In re Shelton Street Railway Co.

70 Conn. 329 | Conn. | 1898

Hamersley, J.

A general appearance is not, of itself, a waiver of the right to object to a defect in the process. Payne v. Farmers and Citizens' Bank, 29 Conn. 415, 416; Hotchkiss' Appeal, 32 id. 353, 355.

The other facts stated in the answer set forth the same matters of record referred to in the demurrer to the plea; and their allegation is, in substance, a claim that upon the face of the record the plea in abatement is insufficient.

The ajppeal to this court is a process whose form and requirements are fixed by statute. These provisions must be strictly complied with in order to properly perfect an appeal. White v. Howd, 66 Conn. 264, 266. The statute says that the appeal must state the time and place of holding the court to which the appeal is taken. Public Acts of 1897, Chap. 194, § 13. This appeal states neither time nor place; it is taken to “ the Supreme Court of Errors,” without any specification of a term.

The appellants, however, claim that this requirement of the statute is a mere matter of form; that it is apparent from the record that the present term of this court is the only one to which the appeal could by law be taken, and therefore it must be regarded as in fact taken to this term; and that the defect is cured by § 1000 of the General Statutes. This claim rests on the assumption that the term of court to which this appeal should have been taken, is determined by § 2 of the Act and not by § 22. The provisions of these sections are distinct and different. The former affects appeals from judgments rendered at a regular session of the Superior Court, and requires the appeal to be taken to the term to be held next after the filing of the appeal in the j udicial district or county where the judgment was rendered; while the latter affects appeals from judgments rendered by a judge exercising the power of that court in chambers, and requires the appeal to be taken to the term “next to he held in the judicial district or county where the parties or any of them reside.” This appeal is controlled by the provisions of § 22. No other Act authorized it. The parties resided in different counties. The statute is so phrased as to give some ground at least, for the claim that the appeal might have been taken to the next term held in New Haven county, or to the next term held in Fairfield county. The appellee in a case of this description is not hound to construe the statute at his peril; that duty rests on the appellant. ISTo appeal could he taken in this cause until the appellants designated the term to which they appealed. The failure to state the time and place of holding the court in this appeal is therefore a substantial defect.

That a defect of this nature may be taken advantage of by a plea in abatement, is not an open question. Phelps v. Norton, 35 Conn. 327; Redfield v. Buck, ibid. 328, 333; Comstock’s Appeal, 54 id. 116; Pitkin v. New York & N E. R. Co., 67 id. 19; Montville Street Ry. Co. v. New London N. R. Co., 68 id. 418. See also Chipman v. Waterbury, 59 id. 496.

Section 31 of the Act, and Chap. 135 of the Public Acts of 1897, relate to the manner of perfecting appeals taken under § 22, but do not control the term to which such appeals shall be taken.

The plea in abatement is sustained and the appeal dismissed.

In this opinion the other judges concurred.