Jensen v. Nationwide Mutual Insurance Company

The defendant Virginia Brockett, a
minor, instituted an action for damages against
the present plaintiffs. They seek, in the action
at bar, a declaratory judgment to determine the
liability of the named defendant, hereinafter
called Nationwide, under a policy issued by it to
the named plaintiff. The trial court rendered
judgment declaring that Nationwide was not liable
under the policy. The defendant Brockett appealed
from this judgment. Nationwide filed a motion to
dismiss the appeal on the ground that the appeal
bond obligates the defendant Brockett only to the
plaintiffs and therefore provides Nationwide with
no security for costs. Practice Book 379 states that unless security
for costs is given, "the appeal shall be void and
of no effect." See State v. Pallotti, 119 Conn. 70,
74, 174 A. 74. Nevertheless, we have held that
"void," as used in the rule, means "voidable."
This result was achieved because the security
required "is solely for the protection of the
appellee" and may be waived by him. Palmer v. Des
Reis, 135 Conn. 388, 389, 64 A.2d 537;
Maltbie, Conn. App. Proc. 120, 121, 275. It appears from
the file that the appeal and the appeal bond were
filed together on April 21, 1960. The motion to
dismiss was filed on April 27, 1960, which is
within the ten-day period required for filing such
a motion under Practice Book 436. Since Nationwide
has filed a timely motion, it cannot be said that
it has waived the claimed defect.