff in the Superior Court filed a plea in abatement of the appeal upon the ground that the City Court did not order any bond or fix the amount of the bond to be given upon the appeal, and that no bond ordered by the City Court was given on the appeal. It appears from the finding that after giving notice of appeal in the City Court, the attorney for the defendant asked the clerk of that court the practice in giving bonds on appeal to the Superior Court, and was told that $100 was the usual amount of such bond, and that he (the attorney) could give such bond at any time. The attorney thereupon gave bond by himself recognizing in that amount, and the clerk later furnished him with certified copies of the record which were filed in the Superior Court. This conversation *460 with the clerk and the giving of the bond took place in the latter's private office and not in court. It is found that the City Court did not order any bond upon the appeal; that there was no established custom or practice relating to the giving of bonds upon appeals from that court to the Superior Court; and that the court had made no standing order or rule relating to the amount of the bond to be given on such appeals. As the case was tried upon a denial of the allegations of the plea, the finding is conclusive upon the defendant unless the bond given as described in the finding is to be held to be a bond ordered by the court. If it is, the conclusion of the Superior Court was wrong.
Since the organization of the city of Hartford there has been a City Court, and a right of appeal from its judgments to the Superior Court has always existed. Prior to 1905 nothing was said in the charter concerning the bond to be given. Until 1859 the charter provided that the appeal was to be upon the same terms as appeals from the County Court to the Superior Court. The general statutes provided that on appeals from the County Courts to the Superior Court "satisfactory security" should be given. In a revision of the charter passed in 1859, after the County Courts had been discontinued, the appeal to the Superior Court was still allowed, and nothing was said as to the terms upon which it should be allowed. This continued until the present provision was made in 1905 in an Act concerning the City Court of Hartford. 14 Special Laws, p. 600. By this Act an appeal to the Superior Court is allowed only in cases where the matter in demand exceeds $500, and the former provision relating to appeals, which had allowed an appeal when the matter in demand exceeded $100, is expressly repealed.
The taking of the recognizance and allowing the appeal are clerical, not judicial, acts. Spencer v. Broughton, *461
While it is found that there was no established custom or practice relating to the giving of bonds on appeal in the City Court, there is such custom and practice in the other courts, of which we take judicial notice. The charter does not prescribe the duties of the clerk of the City Court otherwise than that they are the same as those of the Superior Court. We think that the charter in the provision referred to intends by "such bond as said City Court may order" such bond as either the judge of the court, or the clerk acting under his orders in pursuance of the established practice, shall order, either when the court is in session or otherwise, and that the fixing and taking of the bond in *463 question, no application to the judge to order a different one having been made, was a compliance with that provision, and should have been so held by the trial court.
There is error and a new trial is ordered.
In this opinion the other judges concurred, except WHEELER, J., who dissented.