Hine v. McNerney

116 A. 610, 97 Conn. 308, 1922 Conn. LEXIS 69

• Court: Supreme Court of Connecticut
• Decided: March 29, 1922
• Status: Published

Opinion

Burpee, J.

For reasons of appeal, the appellant defendant states four errors of which he complains.

The first is that the court erred in rendering judgment for the plaintiff. He does not “state the special errors complained of distinctly,” nor “the decision of the court upon any question or questions of law arising in the trial” by which he thinks himself aggrieved. General Statutes, §§ 5820, 5833. Such an assignment does not meet the requirements of these statutes; it is too general, and will be disregarded. Harper Machinery Co. v. Ryan-Unmack Co., 85 Conn. 359, 363, 82 Atl. 1027. “This is a sort of blanket objection which this court will not consider.” Fagerholm v. Nielson, 93 Conn. 380, 387, 102 Atl. 333.

The second reason assigned is that the court erred in overruling the defendant’s claims of law numbered 1 to 8 and 12 to 16 inclusive, as they appear in the finding. Of these, all but one are not really claims of law. During the trial the defendant undertook to establish his second defense by evidence sufficient to prove the necessary facts; and concerning the judgment to be rendered, he made certain claims which related to the sufficiency of the evidence to prove those facts. The trial court overruled these claims, and on the evidence found that the things depended on by the defendant were not facts, and that certain things disputed by him were facts. No question of law was presented to the trial court to decide. The overruling by the trial court of claims concerning facts to be found on the evidence, will not be regarded by this court as legitimate reasons of appeal.

In the third assignment of error the defendant complains that the court erred in finding all the principal facts stated in the finding without evidence and contrary to the weight of evidence; and in the fourth assignment, in refusing to find as facts substantially all of the matters set forth in the thirty-six paragraphs of his draft-finding. To support these complaints, he has caused the evidence in the case to be made a part of the record on this appeal. But he has not asked for any correction of the finding in the reasons of appeal. There is nothing in the record that gives this court authority to change the finding, and as it stands it unquestionably warrants the judgment. Since the appellant has neglected to take the necessary preliminary step of asking a correction of the' finding as a warrant for the correction of the judgment, he has no standing in this court. Durham v. Larom, 95 Conn. 475, 111 Atl. 832. “In the absence of an assignment of error presenting the claim for a correction of the finding, this court will not consider the correction of the finding even though the evidence be filed under § 5832.” Hartford-Connecticut Trust Co. v. Cambell, 97 Conn. 251, 254, 116 Atl. 186.

But if we were to disregard the defendant’s neglect to observe the long-settled procedure necessary to present such an appeal to this court, it by no means follows that this appeal would have prevailed. In effect the defendant requests this court, taking the evidence made a part of the record, to try the case again on the issue of fact, and to prefer and accept his inferences and conclusions in place of those of an impartial and trained trial court. It has been distinctly and repeatedly declared that this court will not consider such requests, and will not correct a finding of facts unless the record discloses that it includes matters found to be facts without evidence, or fails to include material facts which were admitted or undisputed. The determination of the trial court on conflicting evidence, or on the weight or effect of evidence, will not be disturbed. The powers and functions of the trial court, and of this court on appeal, could hardly be misunderstood or misinterpreted in the light of our decisions on these subjects. See Eudakaitis v. St. George's Lithuanian Soc., 87 Conn. 1, 3, 86 Atl. 562; Eastern Burlap Bag Co. v. Shay Fertilizer Co., 96 Conn. 139, 113 Atl. 151; Killian v. Bolster, 96 Conn. 693, 695, 115 Atl. 469. An examination of the record in the present case would demonstrate convincingly that the finding states no fact which was contrary to or without evidence, nor any conclusion reached illogically, illegally, or unreasonably.

The only question of law presented in this appeal was raised upon the fact that the title to the truck had been transferred to the plaintiff by an assignment written on a recorded conditional bill of sale by the person who had succeeded to the rights of the original vendor, and that this assignment was not dated; witnessed, acknowledged or recorded, and was therefore void. This defense is not set up in the answer, and this reason of appeal was not referred to in the brief or in the argument of the defendant before this court. It need not be considered.

There is no error.

In this opinion the other judges concurred.