4 A.2d 333 | Conn. | 1939
The plaintiff brought an action against the defendant returnable to the Court of Common Pleas for the Judicial District of Waterbury. Thereafter, *207
the pleadings in the case were closed and on November 25, 1936, the cause was ready for trial before a jury. On that day, a withdrawal of the action was filed and signed by the attorneys for both the plaintiff and defendant. Thereafter, on January 2, 1937, the plaintiff filed a motion to restore the cause to the docket which was granted by the court on February 2, 1937. The defendant appealed, Lusas v. St. Patrick's Roman Catholic Church,
The plaintiff has asked for numerous corrections and additions to the finding; but, as the evidence of the case is not made a part of the record, there is nothing before this court to furnish a basis for a correction of the finding and we must consider the case upon the facts found by the trial court. State v. Jones,
In the former appeal the question presented was the action of the trial court in restoring the case to the docket. In a memorandum the judge gave as the reason for his action that "a real consent to withdrawal was never given by this plaintiff," and the plaintiff now claims this statement of the judge in his memorandum as res adjudicata. The condition precedent to the application of that doctrine is the existence of a *209
judgment. Fuller v. Metropolitan Life Ins. Co.,
In the course of the trial the plaintiff was sworn as a witness and testified that she was in the private office of her attorney on the morning of November 25, 1936; and, later on the same morning, in his office on Bank Street; that in both places there was a discussion concerning the withdrawal of her case, and that she wished a trial and did not wish the case withdrawn and did not assent to its withdrawal. On cross-examination, she was asked how many lawyers she had consulted in reference to the case prior to the time that she consulted Mr. Monzani. The question was objected to as immaterial and over the objection of the defendant she stated that she had consulted three. As far as appears from the finding, it was of no materiality upon the question at issue whether or not she had consulted other lawyers about her case before consulting Mr. Monzani. Assuming that the admission of this evidence was erroneous, it does not appear that it was harmful. The case was tried to the court and we do not think it likely that the decision of the court upon the question as to whether she had authorized her attorney to sign the withdrawal could have been affected by her testimony that she had previously consulted three other attorneys. "A new trial ought not to be granted for the improper admission of evidence `where it is apparent to the court that no injury to the complainant and no injustice could have resulted from the error.'" Devereux v. Armstrong,
In the course of the trial John T. Monzani, an attorney at law, who stated that he had acted as counsel for *210
the plaintiff at the time of the withdrawal, was asked what was said about the case in his office, if anything. Counsel for the plaintiff stated to the court that the communication was between attorney and client and privileged, that he did not make any objection to the testimony of the attorney but did not waive any rights of the plaintiff. After some discussion the question was admitted. It does not appear what the answer was or whether the question was answered at all. Under these circumstances it is unnecessary for us to determine whether or not there was any error in the action of the court. Morache v. Greenberg,
There is no error.
In this opinion the other judges concurred.