Willet v. Clark

Emery, C. J. This was a personal action of trover for the conversion of personal property. It was begun in the Portland Municipal Court where judgment was rendered for the plaintiff. Whereupon the defendant duly appealed to the Superior Court for Cumberland County and duly entered his appeal. In the Municipal Court the only plea filed by the defendant was the general issue, but in the Superior Court he asked leave to add a brief statement that the title to the property described in the declaration was in himself. Leave to do this was granted against the plaintiff’s objection, and he excepted. The plaintiff urges that the only issue that could be formed and tried in the appellate court was that formed by the pleadings in the court of the first instance, and hence no new pleas can be allowed in the appellate court. This might be so if the appeal operated merely as a writ of error, but an appeal from a Municipal Court, or trial Justice, to a Superior Court, vacates the judgment of the lower court and removes the whole case to the Superior Court to be tried de novo upon both law and fact. The case is then no longer pend [24] ing in the' lower court and is pending only in the Superior Court, which, if the appeal be- properly taken, will render its own judgment and issue its own writ of execution without remanding the case to the lower court. . In considering and disposing of the case the Superior Court can allow amendments to pleadings and admit new pleas to be filed as fully as if the case had been originally brought in that court, except perhaps as to dilatory pleas. King v. Lacy, 8 Conn. 499; Stalbird v. Beattie, 36 N. H. 455. The amendment was clearly allowable. The cases cited by the plaintiff, contra, were cases where the title to real estate was put in issue by the pleadings in the lower court and the case was thereby transferred to a Superior Court for trial upon that issue, the judgment of that court to depend upon the determination of that issue. They were not cases-of appeal since the lower court rendered no judgment and, indeed, could not hear the case. They were cases where a particular issue was formed by the pleadings in one court and the case thereby, upon that issue alone, transferred to another court. In such cases ordinarily the only issue to be tried in the second court is that thus formed in the first court/ In holding that the amendment in the case at bar was allowable, we by no means, hold even by implication that it was necessary. Exceptions overruled.