133 A. 106 | Conn. | 1926
The motion to dismiss was based upon the taking of the appeal on June 30th, when the finding and award was made on June 16th. General Statutes, § 5366, as amended by Public Acts of 1919, Chapter 142, § 14, provides for the procedure upon an appeal from a finding and award by the commissioner, and limits the time within which either party may take his appeal to ten days after entry of such finding. Undoubtedly the General Assembly intended this provision to mean ten days after notice to the party of the entry of such finding; otherwise, in the event of the failure of the commissioner to notify the party of his finding and award within the ten-day period, the taking of the appeal would be fruitless.
In Orcutt's Appeal,
A similar construction must be given to the appeal allowed in this case. The failure to take the appeal within the ten-day period did not make the appeal void, but merely voidable. Objection to an appeal taken after the time for taking an appeal has expired, under our practice, must be taken by plea in abatement and not by motion to dismiss or erase. As early as Denslow v. Moore, 2 Day, 12, 21, in disposing of an objection of this character, we used this language: "Whether the appeal was taken within the time limited by the statute, was a question of fact; and if relied on, should have been pleaded in abatement." From that time to the present, the plea in abatement has been the approved method of attacking an irregularity of this kind.
We held that the plea in abatement was the appropriate remedy for the failure to bring a writ of error within the time limited by statute, Paiwich v. Krieswalis,
The motion to dismiss an appeal is an appropriate remedy where the court is without jurisdiction; Sisk
v. Meagher,
There is error, the judgment is set aside, and the cause remanded to be proceeded with according to law.
In this opinion the other judges concurred.