(a) Any party who intends to appeal or has appealed a final judgment of the Superior Court, or of a judge thereof, an appeal from which properly lies, may move the court in writing for a new trial if the judge who rendered judgment, or the stenographer or court reporter who took the testimony at the original trial therein if his stenographic notes are not decipherable, has died or become incapable of taking the action necessary for the appeal, and the party had complied with the rules relating to the taking of appeals before such death or incapacity.

(b) The motion shall be filed in the court within ten days after the death or incapacity of the judge or stenographer or court reporter has become known to the party appealing from the judgment.

(c) The motion shall contain a statement of errors which are claimed to have occurred in the trial of the matter.

(d) After hearing the motion, the court shall grant a new trial if, in its opinion, the errors claimed to have been committed are of such a nature as fairly entitle the party appealing to a review of the errors by appeal and a review of the errors cannot otherwise be had.

(1949 Rev., S. 8009; 1959, P.A. 28, S. 119; 1967, P.A. 25, S. 1; P.A. 74-183, S. 94, 291; P.A. 76-436, S. 485, 681; P.A. 82-160, S. 140.)

History: 1959 act deleted reference to judgments rendered in municipal courts which were abolished; 1967 act added circuit court to purview of section; P.A. 74-183 removed circuit court from purview of section, reflecting transfer of its functions in reorganization of judicial system, effective December 31, 1974; P.A. 76-436 removed court of common pleas from purview of section, reflecting transfer of all trial jurisdiction to superior court, effective July 1, 1978; P.A. 82-160 rephrased the section and inserted Subsec. indicators.

Rule before act was passed. 76 C. 534; 105 C. 718. Does not apply to constitutional incapacity arising where judge becomes disqualified because of age after judgment and before finding made; scope of section is mental or physical incapacity. 97 C. 565. Cited. 105 C. 718. Allegations which a motion under section should contain, stated. 134 C. 480. Court's conclusion that notes were decipherable and transcript substantially correct, upheld. 136 C. 705. Although referee died before making finding requested by appellants, new trial properly denied as issues raised on appeal were matters of law not requiring the finding. 168 C. 135. Cited. 195 C. 60; 213 C. 486.

Defendant's oral motion for new trial which did not include the necessary statement of errors does not satisfy requirements of section. 69 CA 21.

Cited. 14 CS 503. Statute not applicable when judge dies after directed verdict and before decision on motion to set aside verdict. 25 CS 60. Statute only applicable when judge dies after final judgment. 46 CS 650.