70 Conn. 380 | Conn. | 1898
Upon the argument before this court the plaintiff claimed that no appeal would lie in this case, because there had been, as he claimed, no final judgment, and indeed no judgment at all, rendered in the case. But if the case was properly before the court at all, if the defendants were entitled to costs under the circumstances, the decision or determination of which they complain put an end to the suit and to their claim for costs, and if they are entitled to any redress at all, they can have it only by way of appeal, as here, or by writ of error; and they can have redress in neither mode, unless the action of the court below can be regarded as a final judgment within the meaning of the stat
The reasoning of the court in these cases is applicable in the present case, and if the law is so that the defendants were entitled to costs, then we are of opinion that the appeal was well taken.
Whether the defendants were entitled to costs depends upon the construction of § 990 of the General Statutes, which reads as follows: “ Upon the withdrawal of any civil action after it has been returned to court and entered upon the docket, and after an appearance has been entered for the defendant, a judgment for costs, if claimed by him, shall be rendered in his favor, but not otherwise; but such judgment shall not be rendered after the expiration of six months from the date of such withdrawal; and no costs shall be allowed, which accrued after actual notice, in writing, of the withdrawal, was given by the plaintiff to the defendant or his attorney; unless good reason therefor shall be shown to the court.”
The court below held that this section, allowing a judgment for costs, applied only to cases where the withdrawal takes place after the return day, and not to cases where it takes place before that day.
The language of the statute, read as it stands, certainly favors such a construction; but we think it is not the correct construction. The matter of withdrawing actions in vacation seems to have been regulated by statute for the first time in 1848. By Chap. VII. of the Public Acts of that year it was provided in three sections, in substance, as follows: (1) that
In that Revision the three sections were consolidated into one, § 14, p. 418, and certain additions were made which provided in substance as follows : (1) that the plaintiff in any civil action returnable to the Superior, Common Pleas, or District Courts, and returned to its clerk or to his office, might withdraw it in vacation, by filing in such office the prescribed notice ; (2) that the clerk should enter the action upon the docket of the court at its next term, with a note of the withdrawal and of its date; (3) “ if such term be that to which such action was originally brought, and the defendant shall, within the first three days of said term, enter his claim for costs, or if it be not the first term, and he had already appeared to defend, a judgment of nonsuit shall be thereupon entered against the plaintiff; but no costs, except for travel and attendance, shall be allowed which accrued after his giving the defendant or his attorney notice of the withdrawal, in writing; unless good reason therefor shall be shown to the court.”
In 1882 (Public Acts of 1882, Chap. 90) the following law was passed: “ Section 1. Upon the withdrawal of any civil action after it has been returned to court and entered upon the docket, and after an appearance has been entered for the defendant, a judgment for costs, if claimed by him, shall be rendered in his favor, but not otherwise; but such judgment shall not be rendered later than the term of court following the term or the vacation when such action was withdrawn. Section 2. Section eleven, chapter fourteen, title nineteen of the General Statutes (page 446), and so much of section fourteen, chapter five, title nineteen of the same „ (page 418) as is inconsistent herewith, are hereby repealed.”
Thus the law stood upon this matter until the Revision of 1888. In that Revision the law as it was in § 14, p. 418, of the Revision of 1875, and in Chap. 90 of the Public Acts of 1882, except so far as it may have been changed in the work of revision, is embodied in §§ 989 and 990.
How we think it is quite clear that just prior to the revision the law was so that a defendant in a case like the one at bar would have been entitled to costs, either under § 14 or Chap. 90 aforesaid, separately, or under the two combined; and the question is whether the legislature changed or intended to change the law, so as to deprive defendants of
We think § 990 is to be construed as if it read thus: “ Upon the withdrawal of any civil action after it has been returned to court and entered upon the docket, a judgment for costs shall be rendered in favor of the defendant, after an appearance has been entered for him and he claims costs, but not otherwise.” So far as we are aware the practice has ever been in accordance with this view of the law. We are therefore of opinion that § 990 applies to cases withdrawn before, as well as after, the return day, and that in the former, as well as in the latter, class of cases, the defendant is entitled to costs, provided that in the former class he enters in time and claims costs.
There is error in the decision complained of and it is set aside, and the cause remanded to be proceeded with accord-, ing to law.
In this opinion the other judges concurred.