Opinion
Corrections in the finding will not be made, unless they will affect the judgment rendered. A finding, made on conflicting evidence, that the defendant never promised to pay the commission which the plaintiff seeks to recover, is final and conclusive. A judgment in favor of one of two defendants and against the other, upon a severable cause of action ex contractu, if not appealed from by the plaintiff, becomes final as between him and the successful defendant, although the losing defendant does appeal; nor does the successful defendant become a party to such appeal.
Argued January 19th, 1922
Decided February 21st, 1922.
ACTION to recover a real-estate broker's commission, brought to the City Court of Waterbury which rendered judgment in favor of the defendant Simon Korkin and against Ray Korkin, from which the latter appealed to the District Court of Waterbury, Peasley, J.; facts found and judgment rendered for the defendant (Ray Korkin), and appeal by the plaintiff from the judgment of the District Court. No error.
Edward Mascolo, for the appellant (plaintiff).
Philip Bernstein, for the appellee (defendant Ray Korkin).
Some of the paragraphs of plaintiff's draft-finding should have been marked "proven" instead of "not proven," but were these changes made in the finding the judgment must remain unaffected.
The trial court found that the defendant never promised to pay the broker's commission for which plaintiff sues. This finding was made on conflicting evidence, and since it cannot be disturbed it concludes the case.
Plaintiff's fifth reason of appeal is that he is aggrieved by the judgment rendered in favor of Simon Korkin in the City Court. That judgment was not appealed from by him. It therefore became a final judgment. 15 Special Laws (1915), Chap. 168, § 3; Sargent Co. v New Haven Steamboat Co., 65 Conn. 116, 31 A. 543; Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24, 37, 33 A. 533.
The appeal of the other defendant, Ray Korkin, from the judgment of the City Court to the District Court, did not operate to make the other defendant, Simon Korkin, a party to the appeal. In an action of tort against several, we held the judgment to be severable, and that an appeal by one of two defendants against whom such judgment had been rendered by a justice of the peace, vacated the judgment only as to the defendant appealing. Chapin v. Babcock, 67 Conn. 255, 256, 34 A. 1039. The original cause of action in this case was against two defendants and upon an action ex contractu, not joint but severable; hence the judgment against Ray Korkin, when appealed from by her, did not operate to vacate the judgment in favor of Simon Korkin which was unappealed from and hence became final. Note 60 Amer. State Reps. 659; 15 R. C. L. p. 699, § 150.