Ide v. Crown Super Market of New Haven, Inc.

The Appellate Division rules for the Circuit Court provide generally, among other things, that appeals shall be filed within two weeks from the issuance of notice of the rendition of a judgment; and that service of all appeal papers shall be made by counsel in the manner set forth in § 118 of the Practice Book, as amended. Cir. Ct. Rules 7.5.1, 7.3.1.

The court rendered judgment for the plaintiff in the instant case on June 29, 1961. The defendant's appeal papers were filed timely in quadruplicate with the appellate clerk for the eighth circuit on July 10, 1961. The plaintiff moved on July 17, 1961, to dismiss the defendant's appeal for want of jurisdiction (Cir.Ct. Rule 7.37.1) because service of the appeal papers was not made, as required by Rule 7.3.1, in the manner set forth in § 118 of the Practice Book, as amended. Parenthetically, it is noted that the plaintiff's plea in abatement and to the jurisdiction of the defendant's appeal, filed simultaneously with her motion to dismiss, was withdrawn prior to oral argument. Therefore it requires no discussion. After the plaintiff had filed her motion to dismiss, the defendant properly served the appeal papers on July 21, 1961, when the time to file its appeal had expired.

When a valid rule of court requires filing and service of an appeal, the requirements of the rule must be strictly observed, and if they are not, the appeal will be dismissed for lack of jurisdiction. Section 51-265 of the General Statutes provides that the right to appeal to the appellate session of the Circuit Court shall be exercised according to rules of procedure established by the judges of the Circuit Court. The Appellate Division rules for the Circuit Court establish a system of filing and service of papers. Rule 7.5.1 makes mandatory the time within which to file an appeal, and Rule 7.3.1 explicitly states where the appeal papers shall be filed and that service of appeal papers shall be made by counsel in the manner set forth in § 118 of the Practice Book, as amended. That section of the Practice Book, as amended, provides only for the manner of service of all appeal papers. It does not prescribe the time within which appeal papers to the Appellate Division of the Circuit Court must be served upon opposing counsel.

Because no rule prescribes the time within which service of appeal papers shall be made, it must be permitted to be made within a reasonable time after filing. For when a right is given, as here, the right to appeal, and no time is prescribed for service of the appeal papers, a reasonable time is allowed. The intent of our rules is to facilitate appeals and advance justice. Any other interpretation of the rules would work injustice in a situation such as this, where the plaintiff has been served and has been in no way prejudiced. Practice Book § 471.

The motion to dismiss must be decided upon the record, which reveals that the defendant's appeal was filed timely in the place where it was required to be filed and that it was served by counsel in the manner set forth in § 118 of the Practice Book, as amended, within a reasonable time thereafter.

The motion to dismiss is denied.

In this opinion WISE and STAPLETON, Js., concurred.