Where the grounds of remonstrance to the report of a committee appointed to reappraise damages and benefits from street improvements did not show that the result would have been different, had the committee made different rulings on evidence, the committee's report will not be rejected, because the report failed to state the rulings on evidence. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 601; Dec. Dig. § 235.*] 6. EMINENT DOMAIN (§ 237*) — REPORT OF COMMITTEE CONCLUSIVENESS. The finding of the committee appointed to reappraise benefits and damages from street improvements, as to the amount of damages and benefits, is conclusive, and will not be retried by the court on remonstrance. had been signed by the mayor and recorded, and the property owners' damages paid or deposited in the city treasury, subject to the owners' order, the land was not lawfully taken when judgment was entered in proceedings to reassess damages and benefits, where the damages had not then been paid into the treasury, so that no interest was allowable upon the amount assessed as damages by the judgment. Domain, Cent. Dig. §§ 638-643; Dec. Dig. § [Ed. Note.-For other cases, see Eminent 247.*] Appeal from Superior Court, Fairfield County; Edwin B. Gager, Judge. Action by Ella J. Fox and others against the City of South Norwalk. From a judgment for plaintiffs, defendant appeals. Reversed and remanded in part. Appeal asking for a reappraisal of benefits and reassessment of damages accruing to the plaintiffs from the lay-out, widening, and grading of a public street, brought to Hon. Edwin B. Gager, a judge of the superior court, who accepted the report of a committee by him appointed to make such reapprais [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 604-613; Dec. Dig. § al and reassessment, and rendered judgment 237.*] - 7. EMINENT DOMAIN (§ 101*) — STREET IMPROVEMENTS-DAMAGE. In determining the damage to a property owner from the opening of a street, the committee appointed to assess damages and benefits should consider loss or damage to trees, though not removed or wholly destroyed, loss of driveway, and the cost of bringing the highway nearer to the owner's house. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 269, 270; Dec. Dig. § 101.*] MENT OF BENEFITS. thereon. The defendant appeals for alleged errors of the judge in refusing to recommit the report, as requested by the defendant, in sustaining a demurrer to the defendant's remonstrance to the acceptance of the report, and in allowing interest on the amounts assessed by the committee. Error in part. John Keogh and Nehemiah Candee, for appellant. John H. Light, for appellees. THAYER, J. (after stating the facts as 8. EMINENT DOMAIN (§ 234*) — REASSESS- above). A committee, appointed by Judge The reassessment of benefits and dam-Gager to reappraise and reassess benefits and ages from the laying out of a street should be made as of the date when the committee's re port, designating the line of the laying out and grade, was accepted by the common council. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 592-600, 603; Dec. Dig. § 234.*] 9. EMINENT DOMAIN (§ 235*)-ASSESSMENT OF DAMAGE-REMONSTRANCE TO REPORT. Error in fixing damage to property taken for street improvements as of a different date from that of the taking would only be a ground for remonstrance to the report of the committee, if the owner was injured thereby. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 601; Dec. Dig. § 235.*] 10. EMINENT DOMAIN (§ 239*)-STREET IM PROVEMENTS — ASSESSMENT OF DAMAGES — JURY TRIAL. Neither under the charter of the city of South Norwalk, nor under the general statutes, was the city entitled to have the jury make a reassessment of the damages from laying out a street; only property owners being entitled to a jury. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 615-620, 675, 676, 678, 680; Dec. Dig. § 239.*] 11. EMINENT DOMAIN (8 247*)-WIDENING STREET - ASSESSMENT OF DAMAGES INTER damages, assessed the damages accruing to the plaintiffs from the lay-out, widening, and grading of the street in question at a greater sum than was assessed in their favor on the original assessment, and appraised their benefits at a lesser sum. When the report came in, the defendant moved for its recommittal to the committee with instruc tions that it should be so amended as to state all the rulings upon evidence admitted or excluded by the committee against the defendant's exceptions, to state all the claims of law which were made by the defendant upon the hearing, and to state all the subordinate facts upon which the conclusions as to benefits and damages were based. The motion was denied, except that the report was referred back for a statement of the specific elements of damage taken into account by the committee in reaching its conclusions as to the damages. [1] The committee was appointed to make a reappraisal and reassessment of benefits and damages. Having done so, it was his duty to report to the judge who appointed him the assessment of benefits and damages. found by him. It was not his duty to make a full finding of all the subordinate facts, nor of the claim of law made by the par ties before him, nor of his rulings upon evi- | harmful to the remonstrant. Geary v. New dence. This may be done by a committee Haven, 76 Conn. 84, 91, 55 Atl. 584. The (McKeon v. Byington, 70 Conn. 429, 432, 39 facts relied