The defendants contend that the language of Practice Book 320 requiring that a motion to set aside a verdict and for a new trial be filed within five days from the acceptance of the verdict or entrance of judgment is mandatory. The defendants cite Aubrey v. Meriden, 121 Conn. 361, 185 A. 87 (1936), in support of this proposition. In Aubrey, this court examined the requirement of a twenty-four hour filing deadline for a motion to set aside a verdict under a predecessor rule to 320, Practice Book (1934) 229.
Kelly, et al. v Connelly, et al., 1992 W.L. 24337 (Conn.Super., 1992). The court cited several cases that support its position, Goral v. Kenney, 26 Conn. App. 231, 234 (1991); Small v. South Norwalk Savings Bank, 205 Conn. 751, 758 (1988); Aubrey v. Meriden, 121 Conn. 361, 365 (1936). These cases all involve motions to set aside the verdict but no serious argument can be made that the plain language of P.B. § 16-35 makes a distinction with regard to filing periods for motions to set aside verdicts as opposed to motions regarding collateral sources.
By its very terms, 405 applies only to the "last day for filing" or terminal day of the time period. See Aubrey v. Meriden, 121 Conn. 361, 364-65, 185 A. 87 (1936). Our interpretation accords with the common law rule that "if the last day for performance of certain acts falls on a Sunday or a legal holiday, the doing of that act on the following day would be timely."
The finding of good cause lies largely within the discretion of the trial judge. Aubrey v. Meriden, 121 Conn. 361, 365, 185 A. 87. In view of the failure of the plaintiff to prove the sole ground advanced by him as a reason for extending the time limitation within which to file a motion to set the verdict aside, there was obviously no abuse by the court of its discretion.
The qualification of an expert is in the discretion of the trial court. Aubrey v. Meriden, 121 Conn. 361, 368, 185 A. 87. "The underlying principle is that if any reasonable qualifications can be established, the objection goes to the weight rather than to the admissibility. . . ." Wray v. Fairfield Amusement Co., 126 Conn. 221, 224, 10 A.2d 600; Sanders on v. Bob's Coaster Corporation, 133 Conn. 677, 682, 54 A.2d 270. While it appeared that Fennell's activities had been primarily concerned with shade trees rather than timber, he testified that he had made sales of standing trees for lumber purposes and that he was familiar with lumber values from that experience.
Here, where the sufficiency of the plaintiff's qualification to give testimony is in question, the fact that nothing indicating any lack of such qualification is included in the finding is sufficient to dispose of the first claim. See Aubrey v. Meriden, 121 Conn. 361, 368, 185 A. 87. The second merits no consideration, since the defendant failed to object at the conclusion of the charge as required by the rule. Practice Book, 156.
The question under consideration arises ordinarily when an objection to the qualifications of an expert are overruled and it is rare that a ruling on the allowance of such testimony is found erroneous, since the qualification of all expert is in the discretion of the trial court. Coffin v. Laskau, 89 Conn. 325, 329, 94 A. 370; Stressman v. Vitiello, 114 Conn. 370, 375, 158 A. 879; Aubrey v. Meriden, 121 Conn. 361, 368, 185 A. 87. The underlying principle is that if any reasonable qualifications can be established, the objection goes to the weight rather than to the admissibility of the evidence. Where it clearly appears that an expert witness is qualified to give an opinion, the exclusion of his testimony may be found to be erroneous. Germania Life Ins. Co. v. Ross-Lewin, 24 Colo. 43, 53, 51 P. 488.
We hold that 47a-35 is to be construed so that when the fifth day falls on a day when the clerk's office is closed an appeal filed on the next business day is deemed to be filed within five days from the date of judgment. We note that our holding today does not conflict with the teaching of Aubrey v. Meriden, 121 Conn. 361, 185 A. 87 (1936). In that case the Supreme Court held that a twenty-four hour time limit set out in the Practice Book for filing a motion to set aside a verdict was not extended because the clerk's office was only open until noon on Saturday and, therefore, was closed when the period expired.
The evidence fails to establish that these conditions have been fulfilled and therefore the court concludes that the plaintiff's reliance on the doctrine of res ipsa loquitur in order establish liability is not well placed. In addition, since the plaintiff proceeded affirmatively to establish its allegations in negligence its reliance on the res ipsa doctrine is thereby precluded, Cristini v. Giffin Hospital, 134 Conn. 282, 286; Aubrey v. Meriden, 121 Conn. 361, 367. The plaintiff in count four pleads to establish liability of the defendant based upon nuisance.
Accordingly, the first question to be resolved by the court is whether such an extension may be granted by the court after the expiration of the five day period. An examination of Small v. South Norwalk Savings Bank, 205 Conn. 741, 758; Aubrey v. City Meriden, 121 Conn. 361, 365, 366; and Goral v. Kenney, 26 Conn. App. 231, 234-235 indicate that Sec. 320 must be strictly enforced and that an extension of time can only be granted when a motion for extension has been timely filed before the expiration of the five day period. Accordingly, with some reluctance, the court must deny the Motion to Set Aside the Verdict.