Ferguson v. Sabo

• Decision Date: 08 November 1932
• Citation: 162 A. 844,115 Conn. 619
• Court: Connecticut Supreme Court
• Parties: FERGUSON et al. v. SABO et al.

162 A. 844

115 Conn. 619

FERGUSON et al. v. SABO et al.

Supreme Court of Errors of Connecticut.

November 8, 1932

Appeal from Superior Court, Fairfield County; Earnest C. Simpson Frederick M. Peasley, and Patrick B. O'Sullivan, Judges.

Action by James Ferguson and others against Louis Sabo and others to foreclose a mortgage. Judgment of strict foreclosure was rendered, but thereafter the judgment was opened and defendants filed a counterclaim alleging fraud, whereupon, on trial of issues to the court, judgment was rendered for defendants, and plaintiffs appeal.

No error.

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

Anthony A. E. De Lucia, of New Haven, for appellants.

Morris M. Wilder, of Meriden, and Clifford B. Wilson, of Bridgeport for appellees.

MALTBIE, C.J.

The plaintiff brought an action of foreclosure against the defendants Sabo, the mortgagors, and Philip A. Wood, who was alleged to claim an interest in the property by reason of an attachment. The action was returnable to the first Tuesday of June, 1930, and, no plea or answer having been filed, on June 27, 1930, the court entered a judgment of strict foreclosure fixing September 2, 1930, as the law day for the Sabos and the next day for Wood. It is nowhere expressly found that neither the Sabos nor Wood redeemed the property, but the course of the subsequent proceedings makes it clear that they did not. On September 12, 1930, the Sabos filed a motion to open the judgment, which was granted on October 15, 1980. On November 24, 1930, they filed an answer denying all the essential allegations of the complaint and a counterclaim which alleged a fraudulent conspiracy between the plaintiff and Gennaro and Julis De Lucia, and sought damages and certain equitable relief against the latter. The Sabos secured an order making the De Lucias parties to the action. On October 29, 1931, the Sabos filed a substitute answer and counterclaim. On the same day the plaintiff filed an amended complaint and an amended reply to the answer to the defendants' counterclaim. The De Lucias had already answered the counterclaim. With the pleadings in this condition, the action was finally tried, and on December 22, 1931, the court filed its decision, in which it found for the Sabos upon the complaint and counterclaim, and held that they were entitled to recover damages of $3,260 from the plaintiff and the De Lucias. On February 8, 1932, the plaintiff and the De Lucias filed a motion to open and vacate the judgment, on the ground that all proceedings in the action subsequent to the original judgment of foreclosure were null and void. The trial court denied this motion. The plaintiff and the De Lucias have appealed. The only grounds of error pressed are that the trial court erred in granting the motion to open the original judgment of foreclosure and denying the motion to open and vacate the last judgment.

Courts have an inherent power to open, correct, and modify judgments at the same term at which they are rendered. Wilkie v. Hall, 15 Conn. 32, 37; Hall v. Paine, 47 Conn. 429, 430; Tyler v. Aspinwall, 73 Conn. 493, 497, 47 A. 755, 54 L.R.A. 758; McCulloch v. Pittsburgh Plate Glass Co., 107 Conn. 164, 167, 140 A. 114. Ordinarily, a court may not modify a judgment at a term subsequent to that at which it is rendered, except in matters of clerical detail. Tyler v. Aspinwall, supra, page 496 of 73 Conn., 47 A. 755, 54 L.R.A. 758; Goldreyer v. Cronan, 76 Conn. 113, 115, 55 A. 594; Potter v. Prudential Ins. Co., 108 Conn. 271, 282, 142 A. 891. To this rule there are certain exceptions, and one of them is that, if proceedings to vacate or modify a judgment are begun during the term at which it was rendered and continued to a later term, the matter remains in fleri, and the court may act upon it at a subsequent term. Amy v. Watertown, 130 U.S. 301, 313, 9 S.Ct. 530, 32 L.Ed. 946; Grubb v. Milan, 249 Ill. 456, 94 N.E. 927; Wabash Ry. Co. v. City of Gary, 191 Ind. 394, 132 N.E. 737; 1 Freeman, Judgments (5th Ed.) § 197; Ann.Cas. 1916D, 1261; 34 C.J. 212. In this case the motion to open the judgment was made before the end of the term at which it was rendered. Under our established practice, all judicial proceedings undisposed of at the end of a term are continued to the next term without special order, and this would include the motion. Though the court did not act upon the motion until a subsequent term, except for the statute hereafter referred to, there would be no question of its right to grant the motion and open the judgment.

Section 5084 of the General Statutes provides that any judgment of strict foreclosure may, at the discretion of the court, upon written motion and for cause shown, be opened and modified at the term during which it was rendered or the next following term, but that no such judgment shall be opened after the title to the property has become absolute in any incumbrancer. By reason of the failure of the defendants to redeem, their rights in the property had ceased, and the qualified title which the plaintiff had previously held under his mortgage had become an absolute one. Nourse v. Lycett, 114 Conn. 432, 437, 159 A. 277. Taken literally, the statute...