133 A. 915 | Conn. | 1926
This was an appeal from the judgment rendered upon the verdict of the jury in favor of the defendant for errors claimed to have occurred in the trial in the charge as made, in the refusal to charge as requested, in both the admission of, and the exclusion of, evidence, in an interlocutory ruling, and in refusing to set aside the verdict. The plaintiff duly filed a motion to rectify the appeal based upon General Statutes, § 5836. It is not submitted to us in accordance with the requirements of this section of the statutes. Before pointing out the specific irregularities in this submission, we think it desirable to restate the true function of a finding in a trial to the jury; the difference between a finding in a case tried to the court and one tried to the jury, and the only two methods provided by our statutes for securing a correction of a finding in a trial to the jury. The finding in a case tried to the jury is not in the strict sense a "finding." since the jury determine the facts established by the *662
evidence, and the finding as made by the court is a fair narrative of what each of the parties offered evidence and claimed to have proved, either by direct evidence, or by legitimate inferences, of the occurrences of the trial, of the rulings and claims of law made, and the instruction given the jury by the court. In a trial to the court, the facts found are the court's best judgment of what the entire evidence establishes; if they stand uncorrected they settle the ultimate facts. In the case tried to the jury, the finding as made does not establish the facts. It is merely a fair statement of the facts claimed to have been proven by each party, and "made with sufficient fullness to present the questions sought to be raised by the appeal." Elliott v.New York, N. H. H.R. Co.,
There is also this limitation upon an attempt to correct a finding. It will be corrected "only when it is reasonably necessary to fairly present a claimed error in law made by the court." State v. Gargano,supra, page 106. Three remedies are open for the correction of the finding in a trial to the court. Section 5830, by way of a motion to correct, with exceptions annexed; or by § 5832, by filing a copy of the evidence and rulings with the trial court, together with a motion that the same be made a part of the record; or by § 5836, by application for the rectification of the appeal by this court. The latter method is, as we said inState v. Kelly,
The remedy provided by § 5836, by application to this court to rectify the appeal, is available when the finding does not correctly state the events or occurrences of the trial and it is necessary to go outside the record for their proof. State v. Kelly,
In this case the applicant duly made the request to the court and gave the adverse party notice and thereafter filed his application with affidavit. Avery v.White,
In our examination of the findings we note a number of allegations which are ultimate findings of facts as to the character of the plaintiff's testimony. They have no place in a finding in a trial to the jury and quite likely were inadvertently transferred from the counter-finding of the defendant to the finding by the trial court without considering their especial impropriety in a finding in a trial to the jury. Of our own motion we strike out these findings; in paragraph 7, *665 "and the plaintiff's testimony in this respect was false, and the plaintiff testified falsely for the purpose of securing a verdict and to deceive the court and jury"; in paragraph 8, "This testimony was false, and the defendant testified for the purpose of aiding the plaintiff to secure a verdict and to deceive the court and jury"; in paragraph 9, "This change in the defendant's testimony was not made in good faith, and was made because he realized that his first testimony might damage his chances of recovery and was made to deceive the court and jury"; and all of paragraph 10, "The plaintiff's testimony because of the false statements was not worthy of belief; and the defendant's testimony because of his false statements was not worthy of belief; and the jury were entitled to disbelieve the entire evidence given by the plaintiff and the defendant, and the plaintiff had therefore failed to sustain the burden of proof and had failed to prove the material allegations of his complaint."
The application to rectify the appeal is denied.
In this opinion the other judges concurred.