(dissenting.) _ I concede the premises upon which the reasoning contained in the majority opinion proceeds, so far as to admit that the word “judgment,” when used in a statute without qualification, must be construed to mean the final or completed judgment in a cause, and not the decision of the court overruling a demurrer, or ordering the defendant to answer over after a plea in abatement. If, therefore, the statute had remained as in the Revision of 1866, p. 19, sect. 88, authorizing an appeal from the judgment of a justice of the peace rendered in any case, it would be clear that the present appeal could not be sustained. But the law controlling this case is found in the Revision of 1875., p. 415, sect. 15, which provides that “in all civil actions, except those of summary process, brought before a justice of the peace, an appeal from any judgment rendered therein upon any issue may be had and allowed to either party.” Here are restrictive words qualifying the judgment and also the issue—“ any judgment upon any issue.” It is not easy to conceive for what purpose these words were inserted, unless to include a judgfnent other than the final one upon an issue other than final. The meaning of the word “judgment” is restricted and limited by the words “ any issue,” so ■that if the pleadings terminate in any distinct issue of law or fact, the decision of the court concluding the parties on that issue is a judgment that may be appealed from within the meaning of the statute.
This construction is further fortified by referring to the language of the previous statute. The act of 1871 (Session Laws, 1871, ch. 75,) provided for an appeal from the final judgment rendered in any action. When this act was passed and before that time appeals had been allowed on pleas of abatement under the implication contained in another statute (Revision of 1866, p. 20, sect. 91*) referring to the liability *374of a defendant to pay costs, if he should' appeal on a plea in abatement and fail to make good his plea, although on the merits the cause might be decided in his favor. Russell v. Monson, 33 Conn., 506.
In order to prevent the words “ final judgment,” as used in the act of 1871, from cutting off such appeals, the act of 1873, chapter 21, p. 135, was passed, which in express terms provided against any such construction as would prevent appeals from judgments rendered on pleas in abatement.
Now in the statutes of 1875 the omission of the word “final” before the word “judgment,” and the substitution of the words—“any judgment on any issue”—while at the same time the provision in the act of 1873 entirely disappears as no longer necessary, have to my mind great significance, and render it reasonably clear that the legislature in adopting such a change must be held to have intended to allow appeals from judgments both on demurrers and pleas in abatement.
But against this construction the opinion of the majority refers to the evils that might result from it, under the statute regulating the entry of copies on appeal, which provides, in substance, that if the appellant neglects to take out and enter the copies in the higher court, the appellee, at any time during the term after the second opening of the court, may do so “ and have judgment affirmed with additional costs.” General Statutes, 1875, p. 416, sect. 17.
In reply I would suggest—1st. That this objection lies with equal force against allowing an appeal from the judgment of respondeas ouster on a plea in abatement. Yet such appeals have long been and are now allowed upon the mere implication contained in a statute providing for costs. Bus-sell v. Monson, supra; General Statutes, 1875, p. 420, sect. 2. —2d. The objection in my mind has no force, because I do not concede that the appellate court must necessarily stop with a simple affirmance of the judgment as rendered by the justice. In giving these general directions the law naturally speaks of affirming the particular judgment rendered by the court below, because that was vacated by the appeal, and in the majority of the cases 'nothing more is necessary. But *375if in a particular case anything further is needed to secure the rights of the appellee and to prevent the neglect of the appellant from injuring the appellee, I think the power of the court over the cause does not cease simply by affirming the judgment appealed from. The effect of the appeal is to confer on the appellate court full jurisdiction over the cause, and as incidental to this jurisdiction it may if necessary proceed to render final judgment. The statute does not prohibit such a course, and the fact that it gives the party a right to have judgment affirmed ought not to be construed as conferring only a limited jurisdiction on the higher court.
The construction which the majority opinion assumes is to be given to the statute regulating appeals seems quite likely to suggest to some litigious defendant to try the experiment of appealing from the judgment of respondeas ouster on a plea in abatement and purposely neglecting to enter his copies. If such a case should arise is this court prepared to accept the idea that the statute referred to must be construed to restrict the power of the appellate court to a mere repetition of a harmless order to an absent defendant to “ answer over,” with no power to supplement or enforce the order by proceeding to render final judgment ? I should hope not.
I think there was no error in the judgment complained of.
In this opinion Park, 0. J., concurred.