upon by the remonstrant are Atl. 853); but, unless substantial questions thus spread upon the record. If the other are raised at the hearing which the com- party claims that there were no such rulings mittee has reason to believe one of the par- as claimed, he can answer the remonstrance ties will desire to pursue before the court, by a denial of the facts alleged. If he adupon remonstrance, it is better to report the mits that the rulings complained of were ultimate fact, without loading the record made, but claims that they were correct, or, with a full report of the hearing. In like if not correct, not harmful to the remonmanner, where only a single question or few strant, he may demur. The questions which questions, not calling for a full report of the the court or judge is to try upon a remonproceedings, are raised, the committee may strance are the questions of fact or law thus report the fact or facts necessary to present presented. The questions of fact tried by such questions, and omit all facts not neces- the committee cannot be retried by the court sary to their proper presentation. This is a upon a remonstrance. proper course to pursue where the committee is informed that the ruling is to be questioned on a remonstrance; for thus, in a simple way, is placed upon the record the rulings of the committee complained of, so that the party claiming to be aggrieved thereby may, without setting out the facts and rulings in his remonstrance, get a ruling of the court as to the correctness of the committee's action. [2] Where this course is not pursued by the committee, the court, upon motion, may doubtless recommit the report, to be so amended that the rulings by which a party claims to be aggrieved shall appear. But this is within the discretion of the court (Wilcox v. Meriden, 57 Conn. 120, 124, 17 Atl. 366), and will only be done when it is made to appear to the satisfaction of the court that the party moving may be aggrieved by the rulings complained of. The defendant's motion, of which the disallowance in part is made a ground of appeal, did not state the nature of any of the rulings which it asked the judge to direct to be found, nor that the defendant was aggrieved thereby, or by the conclusions drawn from the subordinate facts which it asked the court to have reported. It was a request for a full finding by the committee, without stating that such finding would show the defendant to be aggrieved by any ruling or fact which would thereby appear. The court, in denying the motion, so far as it did deny it, committed no error, but exercised wisely its discretion. Were this not the case, error could not be predicated upon the judge's action in disallowing the motion, as it was addressed to his discretion. Wilcox v. Meriden, supra, 57 Conn. 124, 17 Atl. 366. [3, 4] Where the committee reports only the ultimate fact found, the party claiming to be aggrieved by any ruling or conduct of the committee on the hearing, and seeking relief therefrom, must, unless the court, on motion, recommits the report, file a remonstrance against the acceptance of it, and therein state specifically the rulings complained of, with such facts as, it is claimed, show their materiality to the issue before the [5] When the supplemental report ordered by the judge in the present case came in, the defendant filed a remonstrance thereto and to the original report. The first ten and the twentieth grounds of remonstrance relate to the failure of the committee to set out in the report his rulings upon evidence, and upon the claims of law made before him by the defendant, and to his failing to give a detailed statement of the subordinate facts; and it is alleged that the committee failed to state these rulings and facts. What the rulings were is not stated. There is no allegation that such rulings were wrong, and no facts are stated showing them to be so, or that the defendant was harmed thereby. The demurrer to these grounds of remonstrance was properly sustained. The amount of the reassessment is clearly stated in the report, and it does not appear from these grounds of remonstrance that the result would have been affected, had different rulings been made, or that the defendant is harmed by the committee's failure to state them and the subordinate facts in his report. These grounds of remonstrance, therefore, present no reason why the report should not be accepted. Gray's Appeal, 80 Conn. 248, 251, 67 Atl. 891. [6] The twelfth and thirteenth, the seventeenth and eighteenth, and the twenty-first to the twenty-sixth, inclusive, grounds of remonstrance each state that damages assessed are too large or benefits appraised too small. The amounts of the damages and benefits were questions of fact to be determined by the committee, and his finding is conclusive, and the question will not be retried by the court. Bradley v. Bassett, 13 Conn. 560, 563; Waterbury River Turnpike Co. v. Litchfield, 26 Conn. 209, 210; Ashmead v. Colby, 26 Conn. 287, 312; Sheppard v. Atwater, 43 Conn. 448, 452; Stannard v. Sperry, 56 Conn. 541, 546, 16 Atl. 261; State v. N. Y., N. H. & H. R. R. Co., 60 Conn. 326, 338, 22 Atl. 765; Betts v. Conn. Life Ins. Co., 76 Conn. 367, 373, 56 Atl. 617. These grounds of remonstrance were therefore insufficient, and the demurrer thereto was properly sustained. for loss of trees, for loss of driveway, and for bringing the highway nearer to the house of one of