2 A.2d 489 | Conn. | 1938
MOTION TO ERASE AND PLEA IN ABATEMENT. On October 28th, 1937, the plaintiff recovered a verdict against all three defendants. They made a motion to set it aside, and the court, on November 16th, 1937, granted this motion as to two defendants but denied it as to the third. On November 30th, 1937, this defendant filed an appeal in which be stated that he appealed "from the denial of his motion to set the verdict aside and from the judgment." On December 1st, 1937, he asked and was granted an order extending the time in which to file assignments of error and a request for a finding and a draft-finding. The plaintiff filed a motion to erase the appeal from the docket and a plea in abatement, each stating as the ground upon which it rested that the defendant was attempting to combine in a single appeal one taken from the denial of the motion to set the verdict aside and one taken from the judgment. The defendant has filed a demurrer to the plea in abatement upon the ground that such a plea is not the proper proceeding to present the defect of which the plaintiff complains.
Speaking generally, a motion to erase an appeal *686
from the docket is proper where there is an attempt to take an appeal when it appears upon the face of the record that no appeal lies, as, for example, where the Supreme Court lacks jurisdiction; Ragali v. Holmes,
The attempt of the defendant to combine in a single appeal one taken from the ruling on the motion to set the verdict aside and one from the judgment is contrary to the provisions of the rules now in effect and the approved practice before its adoption. Practice Book, § 338; Ghent v. Stevens, supra; Markiavicus v.Bunnell Transportation Co., Inc.,
It is therefore ordered that if the defendant within two weeks after notice of this decision withdraws either the appeal from the denial of the motion to set the verdict aside or that from the judgment the clerk shall enter judgment overruling the plea in abatement, otherwise he shall enter judgment sustaining the plea.
The motion to erase the appeal from the docket is denied.