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

• Decision Date: 27 July 1928
• Citation: 142 A. 838,108 Conn. 304
• Court: Connecticut Supreme Court
• Parties: BANCA COMMERCIALE ITALIANA TRUST CO. v. WESTCHESTER ARTISTIC WORKS, INC., ET AL.

142 A. 838

108 Conn. 304

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

Supreme Court of Errors of Connecticut.

July 27, 1928

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. From reopening of two supplemental judgments in foreclosure action, one confirming a sale of mortgaged premises and ordering resale at charge of first purchaser, and the other confirming the resale and adjudging purchaser at first sale liable for deficiency in the price paid, plaintiff appeals. On motion by purchaser at first sale to erase the appeal because not taken from a final judgment. Motion denied.

Ralph E. Brush, of Greenwich, for appellant.

Joseph G. Shapiro, of Bridgeport, for appellee G. F. Beach Realty Co., Inc.

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

MALTBIE, J.

This is action for the foreclosure of a mortgage. On February 25 1927, judgment was entered for a foreclosure by sale, a committee was appointed to make the sale, and provision was made for its conduct. On June 3, 1927, the committee reported that he had sold the property to the G. F Beach Realty Company, Incorporated, and had received a deposit of $500, but that the company had thereafter defaulted in the terms of its agreement of purchase. On the same day the plaintiff made a motion asking that the report be accepted and the sale confirmed and also that the Beach Company be held in default and a new sale 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. This motion the court granted that day and entered judgment accordingly, appointing the same committee to make the resale. The committee on June 24, 1927, reported that it had resold the property at a price which left a deficiency under the price at which the Beach Company purchased it at the first sale. On the same day the court 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 reopened and set aside those judgments. From this action the present appeal is taken by the plaintiff.

The initial question is presented by a motion of the Beach Company to erase the appeal from the docket because the action of the trial court in reopening and setting aside the judgments was not such a " final judgment" as permits an appeal. That by becoming a purchaser at the first sale the Beach Company became so far a party to the action that it might appear and prosecute the motion does not admit of doubt. Mariners' Savings Bank v. Duca, 98 Conn. 147, 155, 118 A. 820; Blossom v. Milwaukee & C Railroad Co., 1 Wall. 655, 17 L.Ed. 673; Kneeland v. American Loan Co., 136 U.S. 89, 93, 10 S.Ct. 950, 34 L.Ed. 379. An appeal lies only from a " final judgment" and an attempted appeal from a judgment not final should be erased from the docket. General Statutes, § 5820; Martin v. Sherwood, 74 Conn. 202, 50 A. 564; Morse v. Rankin, 51 Conn. 326, 328; Russell Lumber Co. v. Smith & Co., 82 Conn. 517, 74 A. 949. A judgment may, however, be final in the sense in which that word is used in the appeal statute, although the case still remains in court for further proceedings, and although it affects only the rights or obligations of certain of the parties. Guarantee, etc., Deposit Co. v. Philadelphia, R. & N.E. R. Co., 69 Conn. 709, 714, 38 A. 792, 38 L.R.A. 804; Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24, 37, 33 A. 533; Finch v. Ives, 24 Conn. 387. The test lies, not in the nature of the judgment, but in its effect as concluding the rights of some or all of the parties. If such rights are concluded, so that further proceedings after the entry of the order or decree of the court cannot affect them, then the judgment is a final judgment from which an appeal lies. ...