Shea v. New York, New Haven & Hartford Railroad, 66 Conn. 268

Shea v. New York, New Haven & Hartford Railroad

66 Conn. 268 | Conn. | 1895

Hall, J.

From a judgment of the District Court of Waterbury rendered on the 24th of April, 1894, the plaintiff, on the 3d of the following May, appealed to the Superior Court next to be holden at Waterbury. In the Superior Court the defendant pleaded in abatement of the appeal, upon the ground that it was taken to the first Tuesday of June, when it should have been taken to the first Tuesday of May. From the judgment of the Superior Court sustaining the plea in abatement, the plaintiff appeals to this court.

The plaintiff’s contention that his appeal from the District to the Superior Court, was properly taken to the first Tuesday of June, is based upon two grounds: First, that the words “next return day” in § 715 of the General Statutes, mean the next return day after the allowance of an appeal, which, it is claimed, may be allowed by the court at any time during the term in which the judgment is rendered. Second, that by § 794 of the General Statutes an appeal may be taken from the District Court of Waterbury, to either the next or the next return day but one, of the Superior Court at Waterbury, after the judgment.

The defendant claims that § 794 does not apply to appeals from the District Court of Waterbury, and that the only right of appeal frum that court to the Superior Court is granted by § 715, and is limited to a right to appeal to the next return day of the Superior Court, after the judgment from which the appeal was taken ; which in the present case was May 1st.

By § 715 it is provided that from all final judgments or decrees of the District Court of Waterbury, either party aggrieved may appeal “ to the next term of the Superior Court; to be held at Waterbury.” At the close of the section is the following provision: “ And provided also, that the next term of the Superior Court to be held at Waterbury, within and for the county of New Haven, shall be construed to mean the next return day to said court.”

We think it clear that by “ the next return day to said court,” was meant the next return day to the Superior Court at Waterbury, after the day upon which the judgment ap*270pealed from was rendered; and that by the provisions of this section the plaintiff had no right of appeal, and the court no power to allow an appeal, to any other day. Under § 715 the right to appeal existed immediately upon the rendering of the final judgment. This section provides but one day to which an appeal may be taken. That day is the next return day after the right to appeal exists. The next return day to which the plaintiff could have appealed, in this case, was the first Tuesday of May, which was May 1st.

To sustain the plaintiff’s claim that the court may allow an appeal at any time during the term in which the judgment is rendered, would be, under the present arrangement of the terms of the District Court, to permit an appeal to be taken to the Superior Court after the expiration of nearly six months from the date of the final judgment. The power of the District Court to allow an appeal, is defined by the law which gives to parties the right of appeal. It does not result from the control which the court may have over its judgments during the term in which they are rendered.

Was the plaintiff entitled to appeal to the first.Tuesday of June, under the provisions of § 794? The language of that section is as follows: “ Process in civil actions, brought to the Superior Court, which shall include all appeals, transfers, applications for relief and removals, shall not be made return'able to any term or session of said court, but shall be made returnable upon the first Tuesday of any month, except July and August; provided that service be completed at least twelve days inclusive before such return day; and all process shall be made returnable to the next return day, or the next but one, to which it can be made so returnable.” It is further provided that this section shall not affect the time for taking appeals from probate, or from the doings of commissioners.

By an Act passed in 1876, (Public Acts of 1876, p. 100,) amended in 1877, (Public Acts of 1877, p. 202,) all civil, process returnable to the Superior Court in Hartford, New Haven, and Fairfield counties, was made returnable, in addition to the first days of the respective terms, to the-first Tues*271day of any month except July and August; with a proviso that the return day should not be more than fifteen weeks from the date of the process, and that service be completed at least twelve days before the return day. A Special Act passed in 1879, (Special Acts 1879, p. 155,) which granted the right of appeal to the next term of the Superior Court held at Waterbury, from the City Court of Waterbury, (which in 1881 became the District Court of Waterbury, with the same jurisdiction and right of appeal, Public Acts of 1881, p. 68,) contained this provision: “ and the next term, as mentioned in this Act, shall be construed to mean the next return day to said Superior Court.” In 1886 an Act was passed making civil process, including all appeals, returnable on the first Tuesday of any month, except July and August; and all process 'returnable to the next return day or the next but one, to which it could be so made returnable. Public Acts, 1886, p. 629. This Act contained substantially the same provisions as § 794 of the General Statutes — together with a clause repealing all Acts or parts of Acts inconsistent therewith.

We do not think that the provision of the Act of 1879 limiting the right of appeal from the District Court of Waterbury to the next return day of the Superior Court, was repealed or affected by this Act of ‘ 1886. While there was a reason for extending the time for the return of process in some civil actions, beyond the first return day, and especially of those which were required to be served at least twelve days before the return day, there was no reason why appeals like that under consideration, and which require only the furnishing of a bond for their completion, should not be made returnable upon the next return day after the judgment. Again, the Act of 1879 was a special Act, a part of the city charter, which would not be repealed by a general Act, unless the language of the latter made it clear that such was the intention of the legislature. Coe v. Meriden, 45 Conn., 156; N. Y., N. H. & H. R. R. Co. v. Bridgeport Traction Co., 65 id., 410.

That it was not the intention of the legislature of 1887— which, in adopting the Revision of 1888, enacted § 794 — to *272extend the time for taking appeals from the District Court of Waterbury to the Superior Court, is clearly shown by the fact that the same legislature, in § 715, reenacted the law of 1879 concerning the return day of appeals from the District Court of Waterbury, and included it among the general laws of the State. Unless it was intended that the two sections should stand together, § 715 forming an exception to § 794 as to the return day of appeals, there is no apparent reason why the same legislature should have enacted both sections.

A similar exception to the operation of § 794 is found in § 683 making appeals to the Superior Court, from justice-courts, in certain counties, returnable to the first Tuesday of the month next succeeding the allowance of the appeal.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.