State v. Smith

Per Curiam.

In the instant case the court filed its finding on October 24, 1969. Under § 987 of the Practice Book, the defendant had two weeks to either file his assignments of error or a motion to correct the finding. He did neither, nor did he request an extension of time as provided for by § 954 of the Practice Book. On November 17, 1969, the state filed a motion to dismiss the appeal for failure to file papers on time. On November 25, 1969, the defendant filed a motion to correct the finding.

The sole question before us is whether the appeal ought to be dismissed for failure to file an assignment of errors or a motion to correct the finding within the time prescribed by the rules of court. In Loomis v. Zoning Commission, 144 Conn. 743, 746, the court said: “Where a timely motion to dismiss is based merely on the failure to file papers on time, the court has only to decide whether as a fact there was a failure to file papers within the time limited by tbe rules.” In the instant case the motion to dismiss was properly filed by the state. We have no occasion to consider whether the defendant prosecuted the appeal with proper diligence, or any other ground. Since the motion to dismiss was filed within ten days after the ground for dismissal arose, the motion to dismiss the appeal is granted. Practice Book § 976.¹

Kosickt, Dearington and Kinmonth, Js., participated in this decision.

1 The defendant in his brief relies on MacArthur v. Cannon, 4 Conn. Cir. Ct. 208 n.1. The present case is distinguishable in that the MacArthur case deals with the late filing of briefs, and, as pointed out therein, the Circuit Court rules as to briefs are different from the Supreme Court rules.