Application of Title & Guaranty Co. of Bridgeport to Change Name to Bankers' Security Trust Co.

• Decision Date: 02 March 1929
• Parties: APPLICATION OF TITLE & GUARANTY CO. OF BRIDGEPORT TO CHANGE NAME TO BANKERS' SECURITY TRUST CO.
• Court: Connecticut Supreme Court

145 A. 151

109 Conn. 45

APPLICATION OF TITLE & GUARANTY CO. OF BRIDGEPORT TO CHANGE NAME TO BANKERS' SECURITY TRUST CO.

Supreme Court of Errors of Connecticut.

March 2, 1929

Appeal from Superior Court, Fairfield County; Earnest C. Simpson and Alfred E. Baldwin, Judges.

Application of the Title & Guaranty Company of Bridgeport to change name to the Bankers' Security Trust Company. On motion by the State and Bank Commissioner to reopen the judgment granting the application, the judgment was reopened, and said applicant appeals. Appeal dismissed, and cause remanded.

Maltbie and Banks, JJ., dissenting.

Lucius F. Robinson, of Hartford, and Lorin W. Willis, of Bridgeport for appellant.

Ernest L. Averill, Deputy Atty. Gen., and Benjamin W. Alling, Atty Gen., for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

WHEELER, C.J.

The motion by the state of Connecticut and its bank commissioner to reopen the judgment changing the name of the defendant from the Title & Guaranty Company of Bridgeport to the Bankers' Security Trust Company was based upon these allegations: The state of Connecticut and its Bank Commissioner had no notice of the pendency of the application and no opportunity to be heard thereon. Under the provisions of section 3420 of the General Statutes as amended by chapter 154 of the Public Acts of 1919 and chapter 235 of the Public Acts of 1921 it is provided that no corporation other than a bank or trust company incorporated under the laws of this state shall use as a part of its name, or as a prefix or suffix thereto, or as a designation of the business carried on by it, the word " bank," " banking," " banker," " bankers' trust," or " savings," or either of these words. The court did not take into consideration, in considering the application, all of the provisions of this section, nor pass upon the question whether the name, " the Bankers' Security Trust Company," did constitute or imply corporate powers or authority which such corporation does not by law possess, nor consider or pass upon the question as to whether or not the charter of such corporation confers upon it the powers of a bank or trust company. The other allegations of the motion express merely contentions, claims, or beliefs which do not set up issuable facts.

The defendant answered, first, by admitting paragraphs 1 and 3 of the motion in part 1 of the answer, denying other paragraphs, and pleading, as to others, lack of sufficient knowledge to deny. To these it added certain affirmative allegations which had no place in this defense. It answered further, presumably, although not so entitled, as a special or second defense. The paragraphs of this defense were demurred to by the plaintiffs, and the demurrer sustained; the reasons given are sufficient to support this ruling.

The demurrer to part 1 of the answer was sustained improperly, since this part of the answer consisted of admissions, denials, and lack of sufficient knowledge to deny. These paragraphs of part 1 of the answer raised issues of fact which could only be met by evidence sustaining the allegations of the motion to which we have referred. The state, subsequent to the sustaining of the demurrer, was permitted to amend its motion. Three of the paragraphs of this amendment recited the history of the original bill for the incorporation of this corporation when before the committee of the General Assembly, including the objections made to it by the bank commissioner. A demurrer by the defendant to these paragraphs was sustained. No question is raised on this appeal as to this ruling, nor as to the overruling of defendant's demurrer to paragraph 19.

The defendant thereafter filed its answer to paragraphs 15 and 19, denying paragraph 15 and paragraph 19 in part. On this condition of the record, no hearing was required except as to the denials of paragraph 15 and paragraph 19 in part, since the sustaining of the demurrer to the paragraphs of part 1 of the answer, however erroneous, for the time at least, removed them from the case. The court after hearing should have resolved the issues as to paragraphs 15 and 19. It should then have caused to be incorporated in the judgment file the rulings on demurrer and, either at length or by reference, the issues as determined as to paragraphs 15 and 19. After the rulings upon these demurrers and after issues joined on paragraphs 15 and 19, the court filed a memorandum of decision which upon its face would indicate that the court did consider the facts alleged in paragraphs 3, 4, 5, and 6 of the motion, the answer to which had been demurred to and the demurrer sustained. The court must have taken these allegations of the motion as admitted in view of the fact that no further answer was filed by defendants after part 1 of its answer had been removed, by demurrer, from the case. The defendant filed the day after the memorandum was filed a notice of appeal and subsequently its appeal setting forth among its assignments of errors the sustaining of the demurrer to part 1 of the answer.

