Seymour v. Miller

32 Conn. 402 | Conn. | 1865

Hinman, O. J.

We think the facts found by the superior court in this case sufficient to justify the decree granting a new trial. The rule on the subject is very well stated in the late case of Day v. Welles, 31 Conn., 344, and the only question was, whether the facts brought the case within it. The claim is that they show negligence in the petitioner’s counsel in not making a thorough examination of the docket after the time for entering appeals had expired. No doubt the general practice of counsel is to give the name of the case to the clerk, and inform him that they appear for the appellee, at or soon after the time for entering appeals expires, and if the clerk does not find the case on the docket it is considered that counsel have exercised reasonable diligence in the matter. But the application to the clerk in this case, and the examination of the docket, were so near the time when the appeal must by law have been entered,^* that little apprehension could have been entertained that the clerk would forget the fact that the appellee had given him notice of an appearance, and under the circumstances we think he was justified in relying on this, together with the agreement of the clerk to enter his appearance whenever the appeal should be entered, and his taking a memorandum for that purpose. It is true the clerk was not bound to assume any responsibility or make any agreement in the matter. But if he had declined any agency whatever the counsel would have been notified of the fact, and would have provided for an appearance at the proper time, but he was thrown off his guard by the course taken. The inadvertence of the clerk does not differ materially from what would be the case if in the hurry of business he should omit to enter an appearance at the proper time, and the fact should escape his recollection, so that no appearance should be entered at all.

We are of opinion that there is no error in the decree complained of.

In this opinion the other judges concurred.

* By statute appeals are to be entered, by the appellant on or before the opening of the court on the second day.