Opinion
The exclusive method of attaching the action of the court in rendering a judgment of nonsuit is to appeal from the denial of a motion to set aside the judgment. Since the present appeal was from the judgment instead of from the refusal to set it aside, the appeal was not properly before the court. The defect in the appeal was not cured by the plaintiff's assigning error in the denial of the motion to set aside the nonsuit.
Argued January 8, 1958
Decided February 4, 1958
Action to recover damages for breach of an agreement to allow the plaintiff to share in an estate, and for fraudulent representation, brought to the Superior Court in New Haven County and tried to the jury before Alcorn, J.; judgment of nonsuit and appeal by the plaintiff. Appeal dismissed.
The appellant filed a motion for reargument which was denied.
Louis Feinmark, with whom, on the brief, was Irving Smirnoff, for the appellant (plaintiff).
John J. Mezzanotte, with whom were Francis P. Barberio and, on the brief, William L. Hadden, for the appellee (defendant).
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.