We said in Bruce v. Ackroyd, 95 Conn. 167, 171, 110 A. 835, 836: " It has repeatedly been held that a memorandum signed by the judge cannot be taken or used as the record judgment. It is but a direction to enter judgment as distinguished from a judgment. and the judgment becomes final only when entered in a court from which execution can issue." Brown v. Cray, 88 Conn. 141, 146, 89 A. 1123; Hull v. Thoms, 82 Conn. 386, 391, 73 A. 793; Goldreyer v. Cronan, 76 Conn. 113, 117, 55 A. 594.

In Broughel v. So. New. Eng. Telephone Co., 72 Conn. 617, 624, 45 A. 435, 438 (49 L.R.A. 404), we say: " All courts are required to cause the facts upon which they found their final judgments, to appear on the record. General Statutes, § 1111 [now section 5795]. Such facts are adjudicated facts, found under the responsibility of the exercise of judicial duty and forming the basis of the judgment rendered." The judgment file is the only formal written statement which expresses the decision rendered. Corbett v. Matz, 72 Conn. 610, 45 A. 494, 48 L.R.A. 217.

Again, in Waterbury Lumber & Coal Co. v. Hinckley, 75 Conn. 187, 190, 52 A. 739, 740, it is said: " The record of the court in which the judgment was rendered, * * * was the only proper evidence of the judgment, in the absence of evidence that such record was lost or destroyed." Phoenix Ins. Co. v. Carey, 80 Conn. 426, 433, 68 A. 993.

" It is" to the judgment file " one must look to ascertain the facts upon which the judgment rests." Barber v. International Co. of Mexico, 73 Conn. 587, 597, 48 A. 758, 762.

" Our statutes require that in every case going into final judgment, whether tried to the court or jury, the court shall cause the facts on which it found such judgment to appear on the record. General Statutes, § 763; Scholfield Gear & Pulley Co. v. Scholfield, 70 Conn. 500, 503, 40 A. 182. The object of this section [section 722] is, first, to show what are those material facts within the issues which have been finally determined; and second, to present the question whether the judgment is the true voice of the law upon those facts." Nowsky v. Siedlecki, 83 Conn. 109, 116, 75 A. 135, 138; Corbett v. Matz, 72 Conn. 610, 614, 45 A. 494, 48 L.R.A. 217.

There was then no valid judgment rendered opening this judgment, merely a direction in the memorandum to enter judgment. There was no finding of the issues in the judgment file; without this there is no legal way of ascertaining the basis of the granting of the motion to open the judgment.

General Statutes, § 5795, requires that the facts upon which a decree is based shall appear of record. No disposition of a cause which denies this can be accepted as a judgment without error. Sturdevant v. Stanton, 47 Conn. 579, 581. There was also no finding of facts for purposes of appeal.

There was in this case no final judgment, and no appeal could have been properly taken except from a final judgment. Ordinarily a motion to erase an appeal is the proper and exclusive remedy if no final judgment has been rendered. Wardell v. Killingly, 96 Conn. 718, 115 A. 539.

We may, however, dismiss the appeal of our own motion without, as in this case, the request of either party. We are compelled to dispose of this case, as the record stands, without passing upon the main question the parties have argued and desire determined. All that we can now do to aid the speedy disposition of this case is to indicate the procedure to be taken. The dismissal of the appeal will leave of record a direction to enter a judgment opening the judgment of October 25, 1927, which direction could not have been rendered at that time, since upon the record the case had not been fully disposed of in the superior court.

Upon the dismissal of the appeal, the case must be remanded to be proceeded with according to law. That would involve, upon the record as it stands, a hearing and determination upon the allegations of paragraphs 15 and 19. If the issues were found adverse to the defendant, it could secure a finding, and appeal, including in its reasons the sustaining of plaintiff's demurrer to part 1 of the answer. If this ground of appeal were sustained, as it must be, the case would go back for a hearing on the issues raised by the motion and the denials in part 1 of defendant's answer. This long process is the only procedure on this record by which the issues arising on the allegations of the motion can be tested. But when the case is remanded, since, as we have stated, the demurrer to part 1 of the answer denying material allegations of the motion was wrongly sustained, the trial court would, no doubt, permit plaintiffs to withdraw their demurrer to part 1 of the answer,...