Kasarauskas v. McLaughlin , 25 Conn. Super. Ct. 60 ( 1963 )

Plaintiff's personal injury action was tried to a jury before the Honorable Frank T. Healey in December, 1962, resulting in a directed verdict for the defendant. Plaintiff's motion to set aside the verdict had been argued and was awaiting decision at the time of Judge Healey's untimely death. Since no final judgment had been rendered, § 52-268 of the General Statutes does not apply, and plaintiff asks that a mistrial be declared and the case set down immediately for a new trial.

Defendant opposes this motion and counters with a motion under § 51-44 of the General Statutes for the appointment of another judge "to proceed therewith as if the subject matter had been originally brought before him." This statute applies only if the term of office of the judge "expires during the pendency of any proceeding before him," and although defendant argues that Judge Healey's term expired by reason of his death, there is a distinction. If, for example, the term expires rather than the judge himself, he is still available to certify the transcript — sometimes a very important function in case of a dispute as to what actually occurred. No one knows how the motion to set aside would have been decided or what was in Judge Healey's mind when he directed a verdict. Another judge appointed to complete disposition of this case would have to know these things — in addition to familiarizing himself with the entire transcript of testimony and the exhibits. Zamatha v. Harak, 134 Conn. 480,482, 483, although not squarely in point, indicates that a new trial would be in order on the present set of facts.

Defendant's motion for the appointment of a judge under § 51-44 is denied and plaintiff's motion for a mistrial and assignment for a new trial on the next current assignment list is granted.