69 Conn. 404 | Conn. | 1897
Apparently the testimony certified fully justified the trial court in the conclusion of fact which it reached; but we cannot pass on this question. It is firmly settled by the decisions of this court that our jurisdiction does not extend to the re-trial upon the testimony, of the facts, based on some evidence, on which the judgment of a trial court, proceeding according to the rules of law, is founded. And it is immaterial whether such re-trial is sought under the claim that the court erred in reaching a conclusion of fact' from the testimony, or under a claim of error in law because a judgment, plainly valid upon the facts settled by the trial court, would be as plainly invalid if it had been rendered on different facts such as might be settled by this court after a re-trial on the evidence. The thing actually sought, in either case, is a re-trial of facts by an appellate court whose jurisdiction relates only to the correction of errors in law. Weeden v. Hawes, 10 Conn. 50, 54; Dudley v. Deming, 34 id. 169, 174; Styles v. Tyler, 64 id. 432, 442, 450, 451; Ketchum v. Packer, 65 id. 544, 553; Carroll v. Weaver, ibid. 76, 79; Curtis v. Bradley, ibid. 99, 104; Peltier v. Bradley, Dann & Carrington Co., 67 id. 42, 49; Scott v. Spiegel, ibid. 349, 357; Enfield v. Ellington, ibid. 459, 464; Neilson v. Hartford Street Ry. Co., ibid. 466, 470; Atwater v. Morning News Co., ibid. 504, 524.
In the Public Acts of 1895, p. 493 (Chap. 100) provision is made for including in the process of this court, a detailed statement of what took place upon the trial, furnished by the official stenographer and certified by the judge. While testimony so certified cannot affect the facts on which the judg
The General Statutes, §§ 1107, 1111, furnish ample provision for the inclusion of such facts in the judgment, for the purpose of presenting the question whether the judgment is the true voice of the law upon the facts found. But in preparing the finding, i. e., reciting the incidents of the trial, the trial judge is not merely exercising the jurisdiction of fact belonging to his court; he is preparing a statement for this court, as a necessary part of the process of this court, and it is an incident of the jurisdiction of this court to obtain a correct recital in its process. Prior to the use of an official stenographer, the judge’s notes were the only official source from which a history of the proceedings not on record could be obtained. Now, the notes of the stenographer certified by the judge as authentic can be made a part of the process and may be considered by this court in connection with the recital of the judge—not for the purpose of retrying the facts on which the judgment is founded—but in determining whether the alleged errors in law did intervene in the conduct of the trial. For such purpose the whole authentic story of the trial as it appears in the process of appeal may be considered. A statement of the testimony as actually given is only necessary where the error in law of finding a material fact in the absence of evidence is claimed ; occasionally such statement may be useful in showing the conditions under which rulings in respect to evidence have been made, and possibly, in showing how principles of law, such as the burden of proof, or the legal effect of a contract found, entered into and influenced erroneously the conclusions of fact, or in explaining the meaning of language used by the judge in the finding. But in' mosteases, burdening the appeal with testimony serves merely a useless and unjustifiable expense; and always so, when, as
If we correctly understand the brief of the plaintiff’s counsel, a claim is made that Mrs. Dyer having received on the day of her marriage, as a wedding present from her father, his check for $5,000, her husband, Charles E. Dyer, forthwith became the legal owner of a chose in action, as statutory trustee of the personal property of his wife; that as such trustee it was his duty to obtain possession of the check,compel its payment, and account for its proceeds; and so, in this suit by the administrator of the wife’s estate against the executor of the husband, the plaintiff, having proved the reception of the check by Mrs. Dyer, established a prima fade case, and the burden of proof was then on the defendant to show that Mr. Dyer -did not in fact perform the duties imposed on him as trustee, in obtaining possession of the check and its proceeds; and therefore in rendering judg■ment for the defendant because “ the evidence fails to prove, and the court does not find therefrom, that said Charles E. Dyer ever received said check, or the proceeds thereof ”—■
It may be true that under the law defining the property rights of these parties, Mr. Dyer might have commenced his married life by instituting a bill in equity to compel his wife to hand over to him any chose in action belonging to her. Sherwood v. Sherwood, 32 Conn. 1. But it is not true that in declining to take such course and in permitting his wife to enjoy and dispose of for her own purposes a wedding gift, he violated his duty as trustee; and if his failure to appropriate the gift is not necessarily a breach of trust, the mere fact of the gift to his wife cannot raise a presumption that he did appropriate it, sufficient to support an action against his estate thirty years after his wife’s death.
The plaintiff does not even prove that Mrs. Dyer was the owner of the alleged chose in action. Her ownership, if any, was by virtue of a gift; such gift is not completed by the mere delivery of a check which remains unacted on in the hands of the payee. Jones v. Lock, L. R. 1 Ch. App. 25; Simmons v. Savings Society, 31 Ohio St. 457, 461; Gerry v. Howe, 130 Mass. 350. The plaintiff’s proof ends with the delivery of the check.
There is no error in the* judgment of the Superior Court.
In this opinion the other judges concurred.
