Banca Commerciale Italiana Trust Co. v. Westchester Artistic Works, Inc.

• Decision Date: 02 March 1929
• Citation: 109 Conn. 23,145 A. 20
• Court: Connecticut Supreme Court
• Parties: BANCA COMMERCIALE ITALIANA TRUST CO. v. WESTCHESTER ARTISTIC WORKS, INC., ET AL.

145 A. 20

109 Conn. 23

BANCA COMMERCIALE ITALIANA TRUST CO. v. WESTCHESTER ARTISTIC WORKS, INC., ET AL.

Supreme Court of Errors of Connecticut.

March 2, 1929

Appeal from Superior Court, Fairfield County; John Richards Booth Judge.

Action by the Banca Commerciale Italiana Trust Company against the Westchester Artistic Works, Incorporated, and others, to foreclose a mortgage, brought to the superior court in Fairfield county, in which two supplemental judgments, one confirming a sale of the mortgaged premises and ordering a resale at the charge of a defaulting purchaser, and the other confirming the resale and adjudging the purchaser at the first sale liable for a deficiency in the price paid, were upon motion of the first purchaser, reopened and set aside by the court, and appeal by the plaintiff. No error.

See also, 108 Conn. 304, 142 A. 838.

Harold L. Knapp and Ralph E. Brush, both of Greenwich, for appellant.

Joseph G. Shapiro and Harry B. Dinerstein, both of Bridgeport, for appellee Beach Realty Co.

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

MALTBIE, J.

In pursuance of a judgment of foreclosure entered on February 25, 1927, directing a sale of the mortgaged property, the committee appointed to make the sale sold the property on April 9, 1927, to the G. F. Beach Realty Company, Incorporated, hereinafter called the Beach Company, for the sum of $4,361.83, of which amount $500 was paid in cash at the time of the sale. On June 3, 1927, the committee reported that it had made the sale to the Beach Company, but that the latter had defaulted in making payment, and made a motion that the report be accepted and the sale confirmed, and that the Beach Company be adjudged in default and a resale ordered; the company to be held liable for the difference between the price at which it had bought the property and that realized on the resale, with allowance for the $500 it had paid. A notice of this motion was personally served by the committee upon the treasurer of the Beach Company either on June 1 or 2, 1927, and was by him turned over to the president of the company, an attorney at law. The court granted this motion and entered judgment accordingly on June 3, 1927, appointing the same committee to make the resale. On June 24, 1927, the committee reported that it had sold the property at a price less than that at which the Beach Company purchased it, and the court on that day entered judgment confirming the second sale and fixing the liability of the Beach Company for the deficiency in the sum of $3,811.83. Thereafter, on August 26, 1927, the Beach Company moved the court to reopen the judgments of June 3, 1927, and June 24, 1927, and the court granted the motion and set aside these judgments, from which action the plaintiff appealed. A motion to erase the appeal from the docket, on the ground that the action of the trial court in reopening and setting aside the judgments was not such a " final judgment" as permits an appeal, was denied. Banca Commerciale Italiana Trust Co. v. Westchester Artistic Works, Inc., 108 Conn. page 304, 142 A. 838.

The trial court opened and set aside the judgment because, before the order of resale was made, no rule was served upon the Beach Company to show cause why it should not be held in default and an order of resale be made charging it with any deficiency in the price realized. The plaintiff claims that the notice of the pendency of the motion of June 3, 1927 which was served by the committee upon the treasurer of the company and was by him given to the president of the company, was sufficient. In Mariners' Savings Bank v. Duca, 98 Conn. 147, 118 A. 820, the purchaser at resale received no notice other than that afforded by the placing of the motion upon the short calendar, and this was held sufficient; but the purchaser was originally a party to that action as a subsequent incumbrancer, had appeared, and the court inferred that, as an appearing party, he was represented at the hearing when the court ordered the resale. We there pointed out that procedure by a rule to show cause was the orderly and fair method to pursue. By his purchase, the purchaser does become so far a party to the action that he submits himself to the jurisdiction of the court. But before any order may be made for a resale of the premises at his charge, he is entitled to present any facts which may lead the court, acting upon equitable principles, to hold him not to be in default of his obligation under his purchase. Camden v. Mayhew, 129 U.S. 73, 86, 9 S.Ct. 246, 32 L.Ed. 608; Gordon v. Saunders, 2 McCord, Eq. (S. C.) 151, 152; Marsh v. Nimocks, 122 N.C. 478, 480, 29 S.E. 840, 65 Am.St.Rep. 715; Clarkson v. Read, 15 Grat. (Va.) 288, 298; Burton v. Linn, 21 A.D. 609, 47 N.Y.S. 835, 837. He is not so far a party that by statute or practice he is called upon to enter an appearance, and his failure to do so does not place him in a position where he may be treated as one in default of appearance. Before he may be adversely affected by a...