Hoyt and another against Brooks, 10 Conn. 188

Daggett, Ch. J. The question in this case, is, whether an appeal lies from a judgment of non-suit in the county court, to the superior court,. It may well be doubted, whether a party can ever be compelled to submit to anon-suit; but it is not ne- , , . ... cessary to decide that question, m this case. Whether this cause is appealable, depends entirely on our statute ; and it is not known, that there are any decisions to aid us in the construction of it. This statute (tit. 2. p. 51, 2.) contains all the regulations applicable to appeals from the county court.

They will be found in the 62d, 63d, 64th, and 65th sections of the act. If by force of these sections, this appeal can be sustained, the plea in abatement must be over-ruled ; otherwise, it must be adjudged sufficient. The 63d

section points out the course to be pursued, by the superior court, in a cause brought there by appeal from the county court, when it is not appealable. It directs, that it shall be remanded to the county court, there to be proceeded with as to justice shall appertain. This

section does not bear on the question. The 64th

section provides for the removal of actions by appeal from justices of the peace, to the county court, if the demand be less than seven dollars, and thence to the superior court, those wherein is drawn in question a right to obstruct a water-course, or a right to the use of land as a way. It will not be urged, that this case is at all of that description. Equally inapplicable is the 65th section, which provides for the removal of actions of trespass quare clausum fregit from justices of the peace to the county court, &c. We have, then, only to consider the 62d section. The words of the

section bearing on this question, are : “ In any action brought to, and tried by, the county court, wherein the title of land is drawn in question and determined, or wherein the debt, damage or matter in dispute shall exceed the value of seventy dollars, (except it be on bond or note vouched by two witnesses) if either party shall be aggrieved, by the sentence or judgment of such court, an appeal shall be allowed to the next superior court,” &c. The inquiry is, has this cause been tried by the county court ? The answer is obvious. The court refused to try it.

A non-suit was ordered ; and to this the plaintiffs submitted. The plaintiffs, then, are clearly not within the letter of the enactment. Are they within the spirit 1 Here, it is insisted, that the court have arbitrarily refused to try a cause, and ordered it out of court. Be it so. Is this the subject of appeal ? The court below, it is to be presumed, has acted discreetly : be this as it may, is this a legal mode of revising their de-cisión ?

What if an infeiior court should continue a cause from term to term, or refuse to allow a party to plead, or direct a cause to be erased from the docket, or impose any improper condition on a party ; will an appeal from any such proceeding lie ? I think not. Whatever other remedy, whether by writ of procedendo, mandamus or error, may be sought, by the party aggrieved, an appeal does not lie, except where a cause has been tried. Light may be shed on this point, by resorting to the statute authorizing appeals from probate.

Slat. 208, 9. tit. 32. c. 1. sect. 36. “ If any person shall be aggrieved, by any order, sentence, denial, or decree or judgment of a court of probate, in the settlement of an estate, such person may appeal therefrom to the superior court,” &c. The difference in the language employed is palpable. Every act of the court of probate, is subject to revision, by appeal. In the case under consideration, an action tried and a sentence or judgment rendered, can be appealed from.

Besides, if every cause might be appealed from the county to the superior court, on account of a supposed error in any interlocutory determination of the court, much delay and inconvenience would ensue. The statute has wisely limited the right of appeal to causes tried and decided. The superior court must be advised, that the plea in abatement is sufficient. The other Judges were of the same opinion, except Peters, J., who was absent. Plea in abatement sufficient.