Etchells v. Wainwright

Hall, J. It is claimed that the defendants, by demurring to the plaintiff’s motion, have admitted that the judgment which the plaintiff attempted to appeal from was erroneous. The motion states no facts or rulings showing the claimed error. An allegation, in an application for a new trial, that the judgment sought to be reversed is erroneous and ought to be set aside because of errors committed by the trial judge, is not such a proper and issuable allegation of fact as is admitted by a demurrer; nor ought we, from the demurrer to this motion, to assume, as the basis of our advice in this case, that the judgment in question is erroneous, if it is apparent that the alleged error cannot be shown. The conclusion which we have reached upon the merits of the question before us, renders it unnecessary for us to decide whether, under § 813 of the General Statutes, a case from the final judgment in which an appeal has been taken to this court is, at a subsequent term and before the appeal has been perfected, so pending before the trial court that it may entertain any motion concerning it other than such as relate to the appeal. Under the motion made by the plaintiff in the Court of Common Pleas, on the 3d of September, 1903, she had no better right to a new trial than she would have upon a petition for a new trial under General Statutes, § 815. In either case she is required to prove by legal evidence the facts upon which she relies to establish her right to a new trial, and in either case a decision in her favor would be subject to review by this court. Carrington v. Holabird, 17 Conn. 530, 538; Husted v. Mead, 58 id. 55, 66. Indeed, if a decision in plaintiff’s favor upon this motion would not have been reviewable, it was not proper to reserve the motion for our advice. We shall, therefore, inquire whether the plaintiff, under *538 our law and practice and upon the facts above stated, would have been entitled to a new trial even if she had proceeded by a petition for a new trial under § 815, which provides that certain courts, including courts of common pleas, “ may grant new trials of causes that may come before them respectively, for mispleading, the discovery of new evidence, want of actual notice of the suit to any defendant, or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed; or for other reasonable cause, according to the usual rules in such cases.” In the case before us the plaintiff claims to be entitled to a new trial upon the ground that, without her fault, she has become unable, by reason of the death of the trial judge, to complete, as required by statute, an appeal from a final judgment in the Court of Common Pleas, taken to this court for the purpose of having reviewed certain alleged erroneous rulings of said trial court upon questions of evidence, and upon claims of law made by her at the trial upon the facts claimed to have been proved. Except as we retain the common-law remedy by writ of error, the entire system of appellate procedure, and generally the proceedings for procuring new trials, are in this State governed by statute. Here, as generally in other jurisdictions, the conditions upon which appeals to courts of review may be taken and perfected, as well as the powers of different courts to grant new trials, are expressly defined and limited by statute, and “ the conditions required by statute as precedent to taking and perfecting an appeal cannot therefore be modified or extended by any judge or court without express statutory authority.” 2 Ency. of Pl. & Pr. p. 17; Sholty v. McIntyre, 136 Ill. 33. Certainly after the term in which final judgment is rendered has expired, courts of common pleas have no power, either upon motion for a new trial or otherwise, to review rulings upon questions of law made in the trial of a cause, nor to grant a new trial of the ease because of such erroneous rulings. The former method of procuring a review of such rulings by motion for new trial made in the trial court (Zaleski v. Clark, 45 Conn. 397, *539 402), has, since the Act of 1882, been superseded by the “ appeal,” which is a process for bringing to this court for review those questions of law arising in a trial which were before reviewable upon a motion for new trial, as well as the questions before reviewable by motion in error. White v. Howd, 66 Conn. 264, 266. By our present laws the only court,which can properly review the rulings at atrial in the Court of Common Pleas, and grant new trials for such rulings, when erroneous, is the Supreme Court of Errors ; and in this court such claimed errors—when, as in the present case, they do not appear upon the face of the record of the trial court—can only be reviewed, and a new trial granted, upon an appeal taken as prescribed by statute, containing a finding by the trial judge showing the rulings made by the court and the facts found, so far as such facts are necessary, for the proper presentation of the questions of law sought to he reviewed. The death of the trial judge has made it impossible to obtain the finding required by statute in order to enable this court to review the claimed rulings and grant the new trial asked for. If the Court of Common Pleas had jurisdiction to review its own decisions and grant new trials for erroneous rulings upon such questions as those set forth in the plaintiff’s proposed finding, it could not, without a finding