Dunn v. Flynn

• Citation: 107 Conn. 272,140 A. 204
• Court: Supreme Court of Connecticut
• Decision Date: 27 January 1928
• Parties: DUNN v. FLYNN ET AL.

140 A. 204

107 Conn. 272

DUNN v. FLYNN ET AL.

Supreme Court of Errors of Connecticut.

January 27, 1928

Appeal from City Court of Hartford; Herbert A. Ross, Judge.

Action by Charles P. Dunn against Daniel G. Flynn, administrator and others, to foreclose a mortgage on real estate and for a deficiency judgment. There was a judgment granting a decree of strict foreclosure, but denying plaintiff's prayer for a deficiency judgment, and he appeals. Error, and cause remanded with directions.

Arbitrators chosen by private parties to determine a controversy which has arisen between them are to be distinguished from referees and auditors, who derive their power to administer justice by the act of law.

Walfrid G. Lundborg and Milton D. Newman, both of Hartford, for appellant.

Vincent W. Dennis, of Hartford, for appellee Flynn.

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

MALTBIE, J.

This is an appeal from a judgment in foreclosure, wherein the trial court, having decreed a strict foreclosure, thereafter on an application for a supplemental judgment refused to award the plaintiff damages to which he claimed to be entitled by reason of a deficiency in the value of the mortgage security to satisfy the debt. Where a strict foreclosure has been decreed, the court is authorized by section 5197 of the General Statutes, upon motion of any party, to appoint three disinterested appraisers, who are to appraise the mortgaged property within 10 days after the time limited for redemption has expired and make written report to the clerk of the court, and the court may in a supplemental judgment in the same action award to the plaintiff the difference between the value of the mortgaged property as fixed by such appraisal and the amount of his debt. Taking advantage of this statute the plaintiff moved for the appointment of three appraisers and the court made that appointment. These appraisers were unable to agree and two reports were made; one, signed by two of them, fixing the value of the mortgaged property as $8,000, and the other, signed by the third, fixing that value as $10,000. The trial court ruled that there was no appraisal filed which complied with the terms of the statute, and itself found the value of the mortgaged property, fixing it as $10,000. As the debt due the plaintiff with costs amounted to $4,542.44, and there were prior incumbrances amounting to $5,310.46, making a total of $9,852.90, it refused to render judgment for the plaintiff to recover any deficiency.

The first statute in this state authorizing the rendering of a deficiency judgment in foreclosure provided that the value of the mortgaged property should be ascertained by the court. Public Acts of 1833, c. 18. The statute under which these proceedings were taken commits the function of determining that value to the appraisers appointed by the court and provides that their appraisal shall be final and conclusive. It is clear that they act in a quasi judicial capacity. Norwich Gas & Electric Co. v. Norwich, 76 Conn. 565 571, 57 A. 746. The law is well settled that where the determination of matters of public concern as distinguished from those of private confidence are committed to a group of persons, the decision of a majority, at least where all have acted together in hearing and considering the matter at issue, is a valid and effectual performance of the duty intrusted to them. Crone v. Daniels, 20 Conn. 331, 333; Gallup v. Tracy, 25 Conn. 10, 17; Martin v. Lemon, 26 Conn. 192; Smith v. New Haven, 59 Conn. 203, 211, 22 A. 146. In Middletown v. Berlin, 18 Conn. 189, 197, the rule is stated in this way:

" A power conferred upon two or more persons, by individuals, for private purposes, must be executed by all, unless it be provided by the act conferring the

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