142 A. 452 | Conn. | 1928
In this court, the appellee filed a motion to erase the case from the docket for lack of jurisdiction on the ground that the judgment of the City Court of Meriden, upon the equitable issues, was not a final judgment and that no final judgment could be *22 rendered in the case until the damages had been assessed by a jury.
As far as appears from the record, no objection was made to the action of the City Court of Meriden in proceeding to the trial of the equitable issues before the question of damages claimed for trial to the jury was tried. In the trial to the court, all the issues were determined, except the amount of damages, and the court rendered a judgment after fully hearing the parties. This judgment, by its terms, disposes finally of all the issues in the case except the amount of damages and was a final judgment, as to the issues adjudicated, from which an appeal lay immediately to this court. "A `final judgment,' within the meaning of our statute of appeal, may include any judgment in its nature final and separable from any other judgment that may be rendered in the action, although not finally disposing of the action." Bunnell v. Berlin Iron BridgeCo.,
The defendant moved the trial court to expunge certain paragraphs of the finding as made and to correct and add to the finding by substituting in place of the paragraphs found, certain paragraphs of his request for a finding. The written exceptions which the defendant annexed to his motion to correct did not contain any grounds for expunging or adding to the finding provided by our Practice Book. Practice Book, p. 309, § 11. Our rules provide that written exception to a finding may be for one or more of the following grounds: (1) A refusal by the court to find a material fact, which was an admitted or undisputed fact; (2) a finding of a fact in language of doubtful meaning, so that its real significance may not clearly appear, and (3) a finding of a material fact without any evidence. As there is no reference in the exceptions or reasons of appeal directly, or by reference to the motion to correct, to the grounds for expunging a fact found or adding a fact to the finding as set forth in the rules above, the motion to correct was properly denied by the trial court and cannot be considered by us. Moreover, an examination of the entire evidence certified in connection with the motion to correct shows that the matters contained in the finding were supported by evidence, and that the real purpose of the motion is to ask this court to weigh the evidence adduced pro and con, and retry the facts found by the trial court. It is not a permissible ground of exception that a fact was found against the weight of evidence. This court cannot retry the facts by considering and weighing the evidence; that is the *24
exclusive province of the trial court. De Feo v. Hindinger,
Upon the finding as made, the correctness of the judgment of the court below cannot be questioned successfully. If the defendant has any right to maintain his connection with the sewer, it must be by reason of a grant of an easement to do so, implied in the deed of his premises. The underground sewer pipe, in this case, had no outlet onto the surface and was not visible at the time that the plaintiff purchased his land in 1926 or at the time his predecessor in title, Giovanni Ricci, purchased from the Montemurros on March 5th, 1925. The deeds in each case were warranty deeds with the usual covenants of warranty and contained no words of restriction and no mention of any easement affecting the property conveyed. In the leading case of Whiting v. Gaylord,
In Exley v. Gallivan,
As the rulings upon evidence were not pursued in appellant's brief, and, in the argument, any claims of error, based thereon, were abandoned, discussion of them is unnecessary.
There is no error.
In this opinion the other judges concurred.