the plaintiffs than it had previously been furnished the foundation of the fourteenth, fifteenth, sixteenth and nineteenth grounds of remonstrance. That each of these is a proper item to be considered in determining the damages to be assessed must be conceded. The fact that some of the trees were not in fact removed does not affect the matter. If the trees were damaged, their life. shortened, or their beauty destroyed, as is here found to have been the case, those facts were proper matters to be considered in determining the owner's damage by the public improvement. The fact that the committee considered these items was brought into the supplemental report in response to the judge's order "to show what elements of benefit and damage respectively were taken account of by the committee." They are mentioned only as elements of damage which were considered by the committee. Whether the committee allowed too much on account of these, or any of them, is a question which could not be raised on the remonstrance, without showing some mistake or error of law affecting the result. As they are proper ele ments to be considered in fixing the amount of the reassessment, and no mistake or error of law is pointed out by the remonstrance as having entered into the determination of the amount of damages, the remonstrance was insufficient. [8] The original assessment of benefits and damages was made as of the date when the committee's report, designating the lines of the lay-out and grade, was accepted by the court of common council. The reassessment should have been of the same date. The report does not show that it was not made as of that date. jury to reassess the damages under section 2067 of the General Statutes. The motion was properly denied. Whether the application for reassessment was brought under the defendant's charter or under the provisions of the General Statutes, the defendant was not entitled to move for a jury to make a reassessment for the reasons stated in Montville v. Alpha Mills Co., 85 Conn. 1, 81 Atl. 1051, recently decided. Only the persons whose lands are taken are entitled to move for a jury under the statute. [11] The committee's report was accepted, and judgment entered for the amount of the assessments, with interest added from the date of the original assessment, December 23, 1908, in favor of the plaintiffs, with costs. The action of the judge in adding interest to the amount of the assessments is stated as one of the reasons of appeal to this court. Had the original assessment been unappealed from, the defendant's charter gave it 60 days in which to pay the assessment. No provision for interest during that time is made by the defendant's charter, and no interest could have been claimed. By the provision of the city charter, the plaintiffs' land could not be lawfully taken until a descriptive survey of the highway lines and grade, as provided for, had been signed by the mayor and entered upon the records of the city, and the plaintiffs' damages had been paid or deposited in the city treasury, subject to their respective orders. As their damages had not been paid at the legally taken at that time, in the sense that date of the judgment, the land had not been the owner had been deprived of its use or damaged by the contemplated change of lines and grade or taking of the land. terest, therefore, was allowable upon the amount of the assessments. Bishop v. New Haven, 82 Conn. 51, 57, 72 Atl. 646. In so far as interest was allowed, the judgment was erroneous. No in The case is therefore remanded, with the direction that the judgment be set aside, and a judgment in favor of the plaintiffs be entered for the amounts assessed by the committee and costs. Costs in this court will be taxed in favor of the defendant. The other Judges concurred. [9] The defendant's eleventh ground of remonstrance is that "the sums awarded by the committee as damages were not predicated upon the value of the petitioner's rights at the time of taking." It would be erroneous to fix the damages on the reassessment as of any other date than that of the taking, because one of the parties to the proceeding might thereby be injuriously affected. But, unless the defendant was so affected, it had no ground for complaint. Its remonstrance, to be sufficient and show a ground for refusing to accept the report, should (Supreme Judicial Court of Maine. March 19, have made it appear, not only that the committee erred in failing to assess the damages as of the time of the taking, but that it was injured thereby. Having failed to so allege, the demurrer to this ground of remonstrance was properly sustained. Ferguson v. Stamford, 60 Conn. 432, 444, 22 Atl. 782. SHURTLEFF v. REDLON. 1912.) (Syllabus by the Court.) 1. DISMISSAL AND NONSUIT (§ 58*)-JudgMENT (8 570*)-INVOLUNTARY DISMISSALBAR OF SUBSEQUENT PLEA-PRESUMPTION. A motion to dismiss is properly denied, whatever be the merits or demerits of the action itself, when on the face of the writ apnot be assumed that the court at nisi prius pear neither defects nor defenses, and it will went beyond the scope of the motion, and at [10] Before the report of the committee was accepted, the defendant moved for a tempted to decide questions which the motion | vember 23, 1910. Commissioners were duly did not properly raise. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 134-139; Dec. Dig. § 58; Judgment, Cent. Dig. 88 1028-1095; Dec. Dig. § 570.