58 A.2d 704 | Conn. | 1948
This is an appeal from the denial of a motion for a new trial based upon the fact that the judge who tried the case died after judgment but before an appeal to this court could be perfected. The action was brought to recover damages for breach of a promise of marriage. There was a verdict and judgment for the plaintiff. The defendant obtained an order extending the time within which to file an appeal to this court, but the judge who presided at the trial died before that extension had expired or an appeal had been filed. Thereafter, the defendant filed the motion from the denial of which this appeal is taken. He was attempting to *482 proceed under 5697 of the General Statutes, of which a copy is inserted in the footnote.1
In the motion, the defendant recited the facts stated above and alleged that he had desired to take an appeal and had complied with the rules relating to appellate procedure. The motion then claimed errors in the admission of evidence, to which the defendant had objected and to the rulings on which he had taken exception, in the action of the trial court in allowing counsel to present an improper argument to the jury and in failing to instruct them to disregard it, in a failure adequately to charge the jury as to damages in general, and in one particular respect pointed out with some definiteness. The allegations as to the rulings on evidence were in general language, in no way complying with the *483 method in which such rulings are required to be presented on an appeal to this court. Practice Book 359. No transcript of the evidence, in whole or in part, no statement of the arguments of counsel and no copy of the charge were attached to the motion. A demurrer to it was overruled. At the hearing the trial court denied it, without memorandum.
We have no rule which states the procedural requirements for a motion under 5697. We have never had such a rule concerning a petition for a new trial for newly-discovered evidence under 5701 of the General Statutes; but in a long line of decisions, beginning with Parsons v. Platt,
These principles, in the absence of any rule, apply to motions for relief under 5697. Such a motion might come before a judge other than the one who *484 tried the case. To be adequate and proper, it must contain allegations sufficient to show that the party making it might be able to establish his right to the relief provided in the statute and fairly to inform the court and opposing counsel of his claims. If the ground for relief alleged is a ruling on evidence, the motion should state the facts claimed by him to have been proved or, if the trial was to the jury, the facts each party has offered evidence to prove and claimed to have proved, so far as necessary to give a sufficient basis for understanding the significance of the ruling, and the statement of the ruling itself should conform to that required in presenting similar claims to this court on appeal. If the claim of error is, in a jury case, as to a charge or failure to charge, the motion should in general contain allegations similar to those necessary to present like claims of error to this court. Such requirements are, indeed, implied in the provision of 5697 that a new trial shall be ordered if the court is of the opinion that the claimed errors "are of such a nature as fairly entitle the party appealing to a review of such assignments of error by the supreme court." The trial court acting under this statute does not take the place of this court; but the question for it to decide is whether or not the claimed errors are such that the party would be entitled to have them reviewed by us; and to meet the requirements the motion should contain the allegations we have stated.
The question as to proper procedure under the statute is a novel one and we would not be disposed to require in this case more than a substantial compliance with sound practice. There was, however, a complete failure to conform to it. The evidence before the court at the trial of the case, the argument bed in question and the charge are not before us, *485 even if they were before the Superior Court, of which the record gives no indication. We have no way of determining whether the claimed errors were so raised at the trial that they could properly have been considered by us had the defendant been able to appeal, or, indeed, whether the court at the trial did in fact err, or, if so, whether its errors were material and harmful. The record before us gives us no basis upon which we can review the decision of the trial court denying the motion and it must be affirmed.
Because we have not before had occasion to deal with procedure under 5697, we note one claim made by the plaintiff in opposing the motion. In reliance upon the closing words of the statute which condition relief by a requirement that a review of the claimed errors by this court "cannot otherwise be had," she claims that, as this was a jury case, a judge other than the one who tried the case could, from a transcript of the evidence and charge, make the finding necessary to present the case upon appeal. A finding in a jury case is a statement of such facts as the respective parties not only offered evidence to prove but also claimed to have proved, and, while a judge who did not try the case might from the evidence determine whether evidence was offered sufficient to support the facts the appellant seeks to have found, he might not be able to determine what facts a party claimed to have proved; a transcript of the testimony often will not disclose such claims. Fitzgerald v. Savin,
There is no error.
In this opinion the other judges concurred.
