State v. One Red M. G. Convertible

6 Conn. Cir. Ct. 282

• Court: Connecticut Appellate Court
• Decided: June 12, 1970
• Docket: File No. CR 2-35170
• Status: Published

Opinion

Jacobs, J.

It is undisputed that on September 23, 1968, Eric Norman Person, defendant in the present proceedings, was convicted in the Circuit Court in the second circuit of the crime of usury (loan sharking) in violation of § 37-4 of the General Statutes,¹ as a consequence of which he was subject to the penalties provided for under § 37-7.² On May 22, 1968, the state had instituted this proceeding in rem by summoning Eric Norman Person, described in the summons as the owner of the automobile in question, “and all others to whom it may concern” to appear before the Circuit Court to be held at Bridgeport on May 29, 1968, then and there to show cause why property, being a “1967 Midget M.G. Sport Convertible, color red, Conn. Reg. 821-604”, which was allegedly seized on May 22, 1968, at 6 p.m., at 6 Bloomfield Drive, in Fairfield, for a violation of § 37-4, “should not be adjudged a nuisance and ordered to be destroyed, or otherwise disposed of as by law provided.” See § 54-33g. The record shows that Eric Norman Person and the State National Bank, a party claiming an interest in the property, each formally appeared in the proceeding by separate counsel.

On January 21, 1969, after a hearing at which all interested parties were present and were heard on the merits, the automobile was adjudged “a nuisance and was ordered to be disposed of by being turned over to the Bridgeport Police.” On January 31,1969, the defendants appealed from the judgment. No finding was requested and none was made. See Practice Book §§ 979,³ 980. In the circumstances of this case, “[a]n objection to the form of a citation comes very late from a party, after he has appeared, been heard, [and] appealed the case to the . . . [Appellate Division].” State v. Brennan’s Liquors, 25 Conn. 277, 285. Moreover, “[t]he detailed procedure above outlined furnishes ample protection to all parties in interest and deprives no one of his property without due process of law.” Pickett v. Marcucci’s Liquors and Containers, 112 Conn. 169, 179.

The first question to be determined is how far this court, upon this record, may consider the alleged errors.

Section 54-33g of the General Statutes “is not a criminal statute, hut provides for a civil action in rem for the condemnation and forfeiture of the car which was used in violation of the law.” Alcorn v. Alexandrovicz, 112 Conn. 618, 623; see Pickett v. Marcucci’s Liquors and Containers, supra, 180; State v. One 1960 Mercury Station Wagon, 5 Conn. Cir. Ct. 1, 6; State v. Rosario, 2 Conn. Cir. Ct. 399, 402; Aponte v. Rivera, 2 Conn. Cir. Ct. 337, 342; 37 C.J.S. 15, Forfeitures, § 5(e). “In a civil action such as this, inclusion of the whole transcript in the record is improper and imposes an intolerable burden on the appellate court.” Underhill v. Bennett, 4 Conn. Cir. Ct. 443, 445; see Vereen v. Roth, 5 Conn. Cir. Ct. 484, 486. “The appellate court is not to make its own investigation but is limited to examining what happened in the trial court to see whether error was committed. To do this it must have a record of what happened. . . . [T]he burden is on appellant to see that .it includes enough to show that a challenged ruling was made and was erroneous.” James, Civil Procedure § 11.3, p. 524.

Since the record in this case contains no stipulation signed by the parties or their attorneys,⁴ nor any finding of facts,⁵ nor anything else on which error can be assigned, the judgment below must be presumed to be correct. As there is no question open to reexamination on this fragmentary record, it must follow that the judgment below must be affirmed.⁶

There is no error.

In this opinion Kosicki and Cásale, Js., concurred.

1 “‘Sec. 37-4. LOANS AT GREATER RATE THAN TWELVE PER CENT prohibited. No person and no firm or corporation or agent thereof, other than a pawnbroker as provided in section 21-44, shall, as guarantor or otherwise, directly or indirectly, loan money to any person and, directly or indirectly, charge, demand, accept or make any agreement to receive therefor interest at a rate greater than twelve per cent per annum.”

2 “See. 37-7. penalty. Any person who, individually, or as a member of any firm, or as an officer of any corporation, or as an agent of any firm or corporation, violates any provision of section 37-4, . . . shall be fined not more than one thousand dollars or imprisoned not more than six months or both.” See State v. Griffith, 83 Conn. 1, aff’d, 218 U.S. 563.

3 Effective July 1, 1969, Practice Book § 979 (Statement Bequiring Finding) was repealed and the following was substituted: “Sec. 979. —request for finding; draft finding. If the appellant desires to have reviewed the court’s conclusions upon the facts, he shall add to his appeal a statement to that effect and annex thereto a draft of such findings. If such a statement and draft finding are not so filed, the appellant shall be deemed to have waived his right to a finding.”

4 The parties agreed upon an “agreed statement of facts” in Alcorn v. Alexandrovicz, 112 Conn. 618. 390 Rec. & Briefs, back of p. 3.

5 “The trial court made a finding of facts in Pickett v. Marcucci’s Liquors and Containers, 112 Conn. 169. 382 Rec. & Briefs, back of p. 1595.

6 Memorandum on Motion to Beargue

Richard A. Bieder, of Bridgeport, for the appellants (defendants).

John F. Mulcahy, Jr., deputy chief prosecutor, for the appellee (state).

Per Curiam. This case was argued before this court on January 12, 1970; on February 20, 1970, in affirming the judgment, we said: “As there is no question open to reexamination on this fragmentary record, it must follow that the judgment below must be affirmed.” On March 9, 1970, the parties filed a motion to reargue on the grounds that (1) “[t]hrough technical error, the facts stipulated to by all parties and the trial court were not included in the record on appeal”; (2) “[s]uch stipulation will be available for this court on reargument”; and (3) “[t]he determination of the issues of this case is of major importance to the dispensing of justice in the State of Connecticut.” We ordered a hearing on the motion at a session of this court held on May 11, 1970. The parties attempted by means of a “Finding of Facts by Trial Court Stipulated to by Appellant and Appellee,” which they have asked us to accept, to allow reconsideration of the appeal. The proposed stipulation of facts is a paper signed after trial and after our affirmance of the judgment and was intended to take the place and serve the purpose of a finding. In spite of the deficiencies which have plagued this record from the very start (and this is by no means “record worship”), we have examined the stipulation submitted by the parties. We take note of a paragraph which recites: “The State National Bank of Connecticut and Eric Norman Person each appeared formally through counsel, at the . . . ‘in rem hearing.’” Thus, as we point out in our opinion, “all interested parties were present [at the in rem hearing] and were heard on the merits.”

We remain convinced that we were correct in our original opinion; accordingly, we adhere to our original opinion.

Kosicki, Casale and Jacobs, Js., participated in this decision.