*] 2. EXECUTORS AND ADMINISTRATORS (§§ 246, 247*)-CLAIMS AGAINST ESTATE-APPOINTMENT OF COMMISSIONERS. Under R. S. c. 66, § 54, relating to the appointment of commissioners to determine claims alleged to be exorbitant, unjust, or illegal, the claimant has not the option of either further maintaining a pending suit or submit ting his claim to the commissioners, but must do the latter, and the report of the commissioners is final, saving the right of appeal. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 870-890; Dec. Dig. §§ 246, 247.*] 3. EXECUTORS AND ADMINISTRATORS ($243*) -ACTION-CONDITIONS PRECEDENT-"MAIN TAIN." The word "maintained," as used in section 54, c. 66, R. S., means to prosecute to a conclusion an action already begun. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 865; Dec. Dig. § 243.* For other definitions, see Words and Phrases, vol. 5, pp. 4277-4281; vol. 8, p. 7712.] 4. EXECUTORS AND ADMINISTRATORS (§ 223*) CLAIMS AGAINST ESTATE STATUTORY PROVISIONS. Under R. S. c. 66, § 54, a claim is committed when service of notice of the application filed in the probate court by the executor or administrator is made upon the claim ant. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 767; Dec. Dig. § 223.*] Exceptions from Supreme Judicial Court, Cumberland County. Action by Herbert B. Shurtleff against Annie B. Redlon, executrix. Heard on exceptions by plaintiff. Exceptions overruled. Assumpsit on an account annexed against the defendant in her capacity as executrix to recover the sum of $3,345.15, "and was heard on demurrer to the defendant's brief statement filed with her plea of general issue." The presiding justice overruled the demurrer, and ordered judgment for the defendant, and the plaintiff excepted. The ruling of the presiding justice overruling the demurrer was as follows: "Demurrer to defendant's brief statement, which serves the purpose of a plea in bar, and the statements in which are agreed to be true. "The date of the writ is November 28, 1910. appointed, and, after notice to the plaintiff, they met to hear and determine the claim, and did so against the protest of the plaintiff. The commissioners filed their report in the probate court, and it was accepted. The plaintiff filed notice of an appeal from the award of the commissioners, but did not prosecute his appeal. Upon these allegations I think that after the defendant filed her petition in the probate court November 21, 1910, and in any event after the notice of the hearing thereon was served on the plaintiff, November 23, 1910, the probate court had sole and exclusive jurisdiction to determine in manner provided by statute the validity and amount due of the plaintiff's claim, subject to appeal, and, if this be so, it follows that the Supreme Judicial Court did not have original jurisdiction in this matter at the time this action was commenced. But it is alleged that pending the proceedings in the probate court, to wit, at the January term, 1911, of this court, the defendant filed a motion to dismiss this action on the ground that it was commenced after the petition above mentioned had been filed in the probate court, which motion was at the same term denied. It is contended by the plaintiff that this denial was a judgment which bars or estops the defendant from further setting up the probate proceedings in defense; in other words, that the defendant is concluded by a denial of her motion to dis miss. I do not think so. A motion to dismiss reaches only such defects or defenses as are apparent upon the face of the writ. It is not available to present defenses dehors the writ. It raises no issue as to matters not disclosed by the writ. Upon a motion to dismiss, the court has no jurisdiction to determine any issue upon any matter that is not apparent by an inspection of the writ. In this case the motion to dismiss was properly denied, whatever be the merits or demerits of the action itself, because on the face of the writ there appeared no defects nor defenses, and I must assume that the presiding justice did not go beyond the scope of the motion to dismiss and attempt to decide questions which the motion to dismiss did not properly raise. "Therefore, the entry will be, 'Demurrer to brief statement overruled,' and, since the parties agree that the facts are correctly and truly stated in the brief statement, a further entry will be: Judgment for the defend ant.'" Memo. The commissioners appointed by the probate court allowed the plaintiff on his claim $105.51, with $11.34 interest. Service on defendant, December 2, 1910. By the allegations in the brief statement, it appears that prior to the date of the writ, to wit, November 21, 1910, the defendant filed her petition in the probate court, representing that the claim now sued was exorbitant, unjust, or illegal, and praying for the appointment of commissioners in accordance with the statute. Notice was ordered for a hearing thereon December 7, 1910, and William H. Gulliver, for plaintiff. Anthoine the notice was served on the plaintiff No- & Talbot, for defendant. The case is stated in the opinion. Argued before WHITEHOUSE, C. J., and CORNISH, KING, BIRD, HALEY, and HANSON, JJ. BIRD, J. This is an action of assumpsit | claim so committed unless proved before said on account annexed, and is here upon excep- commissioners; and their report of all such tions to the overruling of plaintiff's