Procaccino v. Wood Wood, Inc.

The plaintiff has moved to dismiss an appeal of the defendants on the ground that it was not taken within the time allowed. The defendants demurred to the motion in that it did not allege that the time for filing the appeal had not been extended by the judge who presided at the trial.

The entries in the docket of the trial court show the following facts: On July 27, 1962, the court rendered judgment for the plaintiff, and the judgment file was prepared and mailed out; on August 13, 1962, the defendants' appeal was filed; and on August 20, 1962, the plaintiff filed his motion to dismiss the appeal.

Rule 7.5.1 of the Circuit Court states that a party appealing must file his appeal within two weeks from the issuance of notice of the rendition of a judgment. An appeal not taken within the time limited is voidable, the defect being waived unless it is taken advantage of by a motion to dismiss, filed within ten days after the ground for dismissal arises. Cir. Ct. Rule 7.37.1. Prior to 1951, such a defect was subject to a plea in abatement, but the present rules have abolished the distinction between pleas in abatement and motions to erase or dismiss, leaving only motions to dismiss.

To the motion to dismiss, the defendant demurred. "No such procedure is known to our practice. The motion to dismiss must be decided upon the question or questions of law arising on the facts upon the record and hence there is no occasion for any procedure following it save a hearing thereon."Ragali v. Holmes, 111 Conn. 663, 665; see Practice Book §§ 436, 436A; Maltbie, Conn. App. Proc. § 277.

The appeal not having been filed within two weeks of July 27, 1962, and there being no extension of time to appeal on record and the motion to dismiss having been filed within ten days after the ground for dismissal arose, the motion to dismiss is granted. State v. Phillips, 24 Conn. Super. Ct. 74; SpicerFuel Co. v. Padgett, 23 Conn. Super. Ct. 402.

The demurrer is stricken and the appeal is dismissed.

KINMONTH, PRUYN and JACOBS, JS., participated in this decision.