Lake's Appeal from Probate

32 Conn. 331 | Conn. | 1865

Park, J.

The parties who opposed the withdrawal of this case in the court below, claim the right to appear and prosecute the appeal, although the case has been settled by the parties to the record, the appeal discharged and abandoned by the appellant, and all connected with the case have appeared in. court and requested that the cause be discontinued.

It appears that just previous to the taking of the appeal, John Lake, one of the heirs of Isaac Lake deceased, acting for himself and other heirs of said Lake, had a conversation with the appellant upon the subject of taking an appeal, which resulted in an agreement that the appeal should be taken by the appellant, and the other heirs should bind themselves by an instrument in writing to pay to the appellant their proportion of the expense of prosecuting the suit. The appeal was taken accordingly, and the instrument in writing given, and upon this ground the parties giving it claim the right to appear and prosecute the appeal, although the appellees in good faith settled the controversy with the appellant, without any knowledge of this agreement.

Under such circumstances can the agreement avail these parties ? It is not pretended that it conferred any legal interest in the appeal, for that could be acquired only by pursuing the course prescribed by the statute ; but the claim is, that the agreement constituted them parties in equity.

What the effect might have been if the appellees had had knowledge of the. agreement at the time the appeal was taken, or before the settlement was made, it is unnecessary to consider ; but without such knowledge it is clear that these parties have no equitable claim, for manifestly it would be unjust to hold the appellees bound by an arrangement of which they had no knowledge or means of knowledge.

The appellant was the only party to the record, and we think the appellees had the right to consider that he only felt aggrieved by the doings of the court of probate.

Any other view would render it hazardous for the appellees in any case to settle the controversy with the party to the record; and their safety would require that discharges should be procured from all parties interested in the settlement of the estate, for they would never know but that some secret arrangement existed like the one in question. We think therefore that these parties have failed in equity as well as in law to show a right to appear and prosecute this appeal.

Another objection is made to the withdrawal of this case, on the ground that the motion was made orally to the court, and not in writing, stating the grounds of the request. If this objection was sound it is clear that these parties can not make it, for if they have no right to appear and prosecute the appeal, they are mere strangers, and strangers cannot be heard;

But what shall the court do with the case ? Causes remain upon the docket to be tried. Shall the court order the case tried notwithstanding it has been settled, a discharge given, and a request made by both parties that it be withdrawn ? This can hardly be claimed. For what purpose then should it remain longer encumbering the docket ? Manifestly for no purpose. Similar cases are every day withdrawn with as little formality.

We advise the superior court that the appellant should have leave to withdraw the case from the docket of the court.

In this opinion the other judges concurred.