117 A. 1 | Conn. | 1922
The facts, admitted or stipulated, are as follows: No appeal in writing was filed within ten days from the filing of the finding, which was on March 9th. Thereafter, on March 27th, counsel for defendant, by telephone, secured from Judge Haines, the trial judge, an extension of the time for filing the appeal, to 5 P. M. March 28th, and counsel, on said day, notified the clerk of the extension so granted.Judge Haines did not notify the clerk of the granting of this extension; nor did counsel for defendant notify plaintiffs, or their counsel, of his own intention to seek an extension of time for filing the appeal. No hearing was had to determine whether or not due cause existed for making such extension. So far as appears of record, no reason for asking such extension was presented to Judge Haines, other than that counsel had inadvertently permitted the time limited by statute for filing an appeal to pass, and, so far as appears of record, this was the basis of the order of Judge Haines granting such extension of time.
The appeal was taken to the first Tuesday of June, 1922. The term of court next after the filing of the appeal was the second Tuesday of April, 1922.
The two questions which the plea raises and which we purpose discussing are: 1. Whether the application for an extension of time for filing an appeal was properly granted. 2. Whether the taking of the appeal to the June, instead of the April, term, rendered the appeal nugatory. *416
The authority of the trial judge is limited by, and cannot extend beyond, the statutory authority. Cramer
v. Reeb,
The case presented upon this record is one of mere inadvertence of counsel. No suggestion to excuse counsel, no situation of hardship to litigant, and no doubtful question of law involved are found in the record. Under these circumstances no case of "due cause" was shown, and no basis is given for the exercise of the trial judge's discretion. Upon this ground the plea is clearly well taken.
To better define the practice, we state what we deem to be the better practice in matters concerning an extension of time for filing an appeal. The application *418 should, if possible, be made within the ten-day period, and in writing. Where the opportunity is present, opposing counsel should be requested to stipulate that the order for the extension be granted, and if due cause exists, good professional practice requires that such stipulation be made. The trial judge should be notified of the existence of such stipulation. Where such notice is not given him, he will assume that opposing counsel have refused to so stipulate. Opposing counsel may, if they so desire, request the trial judge that they be heard upon such request for an extension, or they may submit forthwith, in writing, reasons for the refusal to grant the request. Whether the trial judge shall accord such hearing is within his discretion. His decision thereon should be communicated by him to the clerk and in writing, if possible. The same practice should be observed where the application for an extension is made after the ten-day period.
The statute, § 5820, merely requires the appeal to be made returnable to the term of this court next to be held after the filing of the appeal. Since the enactment of Chapter 112 of the Public Acts of 1905, it has not been necessary to specify in the appeal the particular term to which the appeal is returnable. The date of filing the appeal determines which is the next term of court, hence the specification of such term by name is a needless allegation. It follows that whether the term specified be the correct term or not, such an allegation may be disregarded, since it can have no effect upon determining to what term the appeal is taken. The statute fixes the only term to which the appeal can be taken, and the date of filing definitely fixes the term to which the appeal is taken.
In this case the appeal was filed March 28th, and if the appeal had been duly filed, the date of filing would *419 have fixed the term to which the appeal was returnable as the second Tuesday of April. The appeal filed specified that it was taken to the June term, but this could not change the term to which it was taken under the statute, immediately upon its filing, viz, the April term.
The plea is sustained and judgment for plaintiffs rendered thereon.