Finch v. Ives, 24 Conn. 387

Finch v. Ives

24 Conn. 387 | Conn. | 1856

Hinman, J.

This is a motion in error from the judgment of the superior court. The original action was brought before a justice of the peace, and appealed by the defendánt to the county court. After several continuances, in that court, it was, on motion of the plaintiff, erased from its docket, on the ground that the appeal was irregular. At the October term of the superior court, in 1852, this judgment of the county court was reversed, on the defendant’s motion in error, and, thereupon, judgment was rendered in his favor, to recover costs, on his motion in error. The original action was then entered in the docket of the superior court, for trial, pursuant to the statute, p. 106, Ed. 1854, authorizing such entry, when a judgment is reversed on a principle not inconsistent with the further prosecution of the action. The cause, thus entered, was then continued to the October term 1855, when it was finally heard and determined, on its merits, in favor of the defendant. The original plaintiff now brings his motion in error, before this court, claiming that he is aggrieved, by the judgment of the superior court, in 1852, in rendering judgment against him for costs, on the reversal of the judgment of the county court.

More than three years had elapsed, after the rendition of the judgment complained of, when the present motion in error was filed; and our statute of limitations, Stat. Ed. 1854, p. 649, § 9, enacts, that “ no writ of error shall be brought, for the reversal of any judgment, after the expiration of three years from the time of rendering such judgment.” But the plaintiff'claims that the judgment, rendered in 1852, was not a final, but was an interlocutory judgment, in the original action; and, therefore, as no writ of error, or motion *390in error will lie, until after final judgment, the statute did not begin to run against his right, until after the final judgment in the cause, in 1855. It is true, undoubtedly, that writs of error, and motions in error, cannot be commenced until after final judgment; because it cannot till then be known, that an interlocutory judgment will prejudice a party; Magill v. Lyman, 6 Conn, R., 59: White v. Trinity Church, 5 Conn. R., 187. It is not claimed that there is any distinction, except in the form of proceeding, between writs of error, and motions in error. Motions in error are more convenient, and less expensive, than writs of error, but the statute, by which they are allowed, provides, that they shall be proceeded with in the same manner. Stat. Ed. 1854, p. 106. They are, in effect, therefore, writs of error, not required to be served on the opposite party, in any other way, than by the mere filing of the motion within twenty-four hours after final judgment, of which the opposite party, being supposed to be present in court, is bound to take notice, at his peril. If, then, judgment' on a writ of error is a final judgment, it follows that judgment on a motion in error must be held to be final. But a writ of error is an action, brought to relieve a party who has been aggrieved by an error, in the foundation, proceeding, judgment, or execution of a suit; Co. Litt., 289, b. It has all the characteristics of an action. It is brought by a writ, the signing and allowance of which is regulated by statute. It is accompanied, as all writs are, in Connecticut, by a declaration setting forth the record, and the error therein complained of. It must be served and returned to court, like any other writ; and there, it is entered in the docket, answered to by plea, and the issue upon it tried, and judgment is rendered upon the issue, like any other action. It is true, that, by statute, if a judgment is reversed, on a principle not inconsistent with the further prosecution of the original action, that action may, on motion, be revived, and retried; and when this is done, it has, in this respect, an effect similar to the effect produced by a petition, or motion *391for a new trial. But this is superadded, by statute, to its ordinary effect. It no less effectually disposes of the original judgment, because, in some cases, the original action may be revived. Besides, it is not the object of the writ to grant a new trial. That is accomplished by the reversal, or affirmance, of the judgment complained of; and the new trial is a collateral incident of the reversal, provided for by statute, in order to save the expense and delay of another suit, on the same cause of action. The judgment for costs in 1852, on the plaintiff’s motion in error, was, therefore, a final judgment; and being final, it follows, that it is too late now to review it. Besides, this being a motion, and not a writ of error, it ought to have been filed at the October term, 1852. On these grounds, therefore, it must be dismissed.

On the merits of the motion it is not necessary to make a decision. But if there was error in rendering judgment for cost, in 1852, it is quite clear that it can work no injury to the plaintiff now. The defendant, having since obtained final judgment in the original action, by the terms of the statute, is entitled to the costs then taxed, and the costs on that motion will not again be taxed in his favor, unless the former judgment is cancelled.

In this opinion the other Judges, Storrs & Ellsworth, concurred.

Judgment affirmed.