46 Conn. 370 | Conn. | 1878
The question in this case is, whether upon the facts found the defendant can be charged as executor in his own wrong, by reason of his drawing from a savings bank a sum of money which had belonged to Noah Rusco, the deceased, and which it is claimed was a part of the assets of his estate. The Superior Court held that he was not so chargeable, and the plaintiff brings the case before this court by a motion in error.
By the finding it appears that Noah Rusco, on the 8th of ■December, 1875, twenty-six days before his death, signed by his mark an order on the Norwalk Savings Society in favor of the defendant for $4,481.12, with the accrued interest thereon, being a deposit made by him some time before in the savings bank, and delivered the order and his deposit book to the defendant, who a few days after his death drew out the money.
It is also found that Noah Rusco lived in Lewisboro, in the state of New York, and there died, and that he left a will, by which he made James Wakeman his executor, that Wakeman accepted the trust and has ever since acted as executor, and that the savings bank paid over the money to the defendant upon the order, “with the approval and at the request of the said Wakeman as executor.”
It is found that Floyd T. Rusco, a devisee under the will of Noah Rusco, and a creditor of the estate, on the 26th of April, 1876, released to the defendant, for the consideration of twelve hundred and fifty dollars, all his claim upon and interest in the estate. The said Floyd was called as a witness by the plaintiff on the trial, and was asked by the counsel of the latter whether, at the time of this transaction, this savings bank money was spoken of and treated as assets of the estate and whether it entered into the consideration of the release. This question, the defendant objecting, was ruled out by the court. The plaintiff had claimed that Noah Rusco, at the
But it is not necessary for us to decide this point, because, if the court erred in excluding the evidence, the case must yet on other ground be decided in favor of the defendant. As we have already shown, the receiving of the money by the defendant from the savings bank, the payment being made by the bank at the request of the rightful executor, and the defendant receiving it as his own and not as assets of the estate, can not make him executor in his own wrong. And this would be the only result even if the evidence had been admitted and the court had upon it found that the defendant had no right to the money.
The case comes before us on a motion in error. While it is a general rule that, on a writ of error or motion in error, any error apparent on the record is fatal to the judgment, yet it miist be an error that has entered into the judgment. It has always been the rule that where a judgment is divisible that part of the judgment into which the error has not entered may be affirmed. Welles v. Fowler, Kirby, 236; Dixon v. Pierce, 1 Root, 138; Sherwood v. Sherwood, 32 Conn., 2. Common sense would equally require that an error which does not touch those facts of a case upon which alone the judgment rests, should not be allowed to affect the judgment. Thus, in assumpsit upon a note the defendant may deny the execution of the note, and may also plead a discharge; and in such a case the court may find the facts and from the finding it may appear that the court erred in.
And while it is not necessary to decide whether there was error in the exclusion of the evidence offered by the plaintiff, it is also unnecessary to decide whether the question as to that error can be made on a motion in error. It has been repeatedly held by this court that a motion in error is not the proper mode of bring up questions with regard to the admissibility of evidence, but that a motion for a new trial is the only proper mode. Tolland v. Willington, 26 Conn., 581; Ward v. Donovan, 45 Conn., 559. This is a matter of practice wholly, and is founded upon the rule adopted in 1807, that bills of exceptions should not thereafter be allowed, but that motions for new trials should be allowed in their place. Zaleski v. Clark, 45 Conn., 402. This rule was adopted because motions for new trials addressed themselves to the discretion of the court, and a new trial could be refused, although the motion showed there had been error, where the error was one that the court could see was not material. As errors of the court in its rulings could be brought upon the record only by a bill of exceptions, the rule refusing such bills of exceptions necessarily kept the case out of the reach of a writ of error. But there has grown up a practice in the courts, not merely of making a finding of the facts in cases tried to the court, (which they are required by statute to make at the request of either party, and which are made a part of the record,) but also in the finding to state the rulings of the court upon the admission or rejection of evidence. This is often a great convenience to the parties, and seems to
There is no error in the judgment complained of.
In this opinion the other judges concurred.