of facts, properly determine whether such errors had been committed in the present case as would entitle the plaintiff to a new trial. In the absence of a finding by the trial judge, the rulings of the trial court which do not appear of record could not be properly proved. If witnesses could testify as to rulings made upon questions of evidence, they could not as to rulings upon claims made in the argument of the case. If it could he made to appear that certain rulings upon questions of evidence were erroneous, a new trial ought not to he granted, unless it could be determined, from a finding of all the facts, whether such rulings were so harmful as to justify the ordering of a new trial. We think the Court of Common Pleas cannot properly grant a new trial in this case upon the ground that the rulings of the trial court were erroneous. *540 But the principal contention of the plaintiff seems to be that even if it is not made to appear that the rulings in question were erroneous, yet she is entitled upon equitable principles to a new trial, upon the sole ground that by the death of the trial judge she has been prevented from perfecting and prosecuting her appeal. It cannot be said that the trial of this case has not been fully completed and a final judgment rendered in the Court of Common Pleas. An appeal to this court from the final judgment of a trial court forms no part of the trial of the ease in the latter court. That trial is completed when final judgment is rendered. The judgment of the trial court is not vacated by such an appeal, and it is none the less a final judgment because subject to be set aside upon writ of error or other process for a review of the proceedings in the trial court. If, after a trial and final judgment in the Court of Common Pleas, the only complaint of the defeated party respecting the proceedings at the trial and the character and amount of the judgment is, that such errors were committed in rulings upon questions of evidence and claims of law as are complained of by this plaintiff, the judgment should stand, and the successful party is entitled to have it stand as a final judgment, until it is shown that such rulings were erroneous and that the judgment ought to be set aside. Excepting as the plaintiff questions the correctness of certain rulings of the trial court upon questions of law, she makes no complaint as to the proceedings in the trial in that court. Upon every question which she sought to have reviewed by her proposed finding she has been fully heard in the trial court. The right to have, by the appeal attempted to be taken, a second hearing upon such questions, is neither specifically granted by our Constitution nor is such right essential to due process of law. Reetz v. Michigan, 188 U. S. 505. It is not a right based upon principles of natural justice. “Having once been fairly and fully heard, the right to an appeal rests upon no natural equity ; and that a-party should by some misfortune be deprived of an opportunity to take an appeal, is a matter entirely different from his *541 having been deprived of an opportunity to be heard at all.” Excelsior Electric Co. v. Chicago Waif’s Mission, 41 Ill. App. 111, 116. The right of appeal, whether for the purpose of transferring a case to another court for retrial, or for the revision of rulings of law, is merely a statutory privilege granted to an aggrieved party upon certain conditions which must be strictly complied with. Bowers v. Gorham, 13 Conn. 528, 530 ; White v. Howd, 66 Conn. 264, 266. But in whatever light we regard the right to appeal, since it is a remedy which the plaintiff cannot now pursue, it would seem to be unfair to these defendants, who have obtained a favorable judgment, to impose upon them the burden and expense of a second trial, until it could be shown either that the first trial was in some way unfair or that some erroneous rulings were made at that trial. The present case is not one in which the defendants by some accident, mistake, fraud, or otherwise, have obtained an unfair advantage in a proceeding at law, and have so obtained a judgment which a court of equity will control in order to restore an injured party to his right. Stanton v. Embry, 46 Conn. 65, 76. That an aggrieved party has, by the death of the trial judge, been deprived of the privilege of having the rulings and judgment of the trial court reviewed by appeal, is not a ground for a new trial under the provisions of § 815. The causes for which new trials may be granted, described in that section, are only such as show that the parties did not have a fair and full hearing at the first trial; and the words “ or for other reasonable cause,” mean other causes of the same general character, and were not intended to include causes for which a new trial may be obtained by appeal under other statutes. Anderson v. State, 43 Conn. 514, 516; Brown v. Congdon, 50 id. 302, 309. Rulings in other jurisdictions, to which our attention has been called as applicable to the case before us, are so generally based upon statutory regulations or rules of court in regard to appeals and new trials different from our own, as to be of little weight as authorities under our laws and practice. *542 The Court of Common Pleas is advised to deny the .motion for a new trial. Costs will be taxed in this court in favor of the defendants. In this opinion the other judges concurred.