demurrer claims shall be final, saving the right of apto defendant's brief statement, filed with her peal." plea of the general issue, and the ordering of judgment for the defendant by the justice presiding at nisi prius. It appears that, upon plaintiff presenting to defendant a statement in writing of his claim against her testator, the defendant on November 21, 1910, filed her petition in the probate court representing the claim to be exorbitant, etc., and praying the appointment of commissioners to determine the amount to be allowed. A day was appointed for a hearing and notice ordered, service of which was made on plaintiff November 23, 1910. On the 28th day of the same November plaintiff commenced this action against defendant, declaring upon the identical claim set out in his written statement, and service was made upon defendant December 2, 1910. Seven days later commissioners were duly appointed by the probate court. At the return term January, 1911, the defendant filed a motion to dismiss this action upon the ground that it was commenced after the filing of the petition of defendant for the appointment of commissioners upon the same claim declared on. On the 9th day of March, 1911, the time appointed for hearing, the plaintiff appeared specially before the commissioners, and filed written objections to a hearing upon the claim on the ground that they had no jurisdiction because of the commencement and pendency of this action. The plaintiff then presented to the commissioners a sworn statement of his claim, introduced evidence in its support, and his case was argued by counsel. March 31, 1911, the commissioners filed their report in the probate court which was on the same day duly accepted and allowed by the court. On the 11th day of April following the plaintiff filed notice of appeal which was ordered filed on the 17th day of said April. Subsequently, at the October term, 1911, the defendant filed in this action a plea of the general issue and a brief statement substantially setting forth the facts already recited. The plaintiff demurred generally to the plea of the general issue and to the brief statement demurred specially. The demurrer to the brief statement was overruled, and, it appearing that the parties agreed that the facts are correctly stated in the brief statement, the further entry of judgment for defendant was made and plaintiff excepted. The questions raised by the bill of exceptions to adopt the statement of plaintiff's counsel are, first, the effect of the overruling of a motion to dismiss so called, which contained all the substantial facts which were later made the subject of a plea in bar, to which plea in bar the defendant demurred, and, second, the construction of the following language in section 54 of chapter 66, R. S.: As to the first question, it is urged by plaintiff upon authority of a work of acknowledged excellence that the objection to the suit having once been disposed of cannot be raised in another form. The statement purports to be based upon Cassidy v. Holbrook, 81 Me. 589, 18 Atl. 290; Coxe v. Higbee, 11 N. J. Law, 395; and Witmer v. Schlatter, 15 Serg. & R. (Pa.) 150. In the first case a plea in abatement was overruled for technical error, and exceptions were overruled. The conclusions of the court relied upon to support the text are obiter dicta merely. 81 Me. 592, 18 Atl. 290. In Coxe v. Higbee a plea in abatement had been sustained upon its merits, and the court refused to allow the same matter to be pleaded in bar, and Witmer v. Schlatter simply holds that, if a plea of abatement fails to give plaintiff a better writ, an error of plaintiff arising from such failure will not be ground for plea of abatement in a second suit. In this case [1] Upon a careful examination of the record, we agree with the conclusion reached by the learned justice presiding at nisi prius, which is best expressed in his own language: "Upon a motion to dismiss the court has no jurisdiction to determine any issue upon any matter that is not apparent by an inspection of the writ. the motion to dismiss was properly denied, whatever be the merits or demerits of the action itself, because on the face of the writ there appeared no defects nor defenses, and I must assume that the presiding justice did not go beyond the scope of the motion to dismiss and attempt to decide questions which the motion to dismiss did not properly raise." See, also, Hunter v. Heath, 76 Me. 219, 222. [2] Section 54 of chapter 66, R. S., was first enacted by, chapter 115 of the Public Laws of 1859 and remains in the present revision substantially as originally enacted. It in many respects resembles and was doubtless suggested by the provisions of R. S. c. 68, relative to the appointment of commissioners to decide upon claims against insolvent estates of deceased persons. Many of the sections of the latter chapter, including those giving and regulating appeals, are made expressly applicable to proceedings under R. S. c. 66, § 54. By section 19, c. 68, R. S., it is provided that "actions pending on claims not preferred when a decree of insolvency is made, may be discontinued without costs; or continued, tried and judgment rendered with the effect, and satisfied in the manner, provided in cases of appeal. No action can be commenced, except on a preferred claim, after such decree." That is, no action, except the action for money had and received by way of |