Opinion
File No. MV 4-3269
Where the defendant, believing that in the summer the time limitations in connection with appeals to the Appellate Division were suspended, delayed in filing his request for a finding and his draft finding, the Division, in the exercise of its discretion, decided to deny the state's motion to dismiss the appeal for failure to prosecute with due diligence.
Argued October 19, 1962 —
Decided November 19, 1962
Motion by the state to dismiss the defendant's appeal from a judgment of the Circuit Court in the fourth circuit, Monkiewicz, J. Motion denied.
Patrick Zailckas, of Waterbury, for the appellant (defendant).
Raymond Quinn, assistant prosecuting attorney, for the appellee (state).
The state moved to dismiss the appeal for failure to prosecute with due diligence. Such a motion is addressed to the court's discretion. The state properly abandoned its second ground for dismissal, that the defendant failed to file his assignment of errors in time, for the motion to dismiss on this ground was not made within the proper time limit. Cir. Ct. Rule 7.37.1.
The motion of the defendant to set aside the verdict was denied on June 26, 1962; his appeal was duly filed on July 9, 1962. He did not file a request for a finding or a draft finding, although his intention was to assign error in the charge to the jury. Cir. Ct. Rule 7.32.1. His attorney stated that this was his first Circuit Court appeal, that he was not familiar with the rules of the Circuit Court and that he assumed that the suspension of time limitations during the summertime which applies in appeals to the Supreme Court of Errors under § 414 of the Practice Book applied to the Circuit Court. Within a few days after the state had moved to dismiss the appeal, the defendant, on August 28, 1962, filed a request for a finding and a draft finding. Under the circumstances and in view of the comparatively short lapse of time involved, the motion to dismiss is denied. All Time Mfg. Co. v. Van Steenburgh, 22 Conn. Sup. 464, 465.