Sorden v. Hugo, Sheriff

All of the plaintiff's reasons of appeal rest upon the proposition, for which his counsel contends, that a mittimus could not, under the circumstances, issue for the execution of the sentence imposed upon him, in the absence of an order therefor entered upon a formal motion made by the prosecuting officer, and after a hearing thereon.

The proposition thus advanced is based upon the mistaken assumption that an automatic stay of execution was in operation as a consequence of the notice of appeal and the proceedings looking to an appeal then in progress. Counsel rely upon chapter 240 of the Public Acts of 1909 (p. 1183), for the creation of this stay. It will be noted, however, that the statutory stay results from an appeal to this court. There was none in the present case. Proceedings preparatory to an appeal do not constitute one. Pitkin v. NewYork N.E. R. Co., 67 Conn. 19, 21, 34 A. 704; Barton v. New Haven, 74 Conn. 729, 731, 52 A. 403. The statute has left the matter of stay of execution, during the period antecedent to an appeal, to the court in the exercise of its discretion. Counsel and the court rightly acted upon this assumption, when two successive limited stays were asked for and granted, and a third requested. In the exercise of its discretion the court was not restricted, by the statute or otherwise, as to procedure. It was bound not to abuse it. It was acting in the exercise of that discretion when it refused a further stay and ordered the mittimus to issue forthwith, and nothing is suggested upon the record to indicate that it was not properly exercised.

In our recital of the facts, and in our conclusions, we have for simplicity of discussion given the plaintiff the benefit, to the fullest extent, of the facts as he claims they were established by the evidence, and have not made use of certain facts and conclusions found and reached by the trial court to which he has objected as being unwarranted by the evidence.

There is no error.

In this opinion the other judges concurred.