The motion to dismiss was based upon the taking of the appeal on June 30th, when the finding and award was made on June 16th. General Statutes, § 5366, as amended by Public Acts of 1919, Chapter 142, § 14, provides for the procedure upon an appeal from a finding and award by the commissioner, and limits the time within which either party may take his appeal to ten days after entry of such finding. Undoubtedly the General Assembly intended this provision to mean ten days after notice to the party of the entry of such finding; otherwise, in the event of the failure of the commissioner to notify the party of his finding and award within the ten-day period, the taking of the appeal would be fruitless.
In Orcutt's Appeal, 61 Conn. 378, 383, 24 A. 276, the question for decision was whether an appeal from probate, taken and allowed after the time limited *Page 353 by statute for doing so had passed, was void or merely voidable. We there observed (p. 384): "But it may be said that, in limiting the time in which an appeal from probate may be allowed, the statute was intended primarily to limit the power of the court to grant or allow an appeal. If this were true, of course no appeal could be taken by a party against whom the time had run. In such a case the cause as to that party would be one which was not appealable. We do not think, however, that this is the true construction of the statute. The statute prescribes that an appeal shall be taken within a certain time, but no words are used which necessarily prohibit the Court of Probate from granting an appeal after the limit has expired." Leavenworth v. Marshall, 19 Conn. 1; Brewster v. Shelton,24 Conn. 140; Hiscox's Appeal, 29 Conn. 561.
A similar construction must be given to the appeal allowed in this case. The failure to take the appeal within the ten-day period did not make the appeal void, but merely voidable. Objection to an appeal taken after the time for taking an appeal has expired, under our practice, must be taken by plea in abatement and not by motion to dismiss or erase. As early as Denslow v. Moore, 2 Day, 12, 21, in disposing of an objection of this character, we used this language: "Whether the appeal was taken within the time limited by the statute, was a question of fact; and if relied on, should have been pleaded in abatement." From that time to the present, the plea in abatement has been the approved method of attacking an irregularity of this kind.
We held that the plea in abatement was the appropriate remedy for the failure to bring a writ of error within the time limited by statute, Paiwich v. Krieswalis,97 Conn. 123, 126, 128, 115 A. 720; for the failure seasonably to file an appeal under General Statutes, *Page 354 § 5823, New York, N. H. H.R. Co. v. Illy,79 Conn. 526, 65 A. 965; Sisk v. Meagher, 82 Conn. 376,73 A. 785; and for the irregularity in taking the appeal to the wrong term of court. State v. Caplan,85 Conn. 618, 84 A. 280; Farnham v. Lewis, 83 Conn. 134,75 A. 625; Cramer v. Reeb, 89 Conn. 667,96 A. 154; Forbes v. Orange, 84 Conn. 577, 80 A. 710.
The motion to dismiss an appeal is an appropriate remedy where the court is without jurisdiction; Sisk v. Meagher, 82 Conn. 376, 378, 73 A. 785; or the appellant has not prosecuted his appeal with due diligence.Bronson v. Mechanics Bank, 83 Conn. 128,75 A. 79. Wherever the motion to dismiss or erase an appeal contains affirmative allegations requiring proof essential to the determination of the question involved, or relates to the manner in which the appeal was taken, a plea in abatement, and not a motion to dismiss or erase, is the appropriate remedy. EquitableTrust Co. v. Plume, 92 Conn. 649, 652, 103 A. 940;Bethel Redding Lime Co. v. New York, N. H. H.R. Co., 82 Conn. 135, 142, 72 A. 728; Sisk v.Meagher, 82 Conn. 376, 378, 73 A. 785; O'Brien'sPetition, 79 Conn. 46, 58, 63 A. 777; James v. Morgan,36 Conn. 348. The motion to dismiss the appeal because not seasonably taken should have been denied.
There is error, the judgment is set aside, and the cause remanded to be proceeded with according to law.
In this opinion the other judges concurred.