34 Conn. 266 | Conn. | 1867
This case was tried to a jury before a justice of the peace, a verdict was returned in favor of the defendants, and judgment rendered for them to recover their costs, on the 18th day of February, 1867. On the 25th day of the same month, without any adjournment of the court to that day, the plaintiff moved for an appeal to the superior court, which motion was allowed. The defendants now plead in abatement to the. appeal on two grounds. 1. That the .judgment before the justice was for less than thirty-five dollars, and consequently the statute of 1866 denies the right of appeal. 2. That at the time the appeal was allowed the court that tried the cause had ceased to exist, and therefore the justice had no power to allow the appeal. To this plea there is a demurrer.
One question raised and discussed in this case was settled by this court in the case of Curtiss v. Gill, ante, page 49. We there held that the word “judgment,” as used ifi the statute, was limited to the debt or damages, and did not include costs. The question is now presented, whether the
It is unnecessary for us to determine this question, as we are all satisfied that the appeal must be dismissed for the second cause stated in the plea in abatement. It has been the uniform understanding of the profession that an appeal from the judgment of a justice of the peace must be taken while the court which rendered the judgment remains in session. And such has been the practice. If, after the judgment is rendered, the parties and the justice separate, without any adjournment, and without any notice of an appeal, the right to an appeal must be considered as waived. In this case judgment was rendered on the 18th day of February. There was no adjournment of the court to a given day, and no notice given of an intention to appeal. One week afterwards the parties were together for another purpose, when the plaintiff moved for an appeal, and the justice allowed it. We think it was too late. If an appeal may be allowed one week or one day after the final adjournment of the court, we see no reason why it may not be allowed at the expiration of a month, or even a longer period of time. Meanwhile the successful party may have taken out an execution, and, after collecting it, or while attempting to do so, may find that the judgment on which it rests has been vacated by an appeal. The evils resulting from such a practice are too obvious to require discussion.
It was suggested that the court will presume an adjournment from the mere fact that the justice allowed the appeal; We see no ground for. such a presumption. The proceedings of a justice court are recorded. If there was an adjournment in fact, why does not the record show it ? If it stated that a court was held on the day the appeal was allowed, we might, perhaps, presume an adjournment. But in the absence of any such statement, there being no allusion to an adjournment, the presumption is that there was none. An adjournment cannot be inferred from the fact that the parties
In addition to this, the allegation of the plea is, “ that said appeal was moved for and allowed a long .time after said case was closed and finished by said justice and said judgment rendered, and a long time after the right to appeal had elapsed and expired, to wit, one week after said case had been closed by said justice, and said judgment rendered, and such right to appeal had expired.” This allegation is admitted by the demurrer to be true, and the record of the justice is not inconsistent with it.
For these reasons we think the appeal was improperly allowed, and that the plea in abatement is sufficient. The superior court is advised to render judgment accordingly. '
In this opinion the other judges concurred.