Summary
holding failure to comply with statutory requirement that petition for new trial in civil matter be served by writ and complaint deprived court of subject matter jurisdiction to consider petition
Summary of this case from Turner v. StateOpinion
(10995)
Argued November 3, 1992
Decision released December 22, 1992
Action to recover damages for breach of contract, brought to the Superior Court in the judicial district of Danbury where the defendants filed a counterclaim; thereafter, the matter was tried to the court, W. Sullivan, J.; judgment for the plaintiff on the complaint and on the counterclaim; thereafter the court denied the defendants' petition for a new trial, and the defendants appealed to this court. Improper form of the judgment; judgment directed.
Elizabeth Audet, pro se, the appellant (defendant).
Jack L. Grogins, for the appellee (plaintiff).
The pro se defendants appeal from the denial of their "petition for a new trial" filed on December 10, 1991, following a judgment rendered against them on May 24, 1991.
"The threshold question that must be determined is whether this court has jurisdiction over the appeal. Although this issue was not raised by the parties, the court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear." Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985).
A petition for a new trial in a civil matter is governed by General Statutes 52-270. "The petition is instituted by a writ and complaint served on the adverse party; although such an action is collateral to the action in which a new trial is sought, it is by its nature a distinct proceeding." State v. Asherman, 180 Conn. 141, 144, 429 A.2d 810 (1980). Here, the defendants' "petition for a new trial" was not served separately by writ and complaint. The failure to bring a petition for a new trial as a separate proceeding deprives the trial court of subject matter jurisdiction. In re Clifton B., 15 Conn. App. 367, 370, 544 A.2d 666 (1988); State v. Servello, 14 Conn. App. 88, 101-102, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988). Therefore, the defendants' pleading was, in fact, an improperly brought "petition for a new trial." The trial court should have dismissed it because the court lacked subject matter jurisdiction. State v. Smith, 15 Conn. App. 502, 503, 545 A.2d 1150 (1988).
The court "denied" the "petition for a new trial" and, even if we conclude that the trial court treated this as a motion for a new trial, which is governed in a civil action by Practice Book 320, the appeal should be dismissed for lack of a final judgment. A motion for a new trial must be brought within five days after the day judgment is rendered. The granting or denial of a motion for a new trial is not an appealable final judgment, however. State v. Asherman, 180 Conn. 141, 143, 429 A.2d 810 (1980); Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 575, 87 A.2d 137 (1952); State v. Kemp, 124 Conn. 639, 644, 1 A.2d 761 (1938). It therefore follows that the defendants' appeal from the court's denial, even if treated by the trial court as a motion for a new trial, is not taken from a final judgment. "Since the lack of a final judgment is a jurisdictional defect, the appeal must be dismissed." Guerin v. Norton, 167 Conn. 282, 284, 355 A.2d 255 (1974).