Horowitz v. Maggelet

Murphy, J.

Upon the trial of this case before the jury, the plaintiff presented her evidence and rested her cause. Thereupon the defendant moved for judgment as in case of nonsuit. The motion was granted. General Statutes § 7977. The plaintiff filed a motion to set aside the nonsuit which was denied. Thereafter, the plaintiff filed an appeal to this court from the judgment of nonsuit.

The exclusive method of attacking the court’s action in rendering a judgment of nonsuit is to appeal from the denial of the plaintiff’s motion to set aside the judgment. Cum. Sup. 1955, § 3183d; Minicozzi v. Atlantic Refining Co., 143 Conn. 226, 227, 120 A.2d 924; Hannon v. Waterbury, 106 Conn. 13, 14, 136 A. 876; Chichester v. New Hampshire Fire Ins. Co., 72 Conn. 707, 708, 46 A. 151; Maltbie, Conn. App. Proc., § 11. As the plaintiff has not conformed to this exclusive method of appeal, she is not properly before this court. Inclusion of the denial of the motion to set aside the nonsuit in the assignment of errors does not cure the defect in the appeal itself. State v. Faatz, 83 Conn. 300, 307, 76 A. 295; see also Practice Book, Form No. 556. Under General Statutes § 8332, the plaintiff’s substantive rights are not concluded by this decision.

The appeal is therefore dismissed.

In this opinion the other